Harris County, Texas has a policy and practice of using secured money bail to impose pretrial detention on misdemeanor defendants too poor to pay. The plaintiffs in this case were all arrested in the County for misdemeanor offenses. Although they were all eligible for release, they were advised that they had to pay a predetermined amount of money required by local rules before they could be released. Plaintiffs sued the County in U.S. District Court, claiming that this use of money bail results in only the most impoverished misdemeanor arrestees being detained and thus violates the Equal Protection and Due Process Clauses of the Constitution. The district court ruled for the plaintiffs and held that the system’s wealth-based discriminatory practices are unconstitutional. The County appealed to the Fifth Circuit.

CAC filed a friend-of-the-court brief in the Fifth Circuit on behalf of the plaintiffs, arguing that Harris County’s system of secured money bail violates the Fourteenth Amendment’s guarantee of equal justice under the law to rich and poor alike. In our brief, we explained that the County’s policy denies the most basic form of liberty to those unable to pay, exerts coercive pressure on defendants charged with misdemeanors to plead guilty in order to be released, and makes it harder for others to prepare a defense. Using the bail system in this way perverts the historic use of bail as a mechanism for ensuring pretrial liberty for persons charged with a crime. We further argued that the County’s policy is completely unnecessary in light of the numerous alternative approaches that serve the government’s interests in a defendant’s appearance at trial and in community safety while still respecting the constitutional guarantees of equal protection and due process enshrined in the Fourteenth Amendment.

The Fifth Circuit largely upheld the lower court ruling. The court explained that the bail system heavily favors those able to pay, making them “less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration,” while the poor arrestee “must bear the brunt of all of these, simply because he has less money.”  This “basic injustice,” the Court held, is forbidden by the Fourteenth Amendment.