Trends 2013-2016

A list of monthly Trends articles for August 2013 through October 2016 has been compiled.  See full article archive.

The Constitutionality of Bond Schedules

Greg Hurley, Senior Knowledge Management Analyst, Knowledge and Information Services, National Center for State Courts

A number of jurisdictions use bond schedules to establish the monetary amount of bonds for criminal defendants, but there have been lawsuits challenging this practice as unconstitutional. The article discusses bond schedules, the constitutional argument against them, and why courts should consider discontinuing this practice.

A common practice with limited-jurisdiction courts is the use of bond schedules to determine the monetary amount defendants must pay to secure their release. Their use is particularly common in misdemeanor charges, but some jurisdictions also employ them with lower-level felony charges.

A bond schedule is an established financial amount for specific charges or classes of charges. It is a charge-based system for setting bonds and is not based on the actual characteristics of individual offenses. For example, the bond schedule may establish a $1,000 cash bond for the charge of driving under the influence, while the bond may be $500 if the charge is misdemeanor larceny or shoplifting. A judicial officer setting the bond in a jurisdiction using a bond schedule merely identifies the predetermined bond amount for each charge and sets the bond. In doing so, the judicial officer does not consider whether the defendant is employed and has the ability to pay, whether the defendant is a flight risk based on contacts to the community or other factors, or whether the defendant poses any risk to the community. A very common version of bond schedules is used in traffic cases when bonds are set at the amount of the anticipated total of the fine and court cost. Jurisdictions that use this system often require the person posting the bond to sign an authorization that the money paid for the bond can be used to pay the fine and court costs if the defendant is convicted.

From an administrative perspective, bond schedules make a lot of sense. This is particularly true in high-volume courts that may establish bonds in hundreds of cases a day. Establishing the dollar amount of a bond using a bond schedule becomes a ministerial function and can be done in seconds. If judicial officers consider other factors, such as the defendant’s ability to pay the bond, they will need to give each defendant at least a few minutes to describe their financial circumstances. Additionally, they would also need to hear from the arresting officer or a prosecutor to determine whether and to what extent a given defendant may be a flight risk or pose a risk of criminal conduct while on bond.

In the past, it was generally recognized that the principal purpose of bonds is to ensure that a given defendant appears at future court proceedings related to his or her case. In Stack v. Boyle, 342 U.S. 1 (1951), the U.S. Supreme court stated, “The fixing of bail before trial for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.” That purpose has been expanded over time to include a societal-protection element. Currently, most states have statutory language, court rules, or both that suggest that the purpose of bond is at least twofold: to ensure that defendants appear for future court proceedings and are not a risk to the community. Many of these statutes or rules many contain additional considerations. However, some jurisdictions have either interpreted these statutes or rules in a way that permits bond schedules, or ignored their existence altogether. Additionally, the legal framework for the setting of bonds may be inapplicable to municipal courts, or municipal courts may be unaware that it exists.

On January 15, 2015, Christy Dawn Varden filed an action against the City of Clanton in the United States District Court for the Middle District of Alabama (Christy Dawn Varden et al. v. The City of Clanton, Case No. 2:15-cv-34-MHT-WC, U.S. District Court for the Middle District of Alabama, Northern Division). Ms. Varden was arrested for shoplifting, resisting arrest, failure to obey an officer, and possession of drug paraphernalia. Pursuant to a bond schedule established by the City of Clanton, which mandated a defendant must pay a $500 cash bond for each misdemeanor offense to secure release pending trial, the municipal judge set her bond at $2,000. Ms. Varden was indigent at the time of the filing, had severe mental illness, and had no assets. As a result, she was unable to post bond and was incarcerated pending her trial on the issues. She alleged in her action that her due-process rights under the Fourteenth Amendment were violated by the City of Clanton when the municipal judge arbitrarily assigned an amount for her bond without any consideration of her ability to pay the bond, her likelihood of appearing at future court proceedings, or the risk she posed to the community.

On February 13, 2015, the United States filed a Statement of Interest in the Case. The United States has authority to file a Statement of Interest pursuant to 28 U.S.C § 517, which permits the attorney general to attend to the interests of the United States in any case pending in a federal court. They are rarely filed and are intended to allow the attorney general a voice to address serious deprivations of constitutional rights. In this case the government’s filing noted:

Without taking a position on the factual accuracy of Plaintiff’s claims, the United States files this Statement of Interest to assist the Court in evaluating the constitutionality of Clanton’s bail practices. It is the position of the United States that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.

Ms. Varden died before the resolution of her case. However, the court permitted the administrator of her state to proceed with the litigation. On September 14, 2015, U.S. District Judge Myron H. Thompson signed a judgment, which formalized a settlement agreement between the parties. The judgment contained the following language:

The use of a secured bail schedule to detain a person after arrest, without a hearing on the merits that meets the requirements of the Fourteenth Amendment regarding the person’s indigence and the sufficiency of the bail setting, is unconstitutional as applied to the indigent. Without such a hearing, no person may, consistent with the Fourteenth Amendment, continue to be held in custody after an arrest because the person is too poor to deposit a monetary sum set by a bail schedule. If the government offers release from custody after an arrest upon the deposit of money pursuant to a bail schedule, it cannot deny release from custody to a person, without a hearing regarding the person’s indigence and the sufficiency of the bail setting, because the person is unable to deposit the amount specified by the schedule. See Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978); Bearden v. Georgia, 461 U.S. 660 (1983); and State v. Blake, 642 So. 2d 959 (Ala. 1994).

Although Ms. Varden was represented by local counsel, they were supported by Equal Justice Under the Law, a nonprofit corporation located in the District of Columbia. Subsequent to the Varden case being filed, the organization has filed several other similar actions. Most of these cases have settled within days of the actions being filed, and each settlement required the court system in question to permanently discontinue using a bond schedule.

The lesson of the Varden case and its progeny is simple for jurisdictions that currently use a bond schedule. The practice is unconstitutional and should be discontinued immediately. The law does not permit indigent defendants to be incarcerated before trial merely due to their financial status. At a bare minimum, for defendants who either express or demonstrate an inability to pay a specified bond, judicial officers should make an inquiry into their financial status and adjust the bond amount appropriately. Alternatively, the court may wish to consider using personal-recognizance bonds for lower-level misdemeanors and avoid the whole issue.

Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.