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By choice and by force, courts are reckoning with their use of money bail

One of the unprecedented trends of 2017 was the extent to which the courts engaged in bail reform, both of their own accord and through litigation aimed at ending wealth-based detention. In April 2017, after a two-week hearing in a lawsuit challenging the misdemeanor money bail system in Harris County, Texas, Judge Lee Rosenthal of the U.S. District Court issued a scathing 193-page opinion finding that the county violated the U.S. Constitution by imposing money bail without any consideration of a person’s ability to pay.Odonnell v. Harris County, Texas, Civil Action No. H-16-1414 (S.D. Tex. Apr. 28, 2017). The case is now on appeal in the Fifth Circuit, where it was argued in October 2017. Regardless of that court’s decision, the impact of the litigation and Judge Rosenthal’s decision has spurred new lawsuits and emboldened other jurisdictions to take on bail reform. 

Recognizing that poverty was driving unnecessary pretrial detention in their jurisdictions, the highest state courts in ArizonaMaryland, and New Mexico passed new court rules and procedures governing bail decisions, including restrictions on the use of money bail.For New Mexico, see New Mexico Courts, “Court Rules for Pretrial Release and Detention,”For Maryland, see Caryn York and Larry Stafford “One Small Step Forward on Bail Reform in Md.,” Baltimore Sun, June 29, 2017. For Arizona, see Task Force on Fair Justice for All, Justice for All—Report and Recommendations of the Task Force on Fair Justice for All: Court-Ordered Fines, Penalties, Fees, and Pretrial Release Policies (Phoenix, AZ: Arizona Supreme Court, 2016)Arizona Supreme Court, “Task Force on Fair Justice for All,”; and Supreme Court of Arizona, Administrative Order 2016-16 (Establishing the Task Force on Fair Justice for All), March 3, 2016. The new rules require judges to consider nonfinancial alternatives, such as pretrial supervision and other conditions of release, as a first option, and to set cash bail as a last resort. The chief judge of the Circuit Court of Cook County, Illinois, issued a similar decree, effective September 2017 for felony cases and January 1, 2018 for non-felony cases.Circuit Court of Cook County, Illinois, General Order No. 18.8A (procedures for bail hearings and pretrial release). Collectively, these orders reduce reliance on money bail, roll back wealth-based detention, and aim to promote fairer bail decisions.