Brandon Garrett

One hundred and fifty years after the ratification of the Fourteenth Amendment, there is no better time to think about the meaning of our constitutional equality and due process rights. At a time of rising social inequality, lawyers are achieving real victories on the ground with new constitutional theories striking at both inequality and unfair process.

Last month, a federal judge ordered Dallas County, Texas, to provide meaningful hearings before jailing poor people for failure to make bail. The lead plaintiff in the lawsuit was charged with misdemeanor shoplifting. She had bail set at $500, which she could not pay. Her hearing lasted about 20 seconds and then she was sent to 24-hour solitary confinement. The judge found such hearings unconstitutional, including based on videos[1] showing that they typically last under 30 seconds, but result in detention lasting for days, weeks, even months.

In July, Tennessee resident James Thomas finally got his driver's license back. Thomas, who is homeless, owed $289.70 in court costs, which he could not pay. He had been convicted of trespassing while seeking shelter from the rain under a bridge. A judge found[2] the state driver's license suspension law unconstitutional and ordered the state of Tennessee to start reinstating over 140,000 driver's licenses suspended for not paying court fees. The state is appealing the ruling.[3]

In August, a three-year legal battle against the judges of New Orleans Parish resulted in a federal judge's order that a "neutral" party has to decide whether people can afford to pay fines and fees. For years, local judges funded their court by relying on fines and fees imposed on poor criminal defendants. The judges could throw people back in jail for contempt if they did not pay. The judges rarely asked whether people could afford to pay. The New Orleans judges will appeal.[4]

What happened in Dallas and New Orleans and in Tennessee is happening across the country, lawyers filing civil rights cases challenging fines, fees and costs imposed on people who cannot and should not be expected to pay them. The U.S. Department of Justice may not be any longer bringing much-needed cases against towns like Ferguson, Missouri, in which the police and the courts were running a modern-day debtors' prison. Instead, local people and civil rights organizations are suing. They are suing judges, the DMV, detention centers, and private probation companies. There is active litigation in Alabama, California, Georgia, Louisiana, Missouri, North Carolina, Pennsylvania, Virginia, and many more cities, counties and states. An Alabama lawsuit just resulted[5] in a court order regarding bail practices. A lawsuit in Columbus, Georgia, challenging "victim fees" imposed on domestic violence survivors, settled, with the city agreeing to end the practice and pay back damages. Another lawsuit is challenging extra fees charged by a private "pay only" probation company in Georgia; in response the legislature stepped in to limit such fees.[6] A successful challenge to bail practices in cities like Houston, Texas, resulted in a landmark appellate ruling.[7] Class actions are challenging driver's license suspensions for failure to pay fees in North Carolina[8] and Virginia.[9]

There is an important new constitutional theory at work in these cases — and getting it right matters. The Due Process Clause of the Fourteenth Amendment says a state shall not "deprive any person of life, liberty, property, without due process of law." The focus is arbitrary and unfair process. Thirty second bail hearings look totally unfair — but a longer hearing is not enough.

That is why the Equal Protection Clause of the Fourteenth Amendment also matters. It states that no state shall deny to a person "the equal protection of the laws." The Equal Protection Clause forbids discrimination. The U.S. Supreme Court, in the well-known school funding decision of San Antonio v. Rodriguez, held while discrimination based on race is clearly forbidden, wealth disparities under law are not necessarily unconstitutional. Many interpreted the case as a turn away from a class-conscious Equal Protection Clause.

In fact, the Supreme Court continued to recognize that discrimination against the poor matters, but in different cases that grapple with inequality in the criminal justice system. The best example is the case of Bearden v. Georgia. In an opinion by Justice Sandra Day O'Connor, the court held a state court could not revoke a defendant's probation, returning him to prison for failure to pay a fine and victim restitution, without asking whether he could actually pay, or whether some alternative like community service could be used instead. A judge cannot imprison someone because "through no fault of his own, he cannot pay the fine."

The Bearden court explained that "[d]ue process and equal protection principles converge in the Court's analysis." You cannot ignore one at the cost of the other. Wealth inequality and arbitrary treatment of the poor both matter.

The claims in today's civil rights lawsuits bring out a connection between constitutional values of process and equality. After all, it is not just that there was an arbitrary and unfair process. There was: People in Dallas received no meaningful hearing and were not being asked whether they could pay fines, before being jailed. But there was also terrible inequality. Wealthy people could pay a fine and walk away. These are violations of both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.

