No Constitutional Right to Affordable Bail – Where Do We Go From Here?

By: Jonathan Brown
Member, American Journal of Trial Advocacy

Contrary to popular belief, the United States Constitution does not guarantee a right to affordable bail.[1] In an attempt to avoid locking people up because of their lack of wealth, a person is guaranteed the right to have their bail reviewed by a judge.[2] A hot-button issue for many courts arises when bail schedules automatically apply a specific bail for a given offense.

In a recent ruling from the Fifth Circuit, the court recognized that while bail schedules themselves are not unconstitutional, the methods used in the particular case at hand were unconstitutional.[3] Furthermore, the court found that while bail is not purely defined by what an individual can afford, courts must have sufficient safeguards in place and review each and every case.[4] In that case, Maranda Odonnell and others brought suit against Harris County, Texas, claiming that, among other things, the county’s system of setting bail for indigent misdemeanor arrestees was unconstitutional.[5] In Harris County, misdemeanor arrestees “who can’t afford their bail bonds regularly sit in jail – often until their cases are resolved days or weeks later – while similar defendants who have cash are released.”[6] The District Court in Harris County agreed with Odonnell and issued a preliminary injunction, which was then appealed by Harris County.[7] The Fifth Circuit heard the appeal and reviewed the procedural due process and the equal protection findings.[8]

Procedural Due Process

Two questions must be asked when evaluating a claim under procedural due process.[9] “The first question asks whether there exists a liberty or property interest which has been interfered with by the state; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.”[10] A liberty interest can come from either the “Due Process Clause itself [or from] the laws of the states.”[11] An accused has a constitutional right to “remain free before trial” so that they can prepare for their defense.[12] Similar to Alabama,[13] Texas’s constitution states that “[a]ll prisoners shall be bailable by sufficient sureties,” so long as they do not fit an exception.[14] This statute creates a liberty interest in the defendant’s release from custody before trial.

The Fifth Circuit noted that “bail is not purely defined by what the detainee can afford.”[15] Therefore, it follows that the constitutional provision “does not create an automatic right to pretrial release.”[16] However, Texas law does create a right that defendants can have bail if there are sufficient sureties.[17]

Since the court in the Fifth Circuit held that there was a liberty interest, the court next examined whether there were procedures in place to protect the detainee’s Due Process rights.[18] To determine whether the procedures are adequate, the court must use the test set forth by the Supreme Court of the United States which weighs “the private interest . . . affected by the official action” along with “the risk of an erroneous deprivation of such interest” and “the Government’s interest.”[19] Texas imposes the bail orders “almost automatically on indigent arrestees.”[20] Given that the defendants’ interest in pretrial liberty and the government’s interest in assuring the defendant comes to court are important, the current safeguards in place were found to not be sufficient.[21] The Fifth Circuit overruled some of the district court’s proposed safeguards, but nonetheless found that the current safeguards in place were not enough.[22] The Fifth Circuit stated that “the current procedure does not sufficiently protect detainees from magistrates imposing bail as an ‘instrument of oppression.’”[23] Therefore, the court found that the indigent defendant’s constitutional right to Due Process was violated.[24]

Equal Protection

The bail system in Harris County treated misdemeanor defendants differently based on their respective wealth.[25] When evaluating an Equal Protection claim involving criminal laws that detain poor defendants solely based on their indigence, intermediate scrutiny is to be applied.[26] The Supreme Court of the United States previously held that indigents receive heightened scrutiny if: (1) “because of their impunity they were completely unable to pay for some desired benefit” and (2) “as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.”[27] The Odonnell court found that both requirements were met in the present case, thus heightened scrutiny was appropriate.[28] Under heightened scrutiny, Harris County’s policy failed to meet the requirements because, “poor arrestees in Harris County are incarcerated where similarly situated wealthy arrestees are not, solely because the indigent cannot afford to pay a secured bond.”[29]

National Implications

Many have championed this case to mean that affordable bail is a constitutional right. Fifth Circuit precedent merely implies that one has a right to due process so that their bail may be reviewed by an informed judge.[30] This hearing must take place within 48 hours of arrest.[31] To avoid trouncing on someone’s constitutional rights, the Fifth Circuit held that states must “engage in a case by case evaluation of a given arrestee’s circumstances.”[32]

On the heels of the district ruling in Harris County, inmates in Dallas County made similar claims.[33] Among those that have filed suit is a 47-year-old homeless and jobless transgender woman.[34] She was unable to afford a $500 misdemeanor bond and had to sit in jail.[35] The American Civil Liberties Union (“ACLU”) has started a movement for misdemeanor bail reform.[36] The ACLU launched an initiative “that focuses on bolstering the movement to end money bail and eliminate wealth-based pretrial detention.”[37] The director of the ACLU campaign for Smart Justice, Udi Ofer, stated, “[i]t’s time to end our nation’s current system of cash bail that lets the size of your wallet determine whether you are granted freedom or stay locked up.”[38] Research shows that “[o]n any given day in the United States, nearly 450,000 people are sitting in jail even though they have not been convicted.”[39]

Changes are likely on the horizon for many counties and states following the Fifth Circuit’s ruling in Odonnell. Balancing a state’s interest in ensuring a defendant shows up to court with an individual’s right to pretrial release is a delicate balance; a balance that will have to be decided throughout the court system, on a state by state basis. Money talks in America but “[m]oney should never decide a person’s freedom.”[40]

[1] See Odonnell v. Harris County, 882 F.3d 528, 540-45 (5th Cir. 2018) (discussing how the Constitution only gives indirect protection from un-affordable bail through the due process and equal protection clauses).

[2] Id. at 541.

[3] Id. at 545.

[4] Id. at 541.

[5] Id. at 528.

[6] Jolie Mccullough, How Harris County’s federal bail lawsuit spreads beyond Houston, The Texas Tribune (Oct. 2, 2017),

[7] Odonnell, 882 F.3d 528.

[8] Id. at 535.

[9] Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010).

[10] Id. (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)).

[11] Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (quoting Hewitt v. Helms, 459 U.S. 460, 466 (1983)).

[12] Ex parte Anderer, 61 S.W.3d 398, 404-05 (Tex. Crim. App. 2001) (en banc) (quoting Stack v. Boyle, 342 U.S. 1, 3 (1951)).

[13] See Ala. Const. art. 1, § 16(stating “[t]hat all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required”).

[14] See Tex. Const. art. 1, § 11 (stating “[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.”).

[15] Odonnell, 882 F.3d at 541(citing Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980)).

[16] Id.

[17] See Tex. Const. art. 1, § 11 (stating that all prisoners can be bailable by sufficient sureties).

[18] Odonnell, 882 F.3d at 541.

[19] Matthews v. Eldridge, 424 U.S. 319, 335 (1976).

[20] Odonnell, 882 F.3d at 541.

[21] Id. at 542.

[22] Id. at 546.

[23] Id. at 541.

[24] Id. at 543.

[25] Odonnell, 882 F.3dat 543.

[26] Id. at 544.

[27] San Antonio Indep. Sch. Dist. V. Rodriguez, 411 U.S. 1, 20 (1973).

[28] Odonnell, 882 F.3d at 544.

[29] Id.

[30] Id. at 543, 546.

[31] Id. at 543.

[32] Id. at 546.

[33] Jolie Mccullough, Poor inmates sue Dallas County over bail system following Harris County ruling, The Texas Tribune (Jan. 22, 2018),

[34] Id.

[35] Id.

[36] ACLU announces nationwide campaign to support movement to end money bail, ACLU (Dec. 11, 2017),

[37] Id.

[38] Id.

[39] Id.

[40] Id.

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