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Article 334.4 should be repealed.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/pji-

reports/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 p er

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.”).