On Thursday afternoon, U.S. District Judge David Godbey issued a temporary ruling that enjoins Dallas County from using a predetermined bail schedule without considering an arrestee’s ability to pay. While this decision is temporary as the lawsuit winds its way through the court, it does indicate that the federal judge thinks the plaintiffs – several individuals, including Shannon Daves, whom I wrote about here – are likely to win at trial.
Prior to this decision, arrestees in Dallas County appeared before a judge for a bail hearing that took less time than it does to order a drink at Starbucks. A video produced as part of the discovery from the lawsuit shows the assembly-line justice that the lawsuit argues is unconstitutional. While the bail hearings are closed to the public—including faith groups and community leaders who have asked to observe the procedure—I was able to get permissions to observe a few rounds of bail hearings in the Lew Sterrett Justice Center.
Held in a basement next to the room where arrestees are searched and examined by medical professionals, the hearings, which are supposed to occur relatively quickly after arrest, basically give the judge a chance to tell each arrestee the charges and the preset bail amount. Most of the time, arrestees don’t even speak. Sometimes, people don’t know what the arrest is for since the action could have been weeks or months earlier. No one was allowed to argue that their bail amount was set beyond their ability to pay, even for those arrested for minor misdemeanors like fare evasion or loitering.
At any given time, about 70 percent of the 5,000 people held in the Dallas County Jail are there only because they cannot afford to pay bail – in other words, they are innocent but don’t have much cash. The movement to eliminate cash bail is one of many aimed to reduce jail populations and make the system less unfair for the poor, who are disproportionately held pretrial because they can’t pay bail. Being held in jail pending trial has been shown to reduce the likelihood that an arrestee will win at trial. Most people will simply plead guilty, especially if it allows for their immediate release. The amount of time people are held before trial—between four to 10 days for misdemeanors, longer for felonies—often is longer than the actual punishment itself.
On the other side of the coin, there are people charged with serious crimes who are released immediately on bail. Take Amber Guyger, who shot and killed Botham Jean in his apartment. She was arrested and charged with manslaughter, and given a $300,000 bail amount per the bail schedule. Within just one hour, Guyger posted her bond – typically about 10 percent of the bail amount – and went home.
Judge Godbey’s order now requires Dallas County to require arrestees to fill out forms providing their financial status in order to allow the court an opportunity to assess their ability to pay. It also sets a 48-hour time limit for an individual hearing if someone is being detained and says they cannot pay. It’s important to bear in mind that this is a temporary decision, called a preliminary injunction, which is intended as a stop-gap before a full resolution is worked out. The county has 30 days to implement an improved system.
The judge’s written decision also indicates that he thinks Dallas County is likely going to lose the case against it, despite Dallas County’s argument that it already had reformed the bail system. “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,” Godbey wrote in his decision.
“The federal court confirmed what we all know to be true, that Dallas County has been violating the constitutional rights of thousands of arrestees everyday,” said Elizabeth Rossi, an attorney with Civil Rights Corps and lead attorney on the case. “It definitely doesn’t go far enough. It’s a preliminary ruling granting immediate relief for thousands of people.”
Judge Godbey’s decision isn’t surprising. A similar lawsuit in Harris County also resulted in a court decision ordering the county to change its bail procedures. (Whether and how this will be done is a different story. Harris County misdemeanor judges reportedly have been kicking up a storm.) And, Dallas County officials have long been aware (or should have been aware) that the current bail schedule, which gave no allowances to consider what an arrestee could afford, was not going to withstand scrutiny.
But, officials seemed to be moving slow and were hoping to implement a risk assessment system before changing the bail procedures. In an email, Judge Clay Jenkins said, “Hopefully, today’s ruling will speed up the implementation of a race neutral risk assessment tool.”
“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,” he said.
County Commissioner John Wiley Price told the Dallas Morning News that the ruling “no big imposition.”
This decision now means that things have to change whether Dallas County feels ready or not.