For some time now, we in the bail industry have been hearing the rhetoric “bail is unconstitutional if someone cannot afford it”. Unfortunately, this has shifted the focus from bail reform to a debate between policy-makers that focuses on whether bail, or bail schedules, are constitutional.
Finally, we have a court ruling to put the debate to rest.
According to the American Bail Coalition, The U.S. Court of Appeals for the Fifth Circuit issued a ruling dramatically limiting a federal judge’s order in a Houston bail case. They found bail schedules may be used and there is no right to an “Affordable Bail”. Read the entire court finding: Fifth Circuit Ruling – ODonnell v. Harris County.
Why did the court make this ruling?
- A bail schedule is constitutional if the procedures for review of bail are adequate. Meaning there is timely and meaningful opportunity to be heard, including indigency status.
- There is not a right to affordable bail, but a right to procedural due process. Meaning judges can make an informed decision regarding excessive bail and bail by sufficient sureties. Overall, a defendant who fails to make bail is not automatically indigent and entitled to some relief.
While others want to move attention from procedural due process to money bail, this ruling is exactly what we need to refocus efforts. The focal point should not be money bail, it is ensuring that judges have the information needed to make an informed decision and making sure a process is in place for all persons to attest and be heard in a timely manner.
This ruling may create de-ja-vu for those of us who have been in the industry for some time. It is the same result from Varden v. City of Clanton, which resulted in bail schedules being constitutional if reviewed by a judge within 48 hours.
While everyone could agree that some change will do the industry good, it’s important to stay focused on the right aspects of bail reform.
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