Private Surety Bail is Constitutional and it Works!

Private Surety Bail is Constitutional and it Works!

The United States Constitution expressly recognizes the constitutionality of private surety bail pursuant to the 8th Amendment to the Bill of Rights, which states that excessive bail shall not be required. U.S Const. amend. VIII.

The 5th Circuit has squarely rejected the argument that “the imposition of a financial condition of bail which a defendant cannot meet violates the eighth amendment.”
United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988).

The Texas Constitution also expressly recognizes the constitutionality of private surety bail by stating that prisoners are bailable by “sufficient sureties.”Tex. Const. Art. I, Sec. 11.

The United States Court of Appeals for the 5th Circuit recognizes that the use of bail schedules provides speedy and convenient release for those who have no difficulty in meetings its requirements.
Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978).

When a county uses a bail schedule, a defendant who claims poverty must be given an opportunity within 48 hours of arrest to request a deviation from the schedule.
Cause No. 17-20333; ODonnell v. Harris County, 5th Cir., February 14, 2018 (ODonnell I).

Once a county provides such a hearing, then the federal review is reduced to a rational basis review and ensuring that individuals appear for court hearings and trial is enough to satisfy this review.
Cause No. 18-20466; ODonnell v. Goodhart, 5th Cir., August 14, 2018 (ODonnell II). The 11th Circuit agreed with this analysis. See Cause No. 17-13139; Walker v. City of Calhoun, 11th Cir. August 22, 2018).

Due Process and Equal Protection requires a hearing to ask for a deviation from the bail schedule. It does not authorize release even if the hearing is not held timely. In that case, the remedy is to notify the attorney for the defendant and the family that the required hearing was not held timely.
Cause No. 18-20466; ODonnell v. Goodhart, 5th Cir., August 14, 2018 (ODonnell II).

Under Texas law, the trial court is required to consider several factors in determining the issue of bail and only one of these factors is ability to pay; therefore, the court must consider all of the statutory factors in setting bail and not put one (ability to pay) over the others.
Cause No. 18-20466; ODonnell v. Goodhart, 5th Cir., August 14, 2018 (ODonnell II); Tex. Code Crim. Pro. art. 17.15.