Bail Must Account for Suspects' Ability to Pay, Judge Rules in Dallas County

by | September 21, 2018

By Julieta Chiquillo and Cary Aspinwall

In a major victory for civil rights groups, a federal judge has banned Dallas County from using a predetermined schedule to set bail without considering other amounts or alternatives that would allow the suspects' release from jail.

Though U.S. District Judge David Godbey's order is temporary, his ruling Thursday indicated that the groups that sued the county earlier this year "are substantially likely to prevail on the merits" of their arguments.

Godbey wrote that the policy of setting bail without regard for a defendant's ability to pay violated the constitutional rights of arrestees to equal protection under the law.

"Wealthy arrestees -- regardless of the crime they are accused of -- who are offered secured bail can pay the requested amount and leave. Indigent arrestees in the same position cannot," the judge wrote in his opinion.

Godbey ordered Dallas County to provide suspects booked at its jail with an individual hearing within 48 hours if a magistrate judge doesn't release them after they've indicated they cannot afford bail.

"Because the court recognizes that the County might need additional time to comply with this requirement, the County may propose a reasonable timeline for doing so," he wrote.

Per the judge's order, an impartial decision-maker -- most likely a magistrate judge -- must make an individual assessment of whether an amount of bail or an alternative condition provides sufficient guarantee that the suspect will appear in court.

The suspect must have a chance at the hearing to provide evidence in his or her favor, and to dispute evidence provided by law enforcement. If the decision-maker declines to lower the bail from the prescheduled amount, then he or she must provide "factual findings" explaining the reasoning on the record.

Godbey ordered the county to allow suspects to fight the decision in a formal adversarial hearing before a misdemeanor or felony judge.

In January, four nonprofits filed a federal civil rights lawsuit alleging the Dallas County jail's cash bail system unfairly harmed poor people and violated the Texas and U.S. constitutions.

Dallas County officials had pledged to reform the system after The Dallas Morning News published an article on a woman jailed on $150,000 bond for a $105 shoplifting charge, but the nonprofits who filed the lawsuit said the system never really changed.

The suit was filed on behalf of six Dallas County inmates, jailed on bond from $500 to $50,000.

The judge's ruling agreed that cash bail continued as usual in Dallas County, noting that even though magistrates were told in February to consider a financial affidavit asking how much bail arrestees could afford, routine reliance on fixed bail schedules was still common practice.

Under Godbey's order, pretrial staff at the courthouse must verify an arrestee's ability to pay bail and must explain the process to them, and deliver a completed affidavit to the Dallas County Sheriff's Office before a defendant's probable cause hearing.

The affidavit will allow defendants to explain the maximum amount they could reasonably afford within 24 hours of the arrest, from any source, including family and friends. It will ask about income, debts and other expenses.

It won't apply to defendants who are ineligible for pretrial release due to a hold by another agency, a pending mental health evaluation or pretrial detention orders that deem them too dangerous to be released.

If a suspect has sworn on the affidavit that he or she can't afford to pay any amount of cash bail, and the magistrate doesn't release them on a personal bond that has no financial conditions, then the suspect is entitled to a hearing within 48 hours of arrest.

All non-financial conditions of release ordered by the magistrates, including protective orders, drug testing, alcohol intake ignition locks, or GPS monitoring, will remain in effect.

Elizabeth Rossi of Civil Rights Corps, the lead attorney for the plaintiffs, hailed Thursday's ruling but said his order is temporary and "does not go far enough yet."

"The federal court's decision confirms that Dallas County's money bail system is flagrantly unconstitutional," she said in a prepared statement. "Despite claiming to have implemented changes, the federal court found that the county has routinely ignored an arrestee's ability to pay money bail, still uses arbitrary bail schedules, and has made no real progress on their practices."

At a federal court hearing in August, Rossi and her colleagues introduced as evidence video clips from Dallas County hearings in early July that showed magistrates spending seconds on individual suspects as they announced the charges and bail amounts.

The attorneys argued that the bail amounts rarely deviated from the schedule.

Katharine David, an attorney for Dallas County through the law firm Husch Blackwell, said the county does not comment on pending litigation.

County officials were optimistic about the ruling. Dallas County Commissioner John Wiley Price, who's involved in regular county meetings regarding the jail population, said the judge's order was expected. He pointed to at least $2 million to beef up pretrial services that the Commissioners Court approved this week as part of the 2019 budget.

Among other things, the money will be used to hire more staff in the public defender's office so that suspects can have representation at bail hearings.

Those hires have not been made yet. But bail hearings, long closed to the public, can now be viewed through a monitor in the lobby of the jail.

"We feel like we're in good shape," Price said. "We're doing exactly what our plan has been all along. It's no big imposition on us in terms of us continuing to go forward."

This summer, the county also committed to funding a risk-assessment tool to help inform judges' decisions.

County Judge Clay Jenkins, who presides over the Commissioners Court, said in a statement that if the jail population drops to a certain level, the county could close a tower and save taxpayers $20 million a year.

"Hopefully, today's ruling will speed up the implementation of a race neutral risk assessment tool," he wrote. "Other jurisdictions who are using these tools have experienced a significant drop in jail population as low risk defendants are released pending trial and high risk defendants (even those with access to money) are not."

(c)2018 The Dallas Morning News