Fifth Circuit: Bail System Violates Due Process & Equal Protection

Organizations around the country have called for bail reform. Here at home, a report by the North Carolina Commission on the Administration of Law and Justice recommended that North Carolina move forward with pretrial justice reform. A recent Fifth Circuit case holding that the bail system in Harris County, Texas violates due process and equal protection may create an impetus for jurisdictions to act: Litigation risk.

In ODonnell v. Harris County, Texas, 882 F.3d 528 (5th Cir. 2018), plaintiffs brought a §1983 lawsuit alleging that the County’s system of setting bail for indigent misdemeanor defendants was unconstitutional. Id. at 534-35. In Texas—as elsewhere—secured bail requires a defendant to post a bond, either out of pocket or from a surety, often a bail bondsman, who requires a non-refundable fee. Id. at 535. Unsecured bail allows the defendant to be released without money down up front, but imposes liability on the back end if the defendant fails to appear or comply with conditions. Id. at 535. In Harris County, when a misdemeanor defendant is arrested, the prosecutor asks for a secured bond amount according to a bond schedule established by local judges. Id. Hearing Officers set bail, at a probable cause hearing to be held within 24 hours of arrest. Id. A judge reviews that determination at a “Next Business Day” hearing. Id. When making bail determinations, state law requires an individualized review of things like ability to pay, the charge, and community safety. Id. at 536. The bond schedule is not supposed to be mandatory and Pretrial Services sometimes offer bail recommendations. Id.

The federal trial court found, however, individualized assessments do not actually occur. The probable cause hearing frequently is not held within 24 hours of arrest; it often last seconds; and defendants are told not to speak and are not given an opportunity to offer evidence. Id. Secured bail is set in about 90% of cases and often is changed only to conform to the bail schedule. Id. Pretrial Services’ release recommendations are rejected 66% of the time, and because fewer than 10% of misdemeanor defendants are given an unsecured bond, some amount of upfront money is required for release in most cases. Id. The federal district court also found the Next Business Day hearings deficient: defendants typically wait days for hearings; judges adjust bail amounts or grant unsecured bonds in less than 1% of cases; and prosecutors routinely offer time-served plea bargains at the hearing, which defendants have to accept or face going back to jail for days or weeks until they get appointed counsel. Id. The district court also found that the system targets poor defendants. Id. Under the County’s risk-assessment system, for example, poverty indicators, such as not owning a car, receive the same point value as prior criminal violations or failures to appear (FTAs). Id. And the court noted, Hearings Officers impose secured bonds on arrestees after being made aware of their indigence, thus knowing that secured bail will ensure detention. Id. at 536-37. The trial court rejected the County’s argument that imposing secured bonds protects against FTAs and promotes community safety, citing a lack of evidence that they achieve these results better than unsecured bonds. Id. at 537. Instead, the district court found that the County’s true purpose was to detain misdemeanor defendants who lacked money to pay for their release and that secured bail functions like a pretrial detention order against indigent defendants. Id. It also noted the significant negative “downstream” consequences of pretrial detention, including a greater likelihood that defendants will plead guilty, be sentenced to imprisonment, and get longer sentences. The trial court concluded that the plaintiffs established a likelihood of success on the merits of their claim that the County violated both the procedural due process rights and the equal protection rights of indigent misdemeanor defendants and imposed a preliminary injunction. The County appealed.

The Fifth Circuit affirmed the district court’s rulings that the bail system violates both due process and equal protection. Id. at 540. As to due process, the court held that Texas law creates a protected liberty interest:

Texas state law creates a right to bail that appropriately weighs the detainees’ interest in pretrial release and the court’s interest in securing the detainee’s attendance. Yet . . . state law forbids the setting of bail as an “instrument of oppression.” Thus, magistrates may not impose a secured bail solely for the purpose of detaining the accused. And, when the accused is indigent, setting a secured bail will, in most cases, have the same effect as a detention order. Accordingly, such decisions must reflect a careful weighing of the individualized factors set forth by both the state [statute] and Local Rules.

Id. at 541. The court then held that the County’s procedures insufficiently protected that liberty interest. Id. It held however that the trial court went too far in its remedy. The district court had specified the following procedures to satisfy due process: notice regarding the purpose of the information collected by Pretrial Services; a hearing with an opportunity to be heard and present evidence; an impartial decision-maker; written findings by the factfinder; and proceedings within 24 hours of arrest. Id. The Fifth Circuit made two modifications to this “procedural floor”: it rejected the requirement of written findings; and it concluded that due process only requires a hearing within 48 hours. Id. at 542-43.

The court then affirmed the trial court on the equal protection claim, stating:

[T]he essence of the district court’s equal protection analysis can be boiled down to the following: take two misdemeanor arrestees who are identical in every way—same charge, same criminal backgrounds, same circumstances, etc.—except that one is wealthy and one is indigent. Applying the County’s current custom and practice, with their lack of individualized assessment and mechanical application of the secured bail schedule, both arrestees would almost certainly receive identical secured bail amounts. One arrestee is able to post bond, and the other is not. As a result, the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration. The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart. The district court held that this state of affairs violates the equal protection clause, and we agree.

Id. at 545. Having found due process and equal protection violations, the Fifth Circuit remanded for an appropriate remedy to cure the constitutional infirmities. Id. at 545-46.

Will this case be a new impetus for pretrial justice reform? Chime in with your thoughts!