Today the Fifth Circuit ruled in the case of O’Donnel v. Harris County that “bail is not purely defined by what the detainee can afford.” Meaning, that if the procedures for review of bail are adequate any bail schedule is constitutional, regardless of a detainee’s ability to pay.
Harris County is enjoined from imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without providing an adequate process for ensuring that there is individual consideration for each arrestee of whether another amount or condition provides sufficient sureties.
In Harris county, a defendant who is unable to pay their bond will not automatically considered indigent or entitled to monetary relief. The court will now require an affidavit of indingency and verification of such claims by the court before ruling a detainee indigent. Following the filing of an affidavit, the court must hold a hearing within 48 hours.
This ruling comes after bail reform in Harris County (Houston) led failure to appear rates to skyrocket over 40 percent, far higher than 8 percent national average of detainees released on supervised, surety bonds.
The Houston Chronicle reported that of the 125 defendants released without bond between July 28 and October 5 of last year, 63 failed to appear in court and 114 had criminal records, including felonies that made them high risk – a disturbing trend among jurisdictions that have implemented similar bail reform policies.
The Fifth Circuit joins other high courts across the country in this finding, most recently the 11th Circuit US Court of Appeals who earlier this year ruled money bail to be constitutional in the case of Walker v. City of Calhoun.