All Bail Orders are Not Created Equal

Bail Orders
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By now, everyone has heard about the arrests following the fighting and shootout at a Waco, Texas restaurant. Before any cases get filed, any plea agreements are reached, or any trials set, there was a critical stage in the due process of each defendant that has attracted a great deal of controversy and outcry in the legal community. When a suspect is arrested, a magistrate must arraign him, and a determination as to bail must be made. The judge has the option to remand the defendant, grant him a personal bond, or set a bond amount that can be secured by cash or surety. Until defense attorneys began demanding bond hearings and filing writs, every suspect arrested in Waco was being held on the same state jail felony charge, and their bond was set at the same amount: $1 million. From this identical bail order for each arrested person, it becomes doubtful that the requirements in Texas law pertaining to reasonable bail were met.

Though often cited for its prohibition against cruel and unusual punishment, the Eighth Amendment to the United States Constitution first lays out that “excessive bail shall not be required.” Article 17.15 of the Texas Code of Criminal Procedure outlines the parameters for setting bail. First and foremost, the code explains that bail shall be “sufficiently high to give reasonable assurance that the undertaking will be complied with.” If a person is charged with a high degree of felony, it may carry with it a minimum sentence of many years in prison. Thus, it may be tempting for someone to flee the jurisdiction if he can post a low bond. Conversely, when a defendant knows that his parents have put up the title to their home or vehicle as collateral for a bondsman to post a surety bond, it may motivate him to appear at court as directed.

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An issue raised by attorneys for the Waco shooting suspects is that the extremely high bond was set as a punitive measure or as a way to hold the defendants while law enforcement and prosecutors could sort through the individual cases. Both are impermissible justifications for setting the bond so high as the code outlines that power to require bail is not to be used as “an instrument of oppression.” A state jail felony is the lowest level of felony offense in Texas, and only carries a range of punishment of up to two years in a state jail facility. It is hard for most defense attorneys to imagine a scenario wherein a bond of $1 million for a state jail offense would be reasonable.

Couple that with the fact that it does not appear from reports that the individual suspects in Waco were given individualized treatment in their arraignments. The code requires that “the ability to make bail is to be regarded,” and without individualized discussions on this point, this tenet would be impossible to satisfy. This requirement in setting bail is necessary to ensure that pretrial detention is not disproportionately affecting poor defendants, while allowing more wealthy defendants charged with more serious offenses to be free while they await their trial.

The crucial arraignment and bail determination stage in the criminal justice process is often overshadowed by the subsequent final trial, but it is no less critical in ensuring due process to every person accused of a crime. It is difficult to overlook the fact that many defendants who remain incarcerated while awaiting a trial enter into plea agreements that they may not feel the urgency to agree to if they were able to prepare for trial outside of jail. It can take many months (and, sometimes, years) to have a jury trial, so fighting an allegation in court may become less prudent to a defendant who has already served enough time in jail to be released following a guilty plea.

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Many details of the Waco shooting incident and the subsequent legal proceedings have not been made public, but the initial report that the near 170 arrestees were being held on identical bail orders, raises suspicions among defense attorneys throughout the state as to those defendants’ rights. It is hard to believe that individual financial situations and particularized details of each arrestee’s role in the incident were taken into account prior to setting the same bail for everyone involved. If these minimum requirements are not met when setting each person’s bail, then the bail itself may become a means to punish poor people, overpopulate jails with pretrial incarceration, and punish defendants prior to being convicted of an offense. Sheridan Lewis

OAS

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