ACLU Sues Texas County over Pay-or-Stay Bail System

Magistrates don't consider risk or ability to pay, leaving a system where people are stuck if they're poor.


Jail cell
Sabphoto /

Aaron Booth, 36, is in jail in Galveston County, Texas, for felony drug possession. He would be free if he could afford the $20,000 bail. But he can't, and so in jail he remains.

The American Civil Liberties Union (ACLU) and the law firm Arnold and Porter filed a class-action suit Monday on behalf of Booth and people like him. They argue that because Galveston County courts determine bail from a schedule and do nothing to determine whether defendants can afford it or whether defendants are flight risks or dangers to the community, a person's pre-trial detention status is based entirely on income. According to the complaint, magistrates and deputies at these initial hearings will even threaten to raise a defendant's bail if they upset the magistrate. (We've seen claims like this before in Texas.)

This is not how bail is supposed to work. As a result, people who are poor—like Booth—end up stuck in jail. According to the lawsuit, they can end up waiting there for more than a week before getting any meaningful hearing. And the ACLU says that the next hearing they'll be offered, days later, is only for the purpose of soliciting guilty pleas. Judges won't consider bail changes, and someone who pleads innocent can end up behind bars for another week before a status conference.

The consequences are obvious. From the lawsuit: "Rather than face an extended delay before a bail hearing, many people charged with low-level crimes plead guilty rather than spending weeks sitting in jail in order to assert their innocence."

It takes only a few days for imprisonment to affect people's livelihoods. People can lose their jobs and be unable to pay various debts. Entire families can suffer. As a result, they plead guilty and often get harsher penalties than they would had they been free to fight. They have much less negotiating leverage for plea agreements when they're stuck behind bars.

The lawsuit notes the dramatic difference in outcomes between those who are stuck in pretrial detention versus those who are freed:

An audit by the Texas Indigent Defense Commission showed that, in Galveston County, misdemeanor arrestees who can afford to pay bail and fight their cases from the outside are six times likelier to have their charges fully dismissed. Felony cases show similar patterns in case outcomes: for example, a felony arrestee who cannot afford to pay bail is four times likelier to be sentenced to more than a year in prison, and is half as likely to be sentenced to probation or deferred adjudication.

The suit argues that the lack of any meaningful hearings about bail amounts or pretrial detention constitutes a violation of defendants' due process and right to equal protection under the 14th Amendment. Defendants are not provided access to lawyers until after their bail has already been set, which the ACLU argues is a violation of the Sixth Amendment.

Booth's lawyers are requesting an injunction to require the county to change its practices so that defendants can be represented at initial bail hearings, where they should be able to make a case that they aren't a flight risk or a danger to the community and that they shouldn't have to front such large amounts of money if they cannot pay.

The suit is part of a push in recent years to force changes—either via lawsuits or through legislative action—to reform the way bail operates. The federal courts have ordered Harris County, also in Texas, to stop doing exactly what Galveston County is doing here: relying on bail schedules rather than risk assessments and pretrial monitoring. The ACLU has filed a similar suit in Dallas County too.

According to the Houston Chronicle, Galveston County officials are not entirely opposed to reforming the system, and they've committed $2 million to make changes. But the ACLU apparently would like to see more urgency. The county's jail population has been increasing, in large part because of people' inability to pay for bail. Pretrial detainees now comprise 71 percent of the county jail's population.

Read the complaint here.

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  1. Pleading guilty and avoiding the system is how a vast number of people interact with criminal justice in this country, and that experience alone is enough to traumatize a person. It’s hard to fathom how humans cope with the more draconian aspects of our system.

    At every step of the way it should be clear that the harm being done to the defendant is a cost rather than a profit. At the very least we shouldn’t be incentivizing locking more people up for the sake of it.

    1. The problem is what is being optimized for. People like to think that the justice system exists to optimize and improve public safety. But just like any group, public or private, the system exists to propagate itself.

      So we have DAs trying to run up convictions to improve their chances of election. We have increasing crackdowns on easy cases so claims can be made that more funding is needing. The optimization is metrics to show off so that they can seek more money for themselves.

      1. And reading the bail off a schedule means they don’t even have to do any actual work. The system practically runs itself!

        “Sorry, my hands are tied. I really wish I could help.”

      2. The original intent was that it would optimize for justice, but it didn’t take long for that to get abandoned.

    2. That’s why you support ending the drug war and all other victimless crimes, right, Tony?

      [settles in to enjoy the soothing sounds of orthopterans]

      1. Yes, among other reasons.

        1. Tony gave up on his racists comments in the other thread and has now moved here.

    3. You can always take a case to trial and demand a speedy trial. If most defendants did that, the district attorneys would be dismissing cases left and right since they would need to prioritize trials they can win and release the loser cases.

      I am for everyone having a speedy jury trial with no plea bargains. In other words, a trial in 30 days or less. The Constitution does not force defendants to have a jury trial, so our criminal justice system is established on the behaviors of chickenshit mostly guilty defendants who will not take their case before a jury.

