Thursday, January 6, 2022
Amanda Woog and Nathan Fennell (Texas Fair Defense Project and Texas Fair Defense Project) have posted Power and Procedure in Texas Bail-Setting (74 SMU L. Rev. 475 (2021)) on SSRN. Here is the abstract:
As advocates’, lawyers’, and legislators’ bail reform efforts intensify in Texas and throughout the country, we consider the limits of pretrial procedural protections when judges do not follow the law, access to courts is limited, and people do not have quality assistance of counsel. Given this reality in most bail-setting courts in Texas, formal procedural requirements, like mandating that bail-setting magistrates consider certain factors when making initial bail decisions, do not achieve their promise. More than a procedural or legal problem to be addressed, we consider the nation’s addiction to pretrial detention as one that was created by—and must be addressed through—exercises of social and political power. We identify ways that organizers are working to shift power in the pretrial context, encourage lawyers and activists alike to think about legal change in this arena as a necessary but not sufficient condition for meaningful reform, and hope to inspire further collaboration toward the power-shifting goals we see as necessary for long-term success.