Since 2016, there have been five lawsuits filed in federal courts in Texas alleging equal protection and procedural due process violations concerning bail practices in Houston, Dallas, and Galveston.  


As we reported in an August 2019 post, the Fifth Circuit Court of Appeals upheld most of what U.S. District Court Judge Lee Rosenthal ruled in 2017. The Judge found the Harris County bail system violated both the equal protection and due process provisions of the Fourteenth Amendment to the U.S. Constitution. That lawsuit became known as O’Donnell v. Harris County.


Bail in Texas Used as Instrument of Oppression


In upholding Judge Rosenthal’s broad finding that the Harris County wealth-based, cash bail system was inadequate, the Court of Appeals said that “even when applied to our narrower understanding of the liberty interest at stake, [Judge Rosenthal’s] factual findings (which are not clearly erroneous) demonstrate that secured bail orders are imposed almost automatically on indigent arrestees. Far from demonstrating sensitivity to the indigent misdemeanor defendants’ ability to pay, [bail] Hearing Officers and County Judges almost always set a bail amount that detains the indigent. In other words, the current procedure does not sufficiently protect detainees from magistrates imposing bail as an ‘instrument of oppression.'”


On September 20, 2018, U.S. District Court Judge David C. Godbey issued a ruling that essentially followed Judge Rosenthal’s lead in O’Donnell. On August 7, 2019, U.S. District Court Magistrate Andrew M. Edison adopted Judge Rosenthal’s constitutional positions in O’Donnell as well. Both of these cases were appealed to the Fifth Circuit.  


On December 28, 2020, the Court of Appeals in the Dallas bail case pretty much followed its previous legal findings concerning the due process/equal protection claims made in the Harris County bail decision. The court held:


“Our decisions as to bail for misdemeanor criminal arrestees in Harris County resolved several issues. First, the county’s procedures violated the due process rights of the arrestees … Next, we applied intermediate scrutiny to the equal-protection claim, concluding that ‘although the County had a compelling interest in the assurance of a misdemeanor detainee’s future appearance and lawful behavior, its policy was not narrowly tailored to meet that interest.’ The interest protected was created in part by the state constitution: ‘prisoners shall be bailable by sufficient sureties.” The fact that it was a state-created right did not leave the federal due-process interest to be resolved afresh in the current case. ‘Liberty interests protected by the due process clause can arise from two sources, ‘the Due Process Clause itself and the laws of the States.'” The O’Donnell due-process rulings apply here.”


However, the plaintiffs in the Dallas bail case had sought a more expansive due process argument than was recognized in O’Donnell. The appeals court turned back these efforts with the following language:


“A brief summary of what we have decided so far. There is no clear support in the precedents on which the Plaintiffs rely for the expansive liberty right for indigents that the Plaintiffs claim. The applicable standard of scrutiny that applies to the claim is unclear. We reject that we must analyze the claim under the Eighth Amendment.


“Next is our review of whether this circuit made relevant pronouncements on the issue in the O’Donnell opinions. In the Plaintiffs’ view, their claimed right to pretrial liberty requires broader injunctive relief than was ordered as to bail practices in Harris County. We start with some clarification about the claims in O’Donnell. Though the claims were brought under procedural due process and equal protection, this court’s opinions made statements about substantive due process. We quote our revised first opinion that the procedural defect was a ‘mechanical application of the secured bail schedule.'” What was needed was ‘notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.'” As a result, the broader relief in the district court’s injunction, which we characterized as ‘the outright elimination of secured bail for indigent misdemeanor arrestees’ was too broad.


“We understand that the Plaintiffs are not arguing that indigents can never be detained even if they could not afford cash bail; instead, they argue that the Magistrate Judge must find that the State has a sufficiently strong interest in order to hold an indigent who cannot afford cash bail. That is what the O’Donnell plaintiffs argued too. Nonetheless, we interpret our statements in O’Donnell to mean that the effect of a provision such as ordered by that district court was to eliminate cash bail for most indigents.”


Texas Bail System Must be Addressed by Legislature 


The upshot of these five bail lawsuits is that the Texas wealth-based system—one that is incurably corrupted—has serious constitutional flaws that must be addressed by the state’s legislature in the upcoming session. There is no dancing around this issue any longer. Any meaningful effort to establish criminal justice reform must begin with eliminating a corrupt wealth-based bail system. Common sense legislation that requires individualized race-neutral risk assessment tools and presumes release of non-violent, low-risk individuals is the simple solution. This will allow immediate processing of non-violent defendants and allow judges to set adequate conditions for individuals charged with more serious offenses. Releasing non-violent, low-risk arrestees will ease the burden on local sheriff’s departments and allow jail space for more serious, high-risk defendants. A smarter bail system will save taxpayers dollars and make the community safer.


We have called for bail reform many times over the past ten years. The Texas Legislature has elected time and time again to avoid the issue. The “tough on crime” crowd in Austin has proven that they are either too corrupt or too incompetent to address the bail reform issue. But they cannot escape the reality that the courts have spoken again. It is the legislators that now must step forward a cure a Constitutionally flawed bail system.  


Bail reform demands a responsible political solution.