      1. Can you afford to take 30 days off work, and do you want to spend those days in a cage?

        1. Which is why I also advocated below: $10 bail for misdemeanors and $20 for felonies.

    4. And yet you seem to support increased regulation, which inevitably leads to more people being sent through “the system” for victimless “crimes.”

      1. Pollution isn’t victimless.

  2. As a result, they plead guilty and often get harsher penalties than they would had they been free to fight. They have much less negotiating leverage for plea agreements when they’re stuck behind bars.

    Here’s the “why,” in case that wasn’t obvious already.

  3. According to the complaint, magistrates and deputies at these initial hearings will even threaten to raise a defendant’s bail if they upset the magistrate.

    That’s on this set-in-stone schedule they use?

  4. “…or whether defendants are flight risks or dangers to the community”.

    This should never be considered part of bail. The Constitution requires bail that is not excessive. $5 does not seem excessive to me. $20,000 seems excessive to me especially for a victimless crime.

    Even murderers should get bail that is not excessive but they don’t because judges consider unconstitutional factors like flight risk and dangers to the community.

    Set bail at something like $10 for misdemeanors and $20 for felonies. If you fail to show up for court, set bail super high but no excessive. Problem solved.

    1. If the purpose of bail is to ensure the defendant shows up for trial, how is considering whether he is a flight risk unconstitutional? I would think bail should be based on a (necessarily imperfect) assessment of that risk, translated into a percentage of the defendant’s income or assets. Token bail of $5 or $10 is pointless (unless the defendant is so poor that losing that would be a real hardship).

      1. The English Bill of Rights (1689) states that “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required.”

        Defendants were kept in custody for numerous reasons with the primary motive not being make sure they return to court.

        The US Constitution changed that. The Constitution mandates that everyone is entitled to bail that is not excessive. Determining flight risk and other factors can lead to no bail which is itself unconstitutional. What happens if the person has zero income and zero assets? They are still entitled to bail.

        I think the fairest constitutional bail method is very low bail the first time and if the person fails to show up increase the bail. Higher bail is not excessive if lower bail fails to have the defendant return to court. Most people show up for court not because of bail but because they want to resolve the criminal case and don’t want a warrant hanging over their heads.

      2. The 1689 bail right was used in America’s 8th Amendment.

        You cannot deny bail and bail cannot be excessive. If a judge asked me if a $100 bail was excessive, I would reply “yes”. What percentage of your income is not excessive? What percentage of your assets are no excessive?

        I bet most people would not find $10 excessive bail.

        Own recognizance pretrial release should also be used for first timers, since a dollar amount of bail is not required by the Constitution.

    2. “The Constitution requires”

      Don’t be silly. These days, the Constitution “suggests.” We’ve already seen the First, Second, Fourth and Fifth Amendments absolutely demolished in the name of “security” and “equality.” The Constitution has very little real world relevance, beyond historical context.

  5. If the ALCU wins that case I am very confident that the number of crimes will increase. A poor person in many cases has little connection to the community as as soon as the person is out on bail, especially if guilty, the person will become a fugitive committing other crimes some of which will be serious.

    1. That line of thinking seems pretty specious, Curly.

    2. Yes, poor people have no relatives or friends. The fuck kind of logic is that.

      1. That’s why we have to put them in prisons, so they’ll make friends!

      2. It would save time to just lock up the poors in advance.

        1. Lefties do not anticipate enough room with all the 2A supporting gun owners in jail. Haha.

  6. Me: Wow the ACLU actually did something useful.

    ACLU: Yup. Now it’s back to suing cake bakers and Catholic hospitals to provide transgender surgery and abortions.

    1. Ever think maybe you’re the one with the overly sensitive cultural hangups?

      1. I take that as a compliment coming from a trust fund totalitarian like yourself, Tony.

        My hang-ups include believing in freedom of association, freedom of religion, and freedom of speech- all issues that the ACLU has abandoned in part or in total since the turn of the 21st Century and their change from a civil right group to a left-wing pressure group.

        I also enjoy long walks on the beach and reading your diatribes. I single and ready to mingle, ladies!

      2. Forcing bakers to bake cakes for people they don’t want to sure is a bad thing.

        1. No, bakers being bigoted assholes is a bad thing. Which they are free to do in the privacy of their homes.

          1. “being bigoted assholes is a bad thing”

            Unless they’re bigoted against people who Wrongthink, in which case it’s just hunky-dory. The standards should only apply to people who are Bad, not to people in my collective who are Good and Just.

            A baker who doesn’t sell a cake to a gay couple (despite state and local law that bans such discrimination) is a “bigoted asshole,” but an ad agency in New York City who fires an openly gay employee for his “Twinks for Trump” photography project (despite state and local law that bans such discrimination) is “resisting fascism.”

            Such is the “logic” of authoritarianism and big government in general — arbitrary and capricious to the end.

          2. Advocating the use of force to make someone bake a cake (or suffer complete financial ruin) using the government (at the point of a gun) makes you a slaver.

            At least you could be honest and just advocate for the arrest and reeducation of those you deem biggoted.

            Us libertarians will continue to advocate for freedom of thought and freedom of choice. Even bad thoughts and bad choices.

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