Federal Appellate Court Considers ‘Right to Bail’

Eighth Amendment cited as a guarantee for cash bail in oral arguments

While bail reform efforts across the country seek alternatives to cash bail, appellants in a case that went before the 10th Circuit Court of Appeals last week claim that criminal defendants have a constitutional right to bail. 

The case, Collins v. Daniels, challenges New Mexico court rules that removed cash bail in favor of a risk assessment system. The plaintiffs in the case heard last week claimed that Darlene Collins was jailed longer than necessary even though her family was able and willing to pay for her release. 

The lawsuit alleges New Mexico Chief Justice Charles Daniels and the state Supreme Court denied bail to Collins and thousands of others in the state after the New Mexico Supreme Court in July 2017 implemented a no-money bail system. That system used an algorithm to screen defendants to determine the risk they won’t later appear in court and allows defendants to be released only after they have appeared.  

According to the complaint, Collins was arrested and detained in 2017 just as the state’s no-money bail scheme went into effect, and even though her family was willing to pay for her release, she was held for nearly five days. 

A similar case reached a ruling in the 3rd Circuit Court of Appeals that found there is no right to monetary bail under the Eighth Amendment.  

Although the 10th Circuit could find there is a right to bail, many state and local governments are trending away from using monetary bail. In addition to New Mexico, New Jersey and Washington, D.C., use risk assessment schemes, and last year California became the first state to abolish monetary bail outright. (The 3rd Circuit case challenged New Jersey’s scheme). Colorado is in the midst of its own bail reform efforts, as well. At least one bill related to pretrial release is expected to be introduced during the current General Assembly session, and former Colorado Supreme Court Chief Justice Nancy Rice created a bail reform commission in her final months as chief.  

That commission is headed by now-Supreme Court Justice Carlos Samour, and at the time the commission was formed, New Mexico’s system was cited as a positive example for maintaining defendants’ right to pretrial release. 

The arguments on Tuesday did not deal with the systems of pretrial assessment, however, and largely focused on prior cases that plaintiffs said alluded to a right to monetary bail as well as questions about one party’s standing in the case.  

Richard Westfall, the attorney for Collins, said she had a right to monetary bail under the excessive fines provision of the Eighth Amendment. 

“At the end of the day, there will be days of needless … incarceration while this process gets to work its way through,” Westfall said. “The charges against [Collins] were dropped. She was not dangerous, she was available and just because she happened to be booked two hours late, she was denied the ability to post monetary bail and be out within a matter of hours.” 

The judges were mostly quiet on the Eighth Amendment issue and, instead, Judge Scott Matheson questioned the standing of co-plaintiff the Bail Bond Association of New Mexico to be involved in the case after the district court found that it did not have standing. 

Westfall did not seem to convince the judges, instead going back and forth on the rules for third-party standing, and then used the final seconds of his time to again argue there is a constitutional implication of a right to monetary bail.  

The Eighth Amendment “necessarily assumes” a monetary component, he said, because in a 1951 case, Stack v. Boyle, the U.S. Supreme Court said excessive bail under the modern bail system is a violation of the Eighth Amendment.   

In response, Ari Biernoff an attorney representing the New Mexico State Judiciary picked up the issue of the Bail Bond Association’s standing. The judges pushed back against the appellee as well, asking why the association would need to have a legally cognizable injury in order to have standing. At least in relation to Collins’ case, the attorney for the judiciary argued that because Collins stated she was able to pay for her bail and did not need a bond, the association didn’t have a close enough relationship to her as a customer. 

On the Eighth Amendment question, the judges questioned Biernoff on how the pretrial assessment tool was applied and how that led to her being detained for multiple days without being able to post bail. Judge Mary Beck Briscoe noted that there had been a notice posted on the wall informing defendants of minor crimes that they could bail out immediately, but that notice had been removed just prior to Collins’ detainment. “And that’s the change of procedure that’s troubling the plaintiffs here,” she said. 

“There’s no right to what the plaintiff demands here, which is to have a money bond considered on equal footing with non-monetary conditions of release,” Biernoff said. “Plaintiffs have never identified a single authority for the proposition that the United States Constitution requires monetary bail as opposed to requiring some mechanism for criminal defendants pre-trial to secure release.” 

In response to the plaintiffs’ reference to an implied right within the Eighth Amendment, Biernoff said he did not believe the fact that the Stack case dealt with monetary bail could be stretched to imply a fundamental right. 

Although Briscoe pressed Biernoff for a response to the implication the plaintiffs cited, there didn’t appear to be an indication from judges on how they might rule on the right to bail. The 10th Circuit could create a circuit court split on the issue, which attorneys for the appellant said would “almost certainly guarantee a trip to the U.S. Supreme Court.” They did, however, indicate they might appeal to the Supreme Court if they lose the case. 

— Tony Flesor

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