The Lack of Money is the Root of All Evil: Louisiana's Ban on Bail Without Surety

• Author: Gabriel Loupe
• Position: J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 109-141

The Lack of Money is the Root of All Evil: Louisiana’s Ban on Bail Without Surety INTRODUCTION Two brothers are arrested for the same crime—possession of marijuana with the intent to distribute. 1 They are in all respects the same man: they have the same education, the same criminal record, and the same ties to the community. They differ in only one respect: one brother has money, while the other has none. Nevertheless, Louisiana law does not treat these brothers the same. In fact, the brother with money will quickly be out of jail, while the indigent brother will stay incarcerated for the entire pretrial duration. The two brothers will experience vastly different pretrial outcomes, solely because of their respective wealth. Louisiana Code of Criminal Procedure article 334.4 imposes a ban on judges releasing defendants on their own recognizance when they are charged with certain crimes. 2 This ban might violate an indigent defendant’s right to procedural due process, right to equal protection under the law, and right to be free from excessive bail. Execution of the article carries with it a host of deleterious effects. 3 Litigation on the issue, however, is rare. Because Article 334.4 exclusively governs bail, it applies only to pretrial detention. Any challenge to the law therefore faces issues of mootness and ripeness. There exists only one federal case in which a petitioner challenged the law. In 2014, an arrestee challenged Article 334.4 in Faulkner v. Gusman , arguing that it violated his right to procedural due process and his right to be free from excessive bail. 4 Although the challenge was unsuccessful, many of the concerns raised by the petitioner remain. Article 334.4 should be repealed. The article violates equal protection rights by imposing pretrial detention on the extremely indigent solely because of their inability to pay. This pretrial detention is statistically linked to increased recidivism and poor trial outcomes. Article 334.4 violates due process by denying defendants the chance to show that they are not a flight risk and that pretrial detention is not needed. Finally, the Copyright 2016, by GABRIEL LOUPE. 1. LA. REV. STAT. ANN. § 40:966 (2016). 2. LA. CODE CRIM. PROC. art. 334.4 (2016). Releasing a defendant on his own recognizance means releasing him for no monetary fee. Some jurisdictions refer to this as “bail without surety.” 3. See infra Part IV. 4. Faulkner v. Gusman, No. 13-6813, 2014 WL 1876213 (E.D. La. May 9, 2014). 110 LOUISIANA LAW REVIEW [Vol. 77 article violates the constitutional prohibition on excessive bail by mandating bail even in cases where none is needed to ensure that the accused attends trial. Part I of this Comment provides a historical overview of bail, due process, and Article 334.4. Part II discusses the challenge put forth in Faulkner v. Gusman , including the state’s responses to the petition and the ultimate judgment of the court. In Part III, newly released data on Louisiana bond amounts is used to dispute several claims of the Faulkner court and analyze the constitutionality of Article 334.4, concluding that the article potentially violates procedural due process, equal protection, and the excessive bail clauses of the Louisiana and the United States constitutions. Finally, Part IV provides reasons for the repeal of Article 334.4 and explores policy considerations pursuant to such an action, including the effects of pretrial detention on conviction rates and sentencing. I. BAIL, ARTICLE 334.4, AND POTENTIAL CONSTITUTIONAL CHALLENGES: A BRIEF PRIMER Understanding the history of bail, due process, and equal protection is necessary to understand the constitutional issues of Article 334.4. Bail originated as an early Anglo-Saxon practice designed to manage a lack of prisons. Over the centuries, it developed into a protection for citizens from their government. 5 Bail determinations in the United States are intimately related to due process, which is guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. 6 The Constitution’s guarantee of equal protection under the law also serves to protect indigent citizens from unjust outcomes in criminal trials. 7 Louisiana’s passage of Article 334.4 implicates issues of excessive bail, due process, and equal protection. 5. TIMOTHY R. SCHNACKE ET AL., PRETRIAL JUDICIAL INST., THE HISTORY OF BAIL AND PRETRIAL RELEASE 3 (2010), http://www.pretrial.org/download/pjireports/PJI-History%20of%20Bail%20Revised.pdf [https://perma.cc/8UGP-HS7G] (“[Over 500 years, the English] Parliament focused on adding safeguards to the bail process to protect persons from political abuse and local corruption.”). 6. See generally United States v. Salerno, 481 U.S. 739 (1987). 