U.S. Constitutional Limits on State Money-Bail Practices for Criminal Defendants
Released: 2019-02-26T00:00:00

Money-Bail Systems

The right to bail in noncapital cases has firm roots in the United States, dating back to colonial times and originating in English law. As the Supreme Court recognized, the "traditional right to freedom before conviction permits the unhampered preparation of a defense and prevents inflicting punishment prior to conviction." But the Supreme Court has never recognized a right to bail as absolute, and has held that the government may have legitimate interests in limiting the availability of bail, even for noncapital crimes, based not only on possible flight risk but also on other considerations, including the danger an arrestee poses to public safety or specific members of the community. Nonetheless, the Court has also observed that pretrial detention may have negative consequences for criminal defendants, such as by impairing their ability to maintain employment and to support dependents financially.

The impact of state and municipal money-bail systems on indigent criminal defendants has prompted legislative interest in, and judicial challenges to, such systems. Money-bail systems allow defendants to avoid jail while awaiting trial by posting a bond according to a fee schedule. Typically, judges do not assess a detainee's individual characteristics beyond the offense charged; instead, judges set a defendant's bail based on the criminal offense with which he is charged. Defendants who cannot pay bail may remain detained pending trial. Money-bail systems differ from the federal bail system, which gives judicial officers greater discretion over the conditions of a defendant's pretrial release. Federal law also expressly provides that a "judicial officer may not impose a financial condition that results in the pretrial detention of the person."

Critics of state and local money-bail systems assert, among other things, that fee schedules unduly burden indigent defendants, who face more difficulty paying bail—including relatively low bail fees associated with misdemeanor offenses—than nonindigent defendants accused of similar offenses. Supporters, on the other hand, contend that fee schedules help guarantee a defendant's appearance in subsequent proceedings and treat defendants uniformly.

In recent years, a few jurisdictions, including New Mexico, Kentucky, New Jersey, Colorado, and Maryland, have considered legislative proposals or ballot initiatives to eliminate or alter their money-bail systems. Some states, including California, Colorado, and New Jersey, altered their money-bail systems to employ more individualized risk assessment tools rather than using the nature of the offense charged.

Recently, defendants have challenged various state or municipal bail systems as inconsistent with the Constitution's Due Process and Equal Protection Clauses. For example, in Jones v. City of Clanton (formerly Varden v. City of Clanton ), the parties settled the case by making release on an unsecured bond the norm rather than the exception. Lawsuits in a few other local jurisdictions have similarly been settled. In Pierce v. City of Velda City , the U.S. District Court for the Eastern District of Missouri issued a declaratory judgment stating that "no person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond." Subsequently, the parties entered a settlement agreement on a new bail policy.

During the latter years of the Obama Administration, the Department of Justice (DOJ) submitted a statement of interest in litigation challenging the constitutionality of local bail systems. The DOJ filed an amicus brief in a civil rights lawsuit challenging bail amounts based solely on the offense, calling such systems unconstitutional because of their impact upon indigent defendants. As of the date of this report, it is unclear whether the DOJ and the Trump Administration will continue to take an active role in this case.

Pretrial Release and Pretrial Detention

Money-bail is only one way states and municipalities provide for pretrial release. Absent clear statutory guidance, judges enjoy broad discretion to determine appropriate conditions for releasing a criminal defendant pending trial. When considering pretrial release, judges weigh several factors such as due process, securing a defendant's subsequent court appearance, and protecting society from the defendant. Judges may use various forms of pretrial release such as personal recognizance, secured or unsecured bonds, or conditional release.

Historically, judges have denied defendants bail if they pose a flight risk upon release. For example, judges generally presume defendants charged with capital crimes pose a flight risk. The Supreme Court has recognized that the government may have other, constitutionally legitimate grounds for limiting pretrial release of defendants, including danger to public safety.

Several state statutory and constitutional provisions deny bail to defendants arrested for capital crimes "where the proof is evident or the presumption is great," and a few also limit bail for noncapital offenses with certain characteristics. Some of these latter restrictions have been challenged legally. In contrast, federal law creates a rebuttable presumption that favors (but does not compel) detention of persons charged with certain offenses when a judge or magistrate determines, on the basis of clear and convincing evidence, that the defendant has a prior conviction for an offense included in one of nine categories of detention-qualifying offenses (crimes of violence, etc.), committed while the accused was free on pretrial release and for which the accused was convicted or released from prison within the last five years. Federal law also establishes a second rebuttable presumption of detention in favor of pretrial detention when the judge or magistrate finds probable cause to believe that the accused has committed a 10-year controlled substance offense, federal crime of terrorism offense, or various kidnapping or sexual offenses committed against a child.

