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!

19 thoughts on “Fifth Circuit: Bail System Violates Due Process & Equal Protection”

  1. It’s far worse in rural NC counties, where there are no public defenders and most private attorneys who want these cases are negligent and incompetent. These lawyers urge plea deals on defendants, so that they can be paid faster. A defendant who can’t make bail may lose a job, a home, custody of children . . .. The bail system creates many problems,

    • Gloria,
      To your point: Evidence shows that pretrial incarceration significantly increases the likelihood of pleading guilty for no reason relevant to guilt. In a recent study of almost 400K Defs researchers concluded that “approximately 17% of the detained misdemeanor defendants . . . who pleaded guilty would not have been convicted at all had they been released pretrial. They pleaded guilty because they were detained.”

    • Your comments are offensive and ignorant. Please provide evidence to support your statement that “most private attorneys who want these cases are negligent and incompetent.”

  2. We’ve been fighting this battle a long time. At least in Wake County most of our judges routinely ignore the law and impose secured bonds when such bonds are unlawful, forcing poor people to either plead guilty to get out of jail (regardless of actual guilt or innocence) or stay in jail for an undetermined amount of time awaiting trial.
    The Fifth Circuit ruled that the reasons for imposing a secured bond do not have to be put in writing but the official imposing the secured bond must explain his or her reasons to the accused. We usually don’t receive that explanation here even when we directly ask for it.
    Bring on some reforms!

      • Professor Smith – That “blueprint for reform” is 72 pages long yet the section for recommendations for reform to the pretrial release (bail) system is short and offers no recommendation reasonably calculated to address the actual problem of judicial officials holding accused people unlawfully under a bond (whether unlawful because the bond is secured without legal grounds or because the bond is excessive). The recommendation is to use better computer analytics such as a referenced program for analyzing defendants’ situations. Better tools do not address the problem. The crux of the problem is that judicial officials reject the law in order to hold defendants unlawfully in jail. Better tools for analyzing the defendants’ situations will do no good so long as the judicial officials choose to ignore the defendants’ situations. The simple, easy reform that is necessary as the starting point for bail reform is to eliminate the loophole language in 15A-534(b). That language says the judicial official when imposing a secured bond “must record the reasons for so doing in writing to the extent provided in the policies or requirements issued by the senior resident superior court judge…” The needed reform is to take out the “to the extent provided” etc language because with that language a senior resident superior court judge can set the “extent” of the writing at zero, as has happened in Wake County. That eliminates accountability and transparency, leaving defendants incarcerated under secret accusations, accusations presumably of being a flight risk or danger of some kind. In reality the judicial officials will tend to ignore the law unless there is transparency and accountability. We need to eliminate this loophole so the law as written right now can be enforced. WE need to make the judicial officials put in writing their reasons for holding an accused person in jail under a secured bond.

  3. I work in a rural county in North Carolina and, as part of my practice, I accept indigent cases. I am neither negligent nor incompetent and I do not urge plea deals on defendants so that I can be paid faster. In fact, the resolution of the case has makes no difference to the speed in which I get paid. If you want to complain, complain about the rates and the methods upon which appointed lawyers are paid. There are problems, but the broad brush does not address them.

  4. The 5th Circuit ruling stated that Harris County’s pretrial process was unconstitutional, however, what this article does not point out that the ruling also stated that the use of financially secured release and bail schedules were constitutional as long as a hearing takes place within 48 hours. To say this ruling was monumental and proves that so called money bail is unconstitutional is misleading and false. Harris Counties current system and how they are supposed to operate does not violate the equal protection and due process sections of the 14th ammendment. The issue is how Harris County was implementing the system, which was not in accord with the law and yes, unconstitutional because of that. The solution isnt to eliminate bail, it is to make sure that once a bond is set that each and every defendant has the opportunity to get in front of a judge to have that bond lowered. Every local criminal justice system has that component as part of their existing statutes (if not 48 hours, something pretty close). The reality is that the current bail systems across the country already have the mechanisms in place to address the issues being raised by bail reform advocates. If someone is truly indigent and can’t afford to bond, the judge already has the ability to release that individual on their own recognizance. If someone is indigent and still sitting in jail, the reason is never because they dont have money. The reason has to do with what it is the judge knows about the person that makes them a risk to release on their own recognizance. What the family knows about the person and the risk they pose to fail to appear if they bail him out. If proponents of bail reform want to truly solve the problem of overcrowded jails and prisons it is time to stop blaming the bail system and instead start looking at why people are committing crimes in the first place. It is time to start looking at why children are being raised without fathers and why our education system keeps underpreparing our children for life and success. Those are the real issues. Solve those and crime issues disappear. if we keep giving criminals excuses and remove accountability from them for their actions…all we can expect is more crime and worse behavior.

