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 [...]