Alabama Bail Bond Tax Should Be Declared Unconstitutional Because It Is Replete with Conflicts of Interest

Republican Ohio Supreme Court Justice Maureen O’Connor:

“Here in Ohio I have spoken out unequivocally that courts are centers of justice, not automatic teller machines whose purpose is to generate revenue for governments, including themselves,”

Apparently, the Alabama Legislature does not agree with this belief.  Check out the number of court cost bills pending before the Legislature at present. Even the non-partisan and typically apolitical Alabama State Bar has stepped into the fray.

A few years ago the Alabama added one such new tax: the Alabama Bail Bond Fee. I have now challenged the constitutionality of this tax in court.

The Code of Alabama sets out a schedule for bail bond fees aka taxes in § 12-19-311. These fees are to be charged on “every bail bond in all courts of this state” with the exception of traffic cases unless it is a “serious” traffic offense. Code of Alabama § 12-19-311(a)(1). The “tax” schedule begins with a filing fee of thirty-five dollars for every bond executed within the state.  §12-19-311(a)(1)(a).

On top of that, each misdemeanor offense carries with it a bail bond “tax” in the amount of 3.5 percent of the total bail bond or one hundred dollars, whichever is greater, so long as the total “tax” does not exceed $450. Code of Alabama § 12-19-311(a)(1)(b). Each felony offense carries a bail bond “tax” of 3.5 percent of the total bail bond or $150 dollars, whichever is greater, so long as the total fee does not exceed $750.  However, those released on their own recognizance, judicial public bail or a signature bond pay a flat fee of twenty five dollars.

Contempt proceedings may be initiated for failure to pay the fee, whereupon additional fines may be imposed. Code of Alabama § 12-19-311(d). Moreover, bail bond fees may not be “remitted, waived or reduced unless all other costs, fees, and charges of the court are remitted or waived.” Code of Alabama § 12-19-311(e)(4).

Pursuant to collection, the thirty-five dollar filing fee is distributed as follows: forty-five percent to the court clerk’s fund, forty-five percent to the Solicitor’s Fund and ten percent to the Sheriff’s fund. Code of Alabama § 12-19-311(f). The bail bond fees are distributed as follows: $21.50 to the Sheriff’s Fund; forty percent of the remainder to the court clerk’s fund, forty-five percent of the remainder to the Solicitor’s Fund and ten percent to the Alabama forensic Services Trust Fund. Code of Alabama § 12-19-311(g). Those funds distributed to the district attorney are to be used for “the payment of any and all expenses incurred by the district attorney in the discharge of his duties of the office or for any legitimate law enforcement purpose” while the fees distributed to the court clerk are to be used “at the discretion of the clerk, to support the functions of the office of the clerk.” Code of Alabama § 12-19-312(a)(b). The money in the Circuit Clerk’s fund shall be used “for the support of local court operations, including, but not limited to, salaries and benefits of court employees where necessary for the efficient operations of the courts.” Code of Alabama § 12-19-310(e)(1). The Circuit Clerk may also use money in the Circuit Clerk’s fund “for the purpose of awarding merit and promotions raises to full-time employees of the clerk’s office.” Code of Alabama § 12-19-310(e)(2).  It is the Clerk who sets the value of bail in each case, the money from which is used to provide funding for the Clerk’s office.

Both the Sheriff, the District Attorney and the Circuit clerk, then, have a structural financial interest in the imposition and collection of bail bond fees. This financial stake creates a conflict of interest for all three offices. Since the Clerk both sets the bