September 9, 2020

By Cassidy Heiserman*

Each year, roughly 500,000 people are held in jail in the United States because they are unable to afford bail.¹ Being unable to afford cash bail, regardless of consequent length of stay in jail, can lead to psychological impacts, and loss of jobs, custody, and housing.² In 2010, Kalief Browder, then sixteen-years-old, was charged with stealing a backpack.³ He could not afford his $3,000 bail, so he sat in jail for three years awaiting trial.⁴ Charges were ultimately dropped but because of the trauma from prison, Kalief committed suicide shortly after his release.⁵ While bail is now a mechanism for punishing poverty, it originated in Medieval England “as a device to free untried prisoners.”⁶ Additionally, those who cannot afford bail are significantly more likely to be convicted or plead guilty.⁷ Under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, cash bail systems are unconstitutional because they impermissibly discriminate against indigent persons and fail under heightened scrutiny.

Framing the Issue

This issue presents an inseparable overlap between equal protection and due process principles. Substantive due process requires that the government have sufficient justification for depriving someone of an important right. If a right is fundamental, the infringement is subject to strict scrutiny, and the freedom from incarceration is undoubtedly fundamental. Equal protection forbids any state from “deny[ing] to any person within its jurisdiction the equal protection of the laws,” and equal protection applies to the federal government through the Fifth Amendment’s Due Process Clause.⁸ Essentially, equal protection forbids the government from classifying without a sufficient reason. The court examines the sufficiency of the government’s reason based on the type of classification and the level of scrutiny assigned to that classification.

A classification exists when the law is either (1) facially discriminatory or (2) facially neutral with both a discriminatory purpose and effect.⁹ Here, the classification is facial because it classifies people into a group based on whether they can pay.

There are three levels of scrutiny in an equal protection analysis. Strict scrutiny is the highest level of scrutiny and is only applicable to discrimination based on race or national origin.¹⁰ To pass strict scrutiny, the provision must have a compelling government purpose and be narrowly tailored to achieve that purpose.¹¹ Intermediate scrutiny applies to classifications based on sex or nonmarital children.¹² Laws are upheld under intermediate scrutiny if they are substantially related to an important government purpose.¹³ Rational basis is the lowest level of scrutiny and is a catch-all test for classifications that do not receive a heightened scrutiny.¹⁴ Laws are almost always upheld under rational basis review and are constitutional so long as they are rationally related to a legitimate government purpose.¹⁵

At issue with cash bail is the appropriate level of scrutiny that should be applied, because if only subject to rational basis review, such schemes would likely be upheld. While it appears that statutes implementing and regulating cash bail should be reviewed under rational basis because the classification is based on wealth, some courts have held that a heightened scrutiny is required because of the combination of indigent status and the distinct nature of incarceration.¹⁶ Supreme Court precedent has examined indigency in the prison context but has never done so specifically for bail.¹⁷

In Williams v. Illinois, the Court addressed whether an indigent could be held in prison after the statutory maximum of his crime “because of his failure to satisfy the monetary provisions of the sentence.”¹⁸ Appellant was convicted of theft and sentenced to one year incarceration and a $500 fine.¹⁹ Appellant was unable to pay his fine, so the judge ordered him to remain in jail to “work off” his payment at a rate of five dollars a day.²⁰ The Supreme Court held that such punishment was unconstitutional under equal protection, because the ceiling on imprisonment must be the same for all defendants regardless of their economic status.²¹

Similarly, in Tate v. Short, the petitioner had $425 worth of fines from traffic offenses.²² Because the petitioner was unable to pay, the court sentenced him to the prison farm at a rate of five dollars per day to work off his sentence, thereby requiring him to serve eighty-five days at the farm.²³ The Court held that his sentence was “solely because he was too poor to pay,” and was therefore unconstitutional under equal protection.²⁴

In Bearden v. Georgia, the petitioner was sentenced to three years of probation and ordered to pay $750 in fines and restitution.²⁵ Petitioner was laid off of his job, and because he only has a ninth-grade education and is unable to read, he could not find other work.²⁶ Since he could not pay his fine in its entirety, he was sentenced to serve the rest of his probationary period in prison.²⁷ The Court held his incarceration violated equal protection because it was essentially punishing him for his poverty.²⁸

The Court developed a two-part test in San Antonio v. Rodriguez to determine whether a particular wealth-based claim receives heightened scrutiny under an equal protection analysis: 1) whether the classification is based on indigency, and 2) whether the class suffered an “absolute deprivation of the desired benefit.”²⁹ However, courts interpret this test differently.

The Eleventh Circuit takes the approach that cash bail laws do not receive heightened scrutiny.³⁰ In Walker , the defendant was arrested for public intoxication, conviction of which is punishable by a maximum fine of $500.³¹ Walker could not afford his $160 cash bail, so he remained incarcerated, where he was not given his necessary medication and was in solitary confinement for twenty-three hours a day.³² In the city of Calhoun, bail is a set amount for all arrestees regardless of individual ability to pay.³³ Those who can pay are released immediately, while those who cannot are held for forty-eight hours and then can be released on a personal recognizance bond (“ROR”).³⁴ Using the Rodriguez test, the majority found that Walker did not suffer an absolute deprivation, but rather was just forced to wait a longer amount of time to receive the same benefit as the wealthy.³⁵

Comparatively, the Fifth Circuit holds intermediate scrutiny is constitutionally required.³⁶ O’Donnell v. Harris City is a class action suit involving three separate cases. Maranda O’Donnell was then “a 22-year-old single mother charged with driving with an invalid license.”37 Her bail was set at $2,500.³⁸ Robert Ford was charged with shoplifting from Wal-Mart and his bail was set at $5,000.³⁹ Lastly, Loetha McGruder was a pregnant 22-year old mother of a special needs child and was arrested for failing to identify herself to a police officer.⁴⁰ Her bail was set at $5,000.⁴² The district court held that the Supreme Court and other precedent “make clear that detention based on wealth is an exception to the general rule that rational basis review applies to wealth-based classifications.”⁴² The Fifth Circuit agreed, and held that the bail system violated equal protection by treating otherwise similar misdemeanor arrestees differently based solely on their economic status.⁴³ The court found the system failed the Rodriguez test because indigent people cannot afford bail, and they consequently suffer an absolute deprivation of freedom from incarceration, a cornerstone of American society.⁴⁴

Analysis

The Fifth Circuit’s determination that cash bail is subject to heightened scrutiny under equal protection is justified regardless of the method of interpretation applied. The framers of the Constitution viewed freedom from incarceration as a foundational pillar in American society. Half of the Bill of Rights explicitly or implicitly target incarceration and seek to protect criminal defendants: the Fourth Amendment protects against unreasonable seizures; the Fifth Amendment requires due process before a deprivation of life, liberty, or property; the Sixth Amendment mandates speedy trials and impartial juries; the Seventh Amendment protects individuals from being tried for the same crime twice; and the Eighth Amendment prohibits excessive bail and cruel and unusual punishment. While the Fourteenth Amendment was created to remedy the effects of race discrimination, its overall purpose was to eliminate caste systems.⁴⁵ Therefore, interpreting cash bail cases under an originalist lens mandates striking such provisions down as violative of equal protection.

Similarly, non-originalists consider history but also examine other factors. Historical factors point to cash bail being unconstitutional. Likewise, both ethical and prudential factors would deem cash bail unconstitutional because such factors consider morals and outcomes. Morally, person A, otherwise equal to person B, should not be incarcerated solely because of an inability to pay. Cash bail systems that do not account for wealth lead to such disparate outcomes. Therefore, regardless of the method of interpretation utilized, cash bail systems should be afforded heightened scrutiny.

The Eleventh Circuit in Walker attempted an unconvincing slippery slope argument to justify its denial of heightened scrutiny. Petitioner argued that cash bail laws should be afforded heightened scrutiny due to their disparate impacts based on wealth, but the court claimed that giving heightened scrutiny to classifications in such cases would flood the courts.⁴⁶ For example, the court postulated that if UPS wanted to deny express services to those unable to pay, “it would have to justify that decision under the same standard it would have to meet to justify providing express service only to white patrons.”⁴⁷ This argument is unpersuasive. Both the aforementioned Supreme Court cases and half of the Bill of Rights demonstrate that incarceration is different. Denying something so significant to different groups based solely on ability to pay goes against the notion that America is the land of the free. Additionally, petitioner was not asking for strict scrutiny, but rather, something with a higher burden than rational basis.

The Fifth Circuit’s interpretation of the Rodriguez test appeals to common sense and its reasoning is more supported by precedent. For example, in both Tate and Williams, the Court held petitioners were “subjected to imprisonment solely because of [their] indigency.”⁴⁸ The same holds true for cash bail: individuals are only behind bars because of their inability to pay. Especially considering the presumption of innocence, it logically follows that this precedent would transfer to the pre-trial context.

Tate further explains that imprisonment based on inability to pay does not advance any "penal objective," but rather burdens the state. ⁴⁹ Because the defendant is incarcerated, he has no ability to earn money to pay off fines or earn his freedom, but instead the state is forced to front the costs of housing and feeding the individual during imprisonment.⁵⁰ Additionally, justifications for cash bail regimes frequently include keeping dangerous people off the streets and insuring their presence at hearings, and is not intended to be punitive.⁵¹ Often times, low level offenders’ failure to appear is due to “personal life struggles” rather than a conscious effort to sidestep the law.⁵² Defendants of equal risk of flight or harm but with money are able to walk free. Under a heightened scrutiny, cash bail would fail an equal protection analysis because while the state has a compelling interest, cash bail policies do nothing to serve that interest.⁵³

As far as application of the Rodriguez test, the claim is not that the wealthy can “afford better conditions of pretrial release than others,” but rather those with money are able to purchase their freedom, while indigent persons are “absolutely denied pretrial liberty” because of their indigency.⁵⁴ According to Rodriguez, this absolute denial requires heightened scrutiny.⁵⁵

Williams, Tate, and Bearden all address post-conviction confinement based on wealth, and all three held that an individual cannot be confined solely based on his inability to pay.⁵⁶ Because a tenet of American criminal law is that people are innocent until proven guilty, “a government policy of wealth-based classifications” should be even more scrutinized than post-conviction cases.⁵⁷ The precedent mandates that cash bail regulations be subject to a heightened scrutiny, and under a heightened level of scrutiny such policies would fail because they are both under- and over-inclusive, and states have many alternative options. While cash bail is an equal protection issue, the principles of substantive due process seem to answer the question: cash bail that does not account for ability to pay is unconstitutional under equal protection because it arbitrarily denies certain individuals the fundamental right of freedom from incarceration.

Overall, the Fifth Circuit seemingly has a more accurate understanding of the layered precedent and the overlap between equal protection and due process principles when it comes to incarceration based on wealth. Governments have an array of alternative options to choose from, ranging from ankle monitors and ROR bonds, to denying bail altogether for serious violent crimes. In jurisdictions employing other options, rates of reappearance for trial are on par with rates of those released on bail.⁵⁸ Freedom from incarceration is one of the most fundamental rights in American society, and under any method of constitutional interpretation, cash bail systems that fail to account for an individual’s ability to pay violate equal protection by unjustifiably treating otherwise equal groups differently.

*J.D. Candidate, Class of 2021, Drexel University Thomas R. Kline School of Law. Cassidy is an Associate Editor for the Drexel Law Review. 

1 Lauren Bennett, Punishing Poverty: Robinson & The Criminal Cash Bond System , 25 WASH. & LEE J. CIVIL RTS. & SOC. JUST. 315, 317 (2018).
2 Cynthia Jones, Accused and Unconvicted: Fleeing from Wealth-Based Pretrial Detention , 82 ALB. L. REV. 1063, 1065 (2019).
3 Id. at 315.
4 Id. at 315–16.
5 John Mathews II and Felipe Curiel, Criminal Justice Debt Problems , ABA (Dec. 10, 2019), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/economic-justice/criminal-justice-debt-problems/.
6 O’Donnell v. Harris City , 251 F. Supp. 3d 1052, 1068 (S.D. Tex. 2017).
7 O’Donnell v. Harris City , 892 F.3d 147, 155 (5th Cir. 2018) (en banc).
8 U.S. CONST. amend. XIV.
9 See generally Washington v. Davis , 426 U.S. 229 (1976); Palmer v. Thompson , 403 U.S. 217 (1971).
10 Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 227 (1995).
11 Id.
12 See generally Craig v. Boren , 429 U.S. 190 (1976).
13 Id. at 204.
14 See generally U.S. Dept. of Agric. v. Moreno , 413 U.S. 528 (1973).
15 See generally e.g.,, id.; Railway Express Agency, Inc., v. N.Y., 336 U.S. 106 (1949); City of Cleburne, TX v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).
16 See generally Walker v. City of Calhoun , 901 F.3d 1245 (11th Cir. 2018); O’Donnell, 892 F.3d 147.
17 Jones, supra note 6, at 1070.
18 Williams v. Illinois , 399 U.S. 235, 236 (1970).
19 Id.
20 Id.
21 Id. at 244.
22 Tate v. Short , 401 U.S. 395, 396 (1971).
23 Id. at 396–97.
24 Id. at 397.
25 Bearden v. Georgia , 461 U.S. 660, 662 (1983).
26 Id. at 662–63.
27 Id.
28 Id. at 671.
29 San Antonio Indep. Sch. Dist. v. Rodriguez , 411 U.S. 1, 22–23 (1972).
30 Walker , 901 F.3d at 1262.
31 Id. at 1251.
32 Id.
33 Id. at 1275.
34 Id. at 1252.
35 Id. at 1261.
36 O’Donnell , 892 F.3d at 161.
37 O’Donnell , 251 F. Supp. 3d at 1062.
38 Id.
39 Id.
40 Id. at 1063.
41 Id.
42 Id. at 1134.
43 O’Donnell , 892 F.3d at 157, 161.
44 Id. at 162.
45 14th Amendment, HISTORY, https://www.history.com/topics/black-history/fourteenth-amendment, (last updated Feb. 21, 2020).
46 Walker , 901 F.3d at 1262.
47 Id.
48 Tate , 401 U.S. at 398; see also Williams , 399 U.S. at 244.
49 Tate , 401 U.S. at 399.
50 Id.
51 Bennett, supra note 1, at 349.
52 Jones, supra note 6, at 1091–92.
53 O’Donnell, 251 F. Supp. 3d at 1067, 1138.
54 O’Donnell , 251 F. Supp. 3d at 1135; see Rodriguez, 411 U.S. at 22–23.
55 See Rodriguez , 411 U.S. at 22–23.
56 Williams, 399 U.S. at 243; Tate, 401 U.S. at 397; Bearden, 461 U.S. 671.
57 O’Donnell, 251 F. Supp. 3d at 1136.
58 Adureh Onyekwere, How Cash Bail Works , BRENNAN CENTER FOR JUSTICE (Dec. 10, 2019), https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works.