The Volokh Conspiracy
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Costs and Benefits of Due Process
How should we weight the costs and benefits when we conduct due process balancing?
In 2016, Maranda ODonnell was arrested in Harris County, Texas, which includes the city of Houston, for driving with a suspended license to her mother's house in order to pick up her 4-year-old daughter. ODonnell's bail was set according to a fixed written schedule that the judicial officers had to follow in Harris County, Texas at the time. Like hundreds of thousands of others, she did not have a public defender. ODonnell lived "paycheck to paycheck," said she was "worried about whether [her] job will still be there when I get out," and simply could not afford to "buy [her] release from jail." At a brief hearing, the hearing officer set cash bail at $2,500 more than she could afford—and she was jailed.
ODonnell joined a federal civil rights lawsuit challenging these bail practices as an unfair due process violation. In 2017, federal judge Lee Rosenthal found the practices unconstitutional, relying on a detailed set of factual findings, and concluded that Harris County's misdemeanor bail policy violated the Due Process Clause. In 2019, the parties entered a Consent Decree, the first of its kind in the country, which required that most people arrested for misdemeanors be promptly released without having to pay for their freedom, and that more due process, including discovery and public defenders, be provided at bail hearings.
Since March 2020, I have served as the court-appointed monitor for the settlement, along with my colleagues and friends, law professor Sandra Guerra Thompson from the University of Houston Law Center, economics professor Songman Kang from Sungkyunkwan University in Seoul, Korea, and political scientist Dottie Carmichael from Texas A&M University. As monitors, we closely studied the bail reforms in Harris County.
What we learned surprised us. We knew that ending the cash bail system would free tens of thousands of people each year who would otherwise have ended up in jail. Before the consent decree, 90 percent of people arrested for misdemeanors had secured bonds imposed, which had to be paid before being released, and almost all were higher than $500. Afterwards, nearly 90 percent of misdemeanor arrestees were released on bond, mostly for $100 or less. We knew that liberty would benefit from this Consent Decree.
In the years of our work studying these reforms, however, we also consistently found that these reforms also powerfully benefited public safety. Every year since the reforms took effect, both misdemeanor arrests and rearrests have both declined. We recently summarized these findings in a law review article, and I discuss them more briefly in my new book.
That was not what opponents of these reforms predicted. They feared that protecting due process would result in rampant crime. Instead, we saw offending go down and the misdemeanor system shrink.
Yet, due process has typically had little to say about cash bail practices, which do not exist anywhere in the world but in the U.S. and the Philippines, where it is a quite modern practice. A few courts have found money bail systems to be unconstitutional and in violation of due process, but most have not. In 2011, in Turner v. Rogers, the U.S. Supreme Court held that a person could not be incarcerated for civil contempt for failure to pay child support when he lacked notice, a lawyer, or the chance to show that he had no ability to pay. Yet, scores of due process challenges to bail systems and other detention practices have failed.
Why does due process seem to have so little to say about the fairness of the process at pretrial bail hearings? As the U.S. Supreme Court famously put it in its landmark 1987 ruling in Salerno v. United States, approving the federal Bail Reform Act: "In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception."
That famous quotation, expressing a central due process commitment, has mainly been honored in the breach. The starting place of the Salerno decision seems reasonable enough: we have a due process right to liberty, and jailing people not convicted of a crime should be done only if, based on substantial evidence, they pose a risk to public safety. The Court emphasized the Bail Reform Act's high standard requiring "clear and convincing" evidence of a public safety risk, together with other process protections before pretrial detention could be ordered. And as with other due process settings, the Court found that a range of procedures could provide meaningful hearing rights.
Yet, when one rigorously examines the actual balance between providing procedural protections pretrial, and public safety, a very different picture emerges. Maybe it is not a zero-sum balance at all. Maybe it is more like the Culley case, which I discussed in my first post, where the Justices acknowledged that having a fair hearing serves both individual and government interests. Due process typically does.
And in Harris County, while it did cost something to implement due process reforms, including making public defenders available at bail hearings, the results have improved public safety. People may think that locking more people in jail makes them safer. Instead, freeing tens of thousands of people made the larger Houston community safer. Also telling, before the reforms, about two-thirds of misdemeanor cases in Harris County resulted in guilty pleas. Typically, after just two to three days in jail, people would plead guilty if they could not afford to pay for their release. Today, instead, about two-thirds of misdemeanor cases are eventually dismissed. And in the very small number of cases that go to trial, acquittal rates are high.
All of that tells us quite a lot about the benefits and limited costs of improving due process. Studies like that can be done in any number of other settings. And judges can more carefully balance the relevant costs when they conduct due process analysis. The Supreme Court's decision in Mathews v. Eldridge calls for such balancing in the administrative hearing context. And in general, as with the Salerno ruling that applies in bail settings, due process has historically involved balancing to reflect the fairness demands of the practical context. The lesson, though, from Houston, is that we can have due process, live in a fair society, and enjoy more security.
