BREAKING: U.S. Court of Appeals for the 5th Circuit Issues Ruling – Bail Schedules Constitutional, No Right to an “Affordable Bail”

U.S. Court of Appeals for the Fifth Circuit Issues Ruling Dramatically Limiting Federal Judge’s Order in Houston Bail Case: Bail Schedules May Be Used And There is No Right to An “Affordable Bail”


New Orleans, LA – For months, we have heard nothing but calls from the Plantiffs in the ODonnell v. Harris County case, proclaiming that bail is unconstitutional if someone cannot afford it.  This statement has poisoned the debate on bail reform, causing policy-makers to doubt whether bail, or bail schedules are constitutional.  Today, the Fifth Circuit has spoken.

The Fifth Circuit affirmed in part and reversed in part Judge Rosenthal’s decision.  This decision, we would point out, is consistent with what we have been saying all along—a bail schedule is constitutional if the procedures for review of a bail were adequate, meaning there was a timely and meaningful opportunity to be heard, including as to indigency.  The Court held that “bail is not purely defined by what the detainee can afford,” which is a win against any legal theory that says affordability can be the determining factor.  Thus, bail is not ever per se unconstitutional because someone cannot afford it.

Fifth Circuit Ruling – ODonnell v. Harris County

In this case, the Fifth Circuit instead modified the Court’s order to fix the procedures from review of a bail schedule to make sure they were adequate.  Said the Court:

Harris County is enjoined from imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without providing an adequate process for ensuring that there is individual consideration for each arrestee of whether another amount or condition provides sufficient sureties.

In other words, a defendant who simply fails to make bail is not automatically indigent and entitled to some relief.  A judge will have to review that and make such a finding.  The Fifth Circuit is requiring an affidavit of indigency and verification by the government that the defendant is indigent.  Of course, then the Court requires that all persons who so attest be heard at a hearing within 48 hours of filing such an affidavit.

The Court also relieved the County Court at Law Judges of doing written orders, pointing out that there are nearly 15,000 bails set a year, and this would be a tremendous burden.  This also appeared to calculate into the decision to continue to allow bail schedules rather than requiring bail to be set in open court in all cases whatsoever.

While the Plaintiffs lawyers are going to proclaim they have won this case, in reality they have won nothing in terms of a right to an affordable bail.  They have won the right to a bail review hearing, which was denied in many of these cases because the information on indigency was never collected and presented to the judicial officer in a timely and meaningful fashion.

In fact, this is the same result they got in the very first case they filed more than three years ago—Varden v. City of Clanton.  In that case they, along with former U.S. Attorney General Eric Holder, stipulated that bail schedules were constitutional if reviewed by a judge within 48 hours.

Again and again, we have said that this is all about procedural due process more than it is about money bail.  The Fifth Circuit held just that—that there is not a right to affordable bail, but a right to procedural due process so that judges can make an informed decision regarding excessive bail and bail by sufficient sureties.

We can all agree it is appalling to have an automatic schedule of bail with no possibility of timely and meaningful review.  In fact, we’ve said that for the last three years.

Today, we are affirmed in our conclusion that there is no right under the constitution to an affordable bail, and jurisdictions can continue to use schedules of bail in their administration of the justice system.


Jeff Clayton, Executive Director, American Bail Coalition

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