Dallas County has a policy and practice of using secured money bail to impose pretrial detention on criminal defendants too poor to pay.  The plaintiffs in this case were all arrested in the County and denied pretrial release because they could not pay the prescribed cash bail.  Plaintiffs sued the County in U.S. District Court for the Northern District of Texas, claiming that this use of money bail results in only the most impoverished arrestees being detained and thus violates the Equal Protection and Due Process Clauses of the Constitution.  The district court granted, in part, the plaintiffs’ request for a preliminary injunction and a panel of the U.S. Court of Appeals for the Fifth Circuit affirmed that decision. The Fifth Circuit subsequently decided to rehear the case en banc.

CAC filed a friend-of-the-court brief in the Fifth Circuit on behalf of the plaintiffs, arguing that Dallas County’s system of secured money bail violates the Fourteenth Amendment’s guarantee of equal justice under the law to rich and poor alike.  Our brief explained that the County’s policy cannot be squared with the Fourteenth Amendment’s universal guarantees of due process and equal protection.  The County’s bail 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.  Our brief 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 en banc Fifth Circuit issued its decision on January 7, 2022. The court vacated the preliminary injunction on justiciability grounds and remanded to the district court to consider other outstanding issues. In dissent, Judge Haynes—joined by three of her colleagues—dissented, explaining that she would have affirmed the preliminary injunction. In so doing, she noted that “[t]he bail system at issue in this case blatantly violates arrestees’ constitutional rights” because “[f]reedom should not depend entirely on the financial resources at one’s disposal—and yet, in Dallas County, it does.”