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.
