I should have spent a bit more time talking about the Conference of Chief Justices’ brief in the Harris County case because it really is remarkable. You can find it here.
Remember that Harris County was sued in federal court over its bail practices, which were built upon the Texas bail laws. In a preliminary injunction, the federal district court judge essentially said that the way Harris County was using money bail violated the U.S. Constitution.
Now normally if that happened in any other area of the law, you’d see all the other states join together with Texas and say, “Whoa, now, we don’t need a federal court telling us how to do stuff – back off and we’ll take care of it in our court system.” And in most other areas of the law, the federal court might think, “Well, maybe I should just defer to the states on this one.”
But when it comes to bail and no bail, the Conference of Chief Justices – made up of the chief justice in every state, D.C., and American territories – essentially said the opposite. It said, “No, we actually need some help from the federal court because, “Despite general consensus and some notable reform, the promise of equal pretrial treatment for indigent defendants remains elusive.” In fact, it said, “Current bail reform practices will remain largely stalled pending clearly articulated constitutional principles that protect public safety and the pretrial rights of indigent defendants.”
The CCJ wrote that technically it wasn’t taking any sides, but then it came right out and wrote: “The Fourteenth Amendment prohibits the use of monetary bail that results in the detention of indigent defendants solely due to inability to pay.” There’s a reason why ABC went on a rant after the CCJ filed its brief, basically calling the justices liars (or “half” liars), blind to the truth, and arrogant (by the way, great strategy, ABC!). Of all the amicus briefs, this is the one that flattens the bail industry. This brief might irritate you, ABC, but you brought it on yourself by fighting the justices at every turn. This generation of reform could have been defined by the bail industry helping the states and the chief justices to find the answers; instead, you all turned it into a war with you versus everyone else.
To me, the only thing holding back the Fifth Circuit Court of Appeals from affirming the district court would be some concern that it might be infringing on an area that the states felt they could handle. In this brief, the CCJ says, “Go ahead – you’re not infringing and we actually need it.”
If there’s a tipping point in this generation of American bail reform, then August 9, 2017, the day when every chief justice in America asked the federal courts to set limits on how the states use money bail, might just be it.