A federal appellate court today will hear arguments in a basic tenent of American jurisprudence: whether the time honored system of requiring a person accused of a crime to post a cash bail to be released from jail pending trial is unfair, because individuals who can't afford bail are held, sometimes for years, without being convicted of any crime, News Radio 1200 WOAI reports.
The case, O'Donnell et al v. Harris County, stems from a case in Houston, where a judge ruled that the bail system is unfair because the poor sit in jail while wealthier people, who are facing the same charges, are held in custody.
The judge in that case pointed out that the Constitution itself says an individual cannot be deprived of liberty without being judged guilty by a jury of his or her peers, and these individuals have not been judged to be guilty of anything.Attorney Jeff Clayton, who heads the American Bail Coalition, will tell the court that this system is unfair, and judges should have the power to adjust the bail bond system when appropriate.
"It's easy on the outside to say 'if they can't afford their bail, they can't afford their bail'," he said. " But what we don't know is..what does their background look like, what does their criminal history look like."
At issue is what is called the 'set bond' structure which is in place in most Texas counties, which requires that a certain bail be set for a certain level of crime.
But Clayton says getting rid of the cash bail system entirely would be irresponsible, and would lead to an increase in crime.
"What we have seen in Harris County that a large number of people who have been released since this ruling have committed additional crime," he said.
Clayton says if judges were empowered to make decision on the advisability of releasing a person on bail, without bail, or with some other sureity, like electronic monitoring, it would insure that justice is served, the public is safe, and poor people are not punished simply for being poor.
The whole concept of bail, officials point out, is not to punish a person but to insure that the person appears for trial, and that now can be done by means other than cash bail.