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Litigation seeks teeth in “ability to pay.”

Despite efforts to end its use, the vast majority of jurisdictions in the United States still operate on a money bail system. Recent efforts have focused on requiring judges to consider a person’s ability to pay when setting bail. 

As a result of the Harris County, Texas, lawsuit, judges in that county are now accepting indigency affidavits outlining people’s financial circumstances so that bail is not set at an amount they are unable to afford.Eli Rosenberg, “Judge in Houston Strikes Down Harris County’s Bail System,” New York Times, April 29, 2017; and Campbell Robertson, “Missouri City to Pay $4.7 Million to Settle Suit Over Jailing Practices,” New York Times, July 15, 2016.  In Massachusetts, the highest state court held that judges must consider ability to pay when setting bail.Brangan v. Massachusetts, SJC-12232 (Mass. Aug. 25, 2017).