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On August 9, 2017, Jenner & Block filed an amicus brief in the Fifth Circuit Court of Appeals on behalf of the American Bar Association (ABA), in suit challenging the constitutionality of Harris County, Texas’ money-bail system’s practice of detaining defendants prior to trial.
In O’Donnell v. Harris County and McGruder et. al. v. Harris County, the plaintiffs were arrested under misdemeanor charges and bail was set at prescheduled amounts, which they could not pay. A federal district court ruled that the predetermined bail schedule was treated as a “nearly irrebuttable presumption in favor of applying secured money bail at the prescheduled amount.” The court issued a preliminary injunction ordering the court to release misdemeanor defendants on personal bond – not secured by cash in advance - within 24 hours of being arrested. Harris County appealed to the US Court of Appeals for the Fifth Circuit.
The brief in support of the plaintiffs argues that money-bail systems that fail to consider adequately a defendant’s ability to pay violate the ABA’s criminal justice standards and that jailing otherwise release-eligible defendants because they cannot buy their freedom is unconstitutional. It explains that, after studying the issue over many decades, the ABA has concluded that money bail harms criminal defendants, does not serve the fair and proper administration of justice, and does not advance public safety or the interest of justice. The brief also explains that a consensus has developed that money-bail schemes are unfair and do not work. It urges the Fifth Circuit to affirm the decision of the federal district court.