There is nothing unusual about looking at two constitutional rights together in just this way. Duke Law Dean Kerry Abrams and I have showed how, in a wide range of areas, the Supreme Court engages in what we term "cumulative" constitutional analysis.[10] In these cases, courts use an intersectional analysis in which two constitutional rights bolster and inform each other. A prominent example is the Supreme Court's ruling on same-sex marriage in Obergefell v. Hodges.

This type of theory is alive and well. For example, in the Tennessee driver's license case, the judge agreed that if the case was purely an equal protection matter, the claims might fail. But the judge went on to explain that based on Supreme Court rulings, like Bearden, "the Supreme Court has said, in no uncertain terms, that a different set of tools is called for."

But some lower courts have misunderstood the law and focused on just due process or just equal protection. For example, the Fifth Circuit recently ruled in O'Donnell v. Harris County that the cash bail system in Harris County, Texas, violates the due process clause because it adopted a "flawed procedural framework," in which judges could set bail based on arbitrary and wealth-based criteria. However, an Eleventh Circuit ruling in Walker v. City of Calhoun, found that the challenged cash bail system was constitutional, finding that sufficient process had been provided. That court never fairly considered a Bearden claim.

I think both courts got it wrong. Although the Fifth Circuit opinion was hailed as a victory against abuse of cash bail, the ruling, in my view, focused too much on due process. It ordered that the new bail system for Houston focus more on process: more case-specific findings before decisions are made about bail. However, as University of Virginia law professor John Monahan and I have written, that remedy might not sufficiently eliminate troubling race- and income-based disparities.[11] Indeed, the ruling could lead to greater disparities and worse outcomes — because the Fifth Circuit never said that race and wealth inequality must be addressed as the new process is implemented.

Or compare another case: The Sixth Circuit, in a 2010 ruling in Johnson v. Bredesen, rejected a challenge to a state law that required former felons to pay outstanding child support before having their right to vote restored. Those judges said that unlike in Bearden, where people were incarcerated based on poverty, there was less cause for concern where poverty results in loss of the right to vote. The ruling is beyond disturbing.

For too long, many of our governments at all levels have punished the poor and profited from that punishment. The use of government to disproportionately tax the poor through fines, fees and costs, resulting in incarceration, loss of driver's licenses, loss of the right to vote, loss of housing, and loss of employment, will hopefully start to erode. A new wave of litigation and policy reform can help to bring the constitutional connection between equality and due process new life.

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Brandon L. Garrett is the L. Neil Williams Professor of Law at Duke University School of Law. He is the author, most recently, of "End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice." Garrett's work has been widely cited by courts, including the U.S. Supreme Court, lower federal courts, state supreme courts, and the Supreme Courts of Canada and Israel. He is involved with a number of law reform initiatives, including the American Law Institute's project on policing, for which he serves as associate reporter.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] www.dallasnews.com/news/courts/2018/09/20/federal-court-orders-dallas-county-make-individual-assessments-before-setting-bail

[2] www.tennessean.com/story/news/2018/07/05/tennessee-drivers-licenses-reinstated-after-court-ruling-unconstitutional-but-issues-remain/759272002/

[3] https://www.tennessean.com/story/news/2018/07/25/tennessee-appeal-federal-court-ruling-drivers-license-reinstatement/837794002/

[4] www.theadvocate.com/new_orleans/news/courts/article_fbd197d6-a56b-11e8-befe-abaf6281ca54.html

[5] www.cullmantimes.com/news/bail-case-holds-statewide-impact/article_6eebaf6e-b894-11e8-bb1f-c32f672a6c71.html

[6] https://www.themarshallproject.org/2017/04/13/probation-for-profit-just-got-less-profitable

[7] https://www.nytimes.com/2017/04/29/us/judge-strikes-down-harris-county-bail-system.html

[8] https://www.wsoctv.com/news/local/thousands-of-nc-licenses-revoked-because-drivers-can-t-afford-fines/759571913

[9] https://www.washingtonpost.com/dc-md-va/2018/09/12/virginia-drivers-license-suspensions-trap-poor-people-nightmarish-spiral-lawsuit-says/?noredirect=on&utm_term=.247b55ce3f16

[10] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2642640

[11] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3190403