Constitutional Considerations Related to Bail and Indigence

The Constitution governs pretrial detention and bail. For money-bail systems, particularly as they apply to indigent defendants, the key provisions are the Eighth Amendment's Excessive Bail Clause and the Fifth and Fourteenth Amendments' Due Process and Equal Protection Clauses.

Eighth Amendment

The Eighth Amendment of the U.S. Constitution states that "[e]xcessive bail shall not be required." Bail is excessive when "set higher than an amount that is reasonably likely to ensure the defendant's presence at the trial." While the Eighth Amendment expressly prohibits excessive bail, it does not establish an absolute right to bail. Whether an accused has a right to bail depends on how expansively a court interprets the provision. For example, in Stack v. Boyle , the Court declared that "this traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.... Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." However, in Carlson v. Landon , decided in the same term as Stack , the Court stated the following:

The bail clause was lifted, with slight changes, from the English Bill of Rights Act. In England, that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus, in criminal cases, bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable.

Similarly, in United States v. Salerno (Salerno ), the Court found the federal Bail Reform Act to be constitutionally valid under the Eighth Amendment's Excessive Bail Clause. The Bail Reform Act allowed judges to detain individuals in certain limited circumstances when the accused poses a danger to the public at large or to particular members of the public. In upholding the act, the Court noted that the Excessive Bail Clause does not limit congressional considerations to question of flight. In other words, the clause permits the government pursuing compelling interests such as public safety "though regulation of pre-trial release."

Due Process Requirements

In addition to Eighth Amendment considerations, pretrial detention and bail must comport with due process principles. Due process requires that statutes imposing pretrial detention serve a compelling governmental interest and do not impose punishment before adjudication of guilt. Moreover, governmental action that deprives an individual of life, liberty, or property must be implemented in a fair, nonarbitrary manner. The U.S. Constitution's due process guarantees are contained in the Fifth Amendment and the Fourteenth Amendment. The Fifth Amendment applies to actions taken by the federal government, whereas the Fourteenth Amendment applies to actions taken by state governments. Each clause provides that the government shall not deprive a person of "life, liberty, or property, without due process of law."

Due process may be procedural or substantive. Based on the principle of "fundamental fairness," procedural due process requires notice and an opportunity to be heard before a neutral party. Substantive due process "forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest."

In Salerno , the Court found that the Bail Reform Act's regulatory character met substantive and procedural due process requirements. Discussing substantive due process, the Court stated the following:

Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on whether an alternative purpose to which the restriction may rationally be connected is assignable for it and whether it appears excessive in relation to the alternative purpose assigned to it. We conclude that the detention imposed by the Act falls on the regulatory side of the dichotomy. The legislative history ... indicates that Congress did not formulate the pretrial detention provisions as a punishment for dangerous individuals. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing danger to the community is a legitimate regulatory goal, nor are the incidents of pretrial detention excessive in relation to the regulatory goal Congress sought to achieve.

As for procedural due process, the Court found that the act's tailored procedural safeguards satisfied the Constitution.

Equal Protection Considerations

Under the Constitution's equal protection provisions, courts reviewing government action that distinguishes between classes of people apply different levels of scrutiny depending on the classification used. For example, the Supreme Court has held that governmental action that categorizes people based on certain "suspect" classifications, such as race, is subject to strict scrutiny, which is the most searching form of judicial review; other classifications, such as those based on age, are permissible if the statute's use of such classification is rationally related to a legitimate state interest. The Supreme Court has invalidated statutes that impose jail or other adverse consequences based on a defendant's indigence, but it has never held that money-bail systems are constitutionally invalid because indigent defendants have greater difficulty paying bail than other criminal defendants. The Supreme Court, however, has considered the constitutional implications of indigence for criminal defendants in other contexts.

Supreme Court Jurisprudence Regarding Indigents

In a series of cases, the Court held that imprisonment solely because of indigence constitutes invidious discrimination and is constitutionally impermissible. For example, in Bearden v. United States , the Court held that a court could not automatically revoke a defendant's probation for failing to pay a fine and make restitution unless such nonpayment was willful. After the defendant pleaded guilty to burglary and theft by receiving stolen property, the court sentenced him to three years' probation, a $500 fine, and restitution of $250 to be repaid according to a four-month schedule. After the defendant lost his job and could not make the payments, the court revoked his probation, sentencing him to serve the rest of his sentence.

In determining the revocation's constitutionality, the Court analogized the equal protection concerns to the fundamental fairness issues of due process analysis and weighed factors including the "nature of the individual interest affected, the extent to which it is affected, the rationality of the connection between legislative means and purpose, [and] the existence of alternative means for effectuating the purpose ...." Acknowledging the state's interest in punishment and deterrence, the Court opined that this could be achieved by extending the repayment period or by the defendant performing public service. The Court held that a court must determine whether nonpayment was willful before revoking a defendant's probation. As the lower court had not made such a finding, the Supreme Court held that "fundamental fairness requires that the petitioner remain on probation" and remanded the case.

In other cases, the Supreme Court has not recognized indigence as a suspect class warranting strict scrutiny analysis. For example, in Ma h er v. Roe , the Court held the following:

An indigent woman desiring an abortion does not come within the limited category of disadvantaged classes so recognized by our cases. Nor does the fact that the impact of the regulation falls upon those who cannot pay lead to a different conclusion. In a sense, every denial of welfare to an indigent creates a wealth classification as compared to nonindigents who are able to pay for the desired goods or services.

Accordingly, when weighing the constitutionality of bail statutes, some lower courts have used the rational basis standard to examine whether a bond requirement would rationally and reasonably ensure the defendant's appearance at trial or serve another legitimate government interest.

Recent Lower Court Cases Concerning Bail and Indigents

While the Supreme Court has recognized rights for indigents in the sentencing and postconviction contexts, it has not addressed such rights in the bail context. Some courts have viewed claims of excessive bail premised solely on indigence to be uncompelling. For example, in Katona v. City of Cheyenne , a Wyoming federal district court rejected an arrestee's assertion that $35 was excessive bail due to his indigence. Noting that excessive or denial of bail may trigger equal protection concerns, the court applied a rational basis standard of review, examining whether the bond requirement was "rationally and reasonably" related to nonresidents appearing at trial.

Similarly, in Walker v. City of Calhoun , the U.S. Court of Appeals for the Eleventh Circuit vacated a preliminary injunction against the City of Calhoun's money-bail system for misdemeanor offenders. Arrested and charged with "being a pedestrian under the influence of alcohol," Mr. Walker spent six nights in jail because he could not afford the $160 cash bond set by the money-bail schedule. He filed a class action lawsuit alleging that the City of Calhoun violated his Fourteenth Amendment rights by jailing him and other class members "because of their inability to pay a generically set amount of money to secure release after an arrest." The district court found that the bail schedule "violate[d] the Constitution insofar as it permits individuals who have sufficient resources to post a bond (or to have one posted for them) to be released immediately, while individuals who do not have those resources must wait forty-eight hours for a hearing."

Appealing to the Eleventh Circuit, the city defended its bail system as constitutional because it discriminated on the seriousness of the offense rather than on wealth. The city argued that the Fourteenth Amendment does not provide "an absolute entitlement to pretrial release" and that wealth-based distinctions are subject to rational basis review because wealth is not a suspect class. The city asserted that its bail system met the rational basis standard because it serves the "legitimate goal of assuring the presence of a defendant at trial."

The Eleventh Circuit found that the district court erred in applying heightened scrutiny to wealth-based classifications. Citing the Supreme Court's San Antonio Independent School District v. Rodriguez decision, the Eleventh Circuit noted that whether the plaintiff suffered "an absolute deprivation" or a "mere diminishment" was key because "differential treatment by wealth is impermissible only where it results in a total deprivation of a benefit because of poverty." Because Mr. Walker was not totally deprived of pretrial release but had to wait 48 hours at most to "receive the same benefit as the more affluent," the Eleventh Circuit held that the "district court was wrong to apply heightened scrutiny under the Equal Protection Clause."

Other courts have held that bail systems that incarcerate indigent individuals without considering their ability to pay are unconstitutional. In Pierce v. City of Velda City , the district court issued a declaratory judgment, stating that "no person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond." Ultimately, the parties resolved the case through a settlement agreement that changed the jurisdiction's bail system.

Conclusion

Recognizing that "[t]here can be no equal justice where the trial a man gets depends on the amount of money he has," the Supreme Court has invalidated statutes or actions that arguably punished individuals for indigence. But the Supreme Court has generally viewed pretrial release of criminal defendants to be a regulatory, rather than a penal, matter, noting that the government may have legitimate and, in some cases, compelling interests in limiting pretrial release for certain types of defendants. The Supreme Court has never squarely assessed whether applying money-bail systems to indigent criminal defendants as a class is permissible. Lower courts are split on whether money-bail systems impermissibly discriminate against indigents. Some courts have found money-bail systems to be constitutionally suspect, while others have upheld money-bail systems as rationally related to legitimate or compelling governmental interests, including providing for a defendant's subsequent court appearance.