7. See generally Lauren Sudeall Lucas, Reclaiming Equality to Reframe Indigent Defense Reform , 97 MINN. L. REV. 1197 (2013). 2016] COMMENT 111 A. A Brief History of Bail The practice of bail has a history extending back millennia to the early Roman Republic. 8 Bail originally existed as a practical solution to the rarity of prisons in the Anglo-Saxon period; in modern times, it has developed into a required aspect of due process and the presumption of innocence. In Anglo-Saxon England, an accused man would be released before trial if a surety “would guarantee both the appearance of the accused at trial and payment of [monetary fines] upon conviction.” 9 Were the accused to flee before trial, he would be presumed guilty, and the surety would be required to pay the monetary fines of his conviction. 10 Bail, therefore, was set at the amount that would be paid should the accused be found guilty. 1. Bail in England In 1275, the English Parliament passed the Statute of Westminster, which modified the bail practices of the earlier Anglo-Saxon period. 11 The Statute required that sheriffs deny bail to three groups: (1) prisoners who committed certain offenses; (2) those who self-incriminated, were caught in the act, or were excommunicated; and (3) those who had attempted escape or “those of ill fame or bad character.” 12 For such a statute to be passed, it would seem necessary that bail be granted frequently to the accused, if not by default. Magna Carta’s requirement that no man be divested of liberty or property without due process clearly shows that the English celebrated a basic presumption of innocence. 13 This presumption, codified in 1215, could not have been forgotten by the passing of the Statute of Westminster 60 8. SCHNACKE, supra note 5, at 1. See also Andrew Lyons, Ancient Roman Precedent for the Taking of Bail , HEARSAY, http://www.hearsay.org.au /index.php?option=com_content&task=view&id=127&Itemid=48 [https://perma.cc /PD64-NHCA] (last visited Sept. 4, 2016) (“There is a record of bail being taken as far back as about 461 BC.”). 9. June Carbone, Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail , 34 SYRACUSE L. REV. 517, 519– 20 (1983). 10. Id. at 520. 11. Id. at 523. 12. Id. at 520 n.38. 13. MAGNA CARTA *39 ( Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur . . . nisi per legale judicium parium suorum vel per legem terre . Literally, “No free man may be taken, or imprisoned, or deprived of property, or outlawed, or exiled, or by any other mode brought to ruin . . . except by the legal judgment of his equals or by the law of the land.”). 112 LOUISIANA LAW REVIEW [Vol. 77 years later; the Statute served to temper Magna Carta’s liberal bail rules. By the time of the American Declaration of Independence, bail in the United Kingdom had become a strong shield of liberty against the Crown. 14 2. Bail in the United States Bail practices in the United States originated from this long history of bail in the United Kingdom. In the 17th century, Parliament passed multiple bills of legislation granting subjects of the Crown increased rights of bail. 15 Among these were (1) the Petition of Right, which forbade courts to detain subjects without charging them; (2) the Habeas Corpus Act of 1679, which created procedural safeguards to prevent lengthy pretrial delays; and (3) the English Bill of Rights of 1689, which stated that “excessive bail ought not be required.” 16 The United States Constitution, mirroring this latter convention, established that “[e]xcessive bail shall not be required.” 17 The United States Supreme Court has held that “[u]nless [the] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” 18 In United States v. Salerno , the Court held constitutional the Bail Reform Act, which permits federal courts to deny bail to certain dangerous arrestees; 19 however, it stipulated that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” 20 The federal system of bail follows this guideline. Federal law prohibits a judicial officer from “impos[ing] a financial condition that results in the pretrial detention of the person.” 21 The U.S. Fifth Circuit Court of Appeals, however, has repeatedly held that a defendant’s inability to post bail does not by itself render a bail setting unconstitutionally excessive. 22 The court 14. Carbone, supra note 9, at 528. 15. Id. 16. SCHNACKE, supra note 5, at 3–4. 17. U.S. CONST. amend. VIII. 18. Stack v. Boyle, 342 U.S. 1, 4 (1951) (holding that bail had been assigned in excess when the district court had assigned $50,000 bail to members of the Communist Party solely on the basis that former arrestees charged with violating the same law had forfeited bail). 19. See United States v. Salerno, 481 U.S. 739 (1987) (holding that the Bail Reform Act, which permits federal courts to deny bail to certain dangerous arrestees, was constitutional). 20. Id. at 755. 21. 18 U.S.C. § 3142(c)(2) (2012). 22. United States v. McConnell, 842 F.2d 105, 107...