According to the Bureau of Justice Statistics, more than half of the jail population in the U.S. has never been convicted of a crime. That’s some 420,000 people, give or take a few thousand. They are in jail because they cannot afford the cash money or other forms of surety needed to give to a bail bondsman who will make bail for them.


Only Philippines and U.S Still Use Antiquated Pay for Play Bond System


Money bail is a lucrative, cash-cow business, both for the bail bonding industry and the judges or magistrates who set the bail amount. The bail bondsmen pull in the cash and will then contribute a good piece of it to the judges’ reelection campaigns. And if an arrested person is too poor to take part in this corrupt pay-for-play bail system—a three-party contract between the bail bondsman, the court and the defendant—they will just remain in jail pending final disposition of the criminal charges against them.


This corrupt pay-for-play bail system—more commonly referred to as the “for profit” bail system—is a $2 billion industry controlled by roughly 15,000 bail bondsmen. The U.S. and Philippines are the only two countries in the world that maintain corrupt pay-for-play bail systems. We posted a blog just last September about how this corrupt system works in the U.S.


Wealth Based Discrimination


Harris County is one of the worst counties in the country operating a wealth-based bail system, as we pointed out last August. Any wealth-based system is inherently discriminatory. Wealth alone determines when a benefit will be extended, thus non-wealthy people are excluded from the benefit because they do not have the money to pay for it.


As reported in the Houston Chronicle on May 3, 2017, Chief U.S. District Court Judge Lee H. Rosenthal found the Harris County’s practice of detaining poor people arrested for low-level crimes is fundamentally unfair because their pre-trial detention is based solely on their inability to afford bail; in other words, they cannot afford to pay to play in the county’s bail system.


Harris County’s Bail System Violates 14th Amendment, Due Process and Equal Protection


In his scathing 195-page ruling, Judge Rosenthal said the county’s bail system, which horribly discriminates against indigent offenders, violates both the due process and equal protection provisions of the Fourteenth Amendment to the U.S. Constitution. The federal judge did not just snatch this conclusion out of the sky. His opinion, as reported by the Chronicle, cites Texas Supreme Court Chief Justice Nathan Hecht open criticism of the for-profit bail system: “Liberty is precious to Americans and any deprivation must be scrutinized.”


County Attorney Fights Reforms


The Harris County Attorney’s Office and some local judges do not share either Judge Rosenthal’s or Chief Justice Hecht’s well-founded denunciation of the for-profit bail system. At the time of the federal court ruling, the Chronicle reported that the county has already spent $2 million dollars defending the bail system in federal court. The newspaper said that First Assistant County Attorney Robert Soard is reviewing the Rosenthal ruling. He said his office has retained the services of prominent D.C. appellate attorney Charles Cooper to represent “the interests of 15 county criminal court law judges who oppose” the ruling.


To be fair, there are some prominent criminal justice officials dedicated to reforming the broken Harris County bail system. Last year Harris County Commissioners allocated more than $3.3 million from the general fund to help pay for these reforms. That funding came after the Commissioners voted to accept a $2 million grant from the MacArthur Foundation dedicated to bail reforms.


District Attorney and County Commissioner Fight for Bail Reforms


And both newly-elected District Attorney Kim Ogg and County Commissioner Rodney Ellis issued statements that praised Judge Rosenthal’s ruling.


The Chronicle reported Ogg’s statement, in part: “This is a watershed moment in Harris County criminal justice history. From now on, people can’t be held in jail awaiting trial on low-level offenses, just because they are too poor to make bail. We welcome the ruling and will comply fully with it.


Ellis’ statement echoed the same sentiment: “Harris County’s bail system is unconstitutionally unfair and morally indefensible – and we now have a federal court ruling telling us so. It is time for us to fix a broken justice system that favors the privileged and punishes the poor for being poor.”


The federal ruling came in response to a civil rights lawsuit filed by the Texas For Fair Defense Project and Civil Rights Corps and the law firm Susman Godfrey. The plaintiff in the lawsuit is a single mother who was kept in jail two days because she could not make a $2500 bail for the misdemeanor offense of driving without a valid license.


Time to Shift to Risk Based Bail System


While Judge Rosenthal’s ruling will be confined to Harris County, it will certainly provide persuasive authority to the growing number of states and counties across the country who are turning away from the for-profit money bail system to risk-based systems governing pre-trial detention. In other words, offenders who pose little or no risk to public safety are automatically released without bail until final disposition of the case against them.


Risk-based systems are not only fairer but much more effective in terms of public safety than the profit driven money bail system. Under the money bail system, once a judge or a magistrate sets the amount of bail, public safety is no longer a concern. The only concern at that point is for the bail bondsmen to find as many defendants as possible with enough money to post bail. They are driven by profit, not public safety concerns. Risk-based systems, on the other hand, consider public safety first and foremost –and their risk calculus can effectively determine who poses little, if any, threat to public safety.


Last November New Mexico voters approved a bail amendment to that state’s constitution which specifically prohibits judges from detaining low-risk individuals who cannot afford to make bail and who are likely to show up for their court dates. In Alabama, municipal courts in 50 cities have adopted similar risk-based systems.


Risk-based systems allow both municipal and criminal courts to detain those dangerous offenders who pose an obvious and serious threat to public safety. It releases only those offenders who pose no threat and who can be released back to their families, jobs and community until their criminal justice issues are resolved.


We applaud Judge Rosenthal’s ruling because, as Commissioner Ellis said, the county bail system currently in place is both constitutionally and morally indefensible.