    • It is clear that you do not practice criminal defense or you live in a magical area where the mechanisms in place to address the issues being raised by fail reform advocates are being used. The judge may have the ability to release an individual who cannot afford the bond but a lot of the time (most in my experience) they do not. Plenty of people are in jail because they don’t have the money to get out. I have had magistrates in my jurisdiction tell me that the only factor that matters for their job is the bond schedule. They also say they have to set a secured bond in cases where it is not required by law. Here judges do not do an individual assessment of a person’s ability to pay. Many won’t unless they are forced to by this type of litigation. Having an appearance in front of a judge with 48 hours doesn’t have much meaning when you don’t have the right to counsel. There is a stark difference between what happens to defendants pretrial in jurisdictions where they get counsel at first appearance and where they do not. Look at the numbers and outcomes in Durham County since the county funded a position for representation at first appearance. Unfortunately the jurisdiction where I practice is not unique. At least we have pretrial services and the judges tend to listen to them. I agree about addressing other issues that affect crime in this country but that does not mean bail reform doesn’t need to happen.

  5. Magistrates are expected to follow the guidelines set by the judge not the statutes governing pre-trial release conditions.

  6. You wouldn’t just happen to be the author Gloria Wolk who lives in New York, would you? If so, we would be interested in learning when you got your first hand knowledge about rural attorneys in North Carolina?

  7. As a Magistrate in one of NC’s rural Counties I agree that many defendants will lead out or plead guilty when the alternative is to wait in jail. However i disagree that justice will be served by lowering bonds or releasing defendants on unsecured bonds or written promises. The statutes concerning bonds are clear that the lesser burdens be imposed unless specific factors are present. I personally rarely see when the rules are not adhered to.

    When my jail was at capacity a while back I had a Sergeant come to me asking if there was something I could do so I asked him to review some of his inmates to determine if there were any that wouldn’t present a risk to the public. He brought me 7 files and reviewing them I found that applying the statutes, that the defendants were known to be violent or habitually failed to appear, that there was only one of them that wouldn’t cause issues. He was there for, and had, a long history of trespassing but I told him he he had a place to go and he wouldn’t end up right back there I would unsecure his bond. He was unable to find anyone to take him in though.

    In reality the fact that half or more of all orders the police have to serve are for failure to appear illustrates that bonds should be stiffer in most cases, not more lenient.

    • Where do you live? I see this happening all the time. I have been practicing for almost thirty years. Don’t tell me it is not happening every day.

  8. Wow. There are some pretty mean spirited comments here. I agree that there needs to be some kind of reform to how bonds are set. There should be some sort of list, maybe by the class of the charge, with a multiplier for prior convictions. But when I see a person charged with a Class I felony get a higher bond than a person that is charged with a Class H, that is a problem. Same with misdemeanor charges. I have always been taught that a bond is not supposed to be punishment, but to sage guard society and/or guarantee a court appearance. As far as public defenders, or court appointed attorneys go, some are really good and some are not. Like any profession, some are better than others. I have known and worked with both.

  9. It is a common practice here in rural counties that the magistrate will set bond without speaking to the defendant at all. The local police or sheriff’s deputies give their opinion as to the bond desired…higher for those not ” cooperating ” and less for others. Don’t blame attorneys for making recommendations they feel is appropriate…some lawyers may be ” better ” than others but I have never met one that was uncaring or incompetent. The vast majority of charged people are guilty and often solving a problem before the system has put resources into the case is best. If you cannot afford private counsel be glad to have representation at all…


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