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Fifth Circuit Court Gives Harris County A Win


Fifth Circuit Court of Appeals serves up a win for Harris County Criminal Court at Law Judges.

Court Rules: No Right To Affordable Bail, Only Right To Be Heard Within 48 Hours

Lakewood, CO (August 16, 2018) – The U.S. Court of Appeals for the Fifth Circuit issued a ruling on Tuesday in the case of ODonnell v. Harris County. It granted the request of the Harris County Criminal Court at Law judges to issue a stay of Judge Lee Rosenthal’s order in U.S. District Court, which required the release of defendants who claimed they could not afford to pay for bail.

The case concerned three individuals who were arrested and their contention that they were unlawfully denied the right to bail because of their inability to pay the amount indicated by Harris County’s set bond schedule. In its original ruling in February, the Fifth Circuit affirmed in part and reversed in part a ruling made by Judge Rosenthal in U.S. District Court in April 2017, in which she upheld the position of the plaintiffs.

“Vindication is the best word to describe the outcome in this decision,” said Jeff Clayton, Executive Director of the American Bail Coalition. “It is too bad taxpayer money had to be wasted because a federal judge gave plaintiffs more relief than they settled for, and agreed was constitutional.”

Essentially, the court held that Judge Rosenthal ignored the original decision from the Fifth Circuit, and issued a similarly flawed order by eliminating secured bail for indigent misdemeanor arrestees. However, the court held that there is no such fundamental right to be free from any form of wealth-based detention, concluding that the sweeping injunction was overbroad. In so ruling, the Court of Appeals affirmed for a second time that the constitution does not require the outright elimination of secured bail for indigent defendants. The court held that there is no right to affordable bail.

In addition, the court said that Judge Rosenthal’s order had created the risk of irreparable harm to the public and judges.

The Court of Appeals also ruled that when there is an adequate due process allowing for a meaningful bail review hearing within 48 hours, the heightened scrutiny of such procedures goes away. Under these circumstances, courts should simply impose the standard of rational basis. In effect, this means the issue in Harris County was not wealth-based discrimination per se, but rather, the idea that wealth-based discrimination without adequate due process was the actual problem. In fact, defendants had not been allowed to raise the issue even during appearances before a magistrate.

The ruling is considered a significant victory and vindication for the bail industry. Before the decision, more than 50 percent of misdemeanor defendants in Harris County were failing to appear for their court appearances in apparent disregard to Judge Rosenthal’s earlier order.

About the American Bail Coalition

The American Bail Coalition is dedicated to protecting the Constitutional right to bail and the promotion, protection, and advancement of the surety bail profession in the United States. Comprised of the nation’s largest surety insurance companies, ABC works with local communities, law enforcement, legislators and other criminal justice stakeholders to utilize its expertise and knowledge of the surety bail industry to develop more effective and efficient criminal justice solutions.