Is it time to bail on the bond system?

In Maryland whenever someone was arrested they would be brought before a judge who would determine if the defendant should be granted bail, should be held without bail or should be released on their promise to appear in court. This system functioned efficiently - primarily because it excluded lawyers.

At least that's how they used to do it before the Maryland Court of Appeals found the bond hearings to be unconstitutional because defendants were denied the assistance of counsel. Now the state is scrambling to find a new way to decide who gets to sit in jail awaiting trial and who gets to sleep in their own bed. Due to the cost of providing additional public defenders and prosecutors at bail hearings, the state is considering doing away with the entire bail bond system.

Of course the bondsmen are a powerful lobby who have a direct interest in the way this matter proceeds. And they have friends - trial lawyers - in the Maryland legislature who love the campaign contributions.

The purpose of bond has always been to assure a defendant shows up in court. The seriousness of the charge and whether the defendant is a danger to society are other factors that come into play - but the presumption is that every defendant is entitled to bail. The system has become one in which those who have the resources are able to bond out while those without money, who are charged with identical offenses, sit behind bars until their cases are disposed.

The ruling in Maryland interests me because we have a similar system here in Harris County. If you are arrested in Harris County you will be taken before a magistrate on video. The magistrate will admonish the defendant to keep his damn mouth shut and will then determine the bond amount. For virtually every case that amount is written on a sheet of paper - the county bond schedule.

Harris County misdemeanor bond schedule

Harris County felony bond schedule

The defendant isn't afforded the assistance of counsel at this hearing. There is no one to speak for him. The case is filed, the defendant is admonished and the judge looks down at a piece of paper to determine how much it'll cost the defendant to sleep in his own bed while his case is pending.

The Sixth Amendment has been interpreted to mean that a criminal defendant is entitled to the advice of counsel at any crucial stage in our criminal (in)justice system. But, in Harris County, that initial bond determination isn't considered a crucial stage in the process.

The benefactors are the county's bondsmen who exact their pound of flesh before sending the magic paper to the county jail. The other benefactors are the judges who can rely upon the bond system to coerce defendants behind bars to plead out their cases in order to go home. Just imagine the chaos if every criminal defendant had the ability to fight their case from outside the jail. No longer would the state have the added bonus of pretrial incarceration as a negotiating tool.

Of course we have other problems in Harris County - most stemming from attorneys and judges who don't bother to read Article 1, Section 11a of the Texas Constitution. That provision sets forth who can be denied bail and how that determination is to be made. According to the Constitution, a defendant may only be held without bail (on a non-capital case) if a hearing is held within seven days of his arrest to determine whether or not the state can deny bond. Very few people know this and very few attorneys ever litigate the matter. Ask a prosecutor about it and they'll just tell you the bond schedule says he doesn't get a bond.

In a sane world the notion that a pretrial hearing to determine whether a defendant is entitled to a bond is not a crucial stage in the process would be laughable. Here in Harris County it's called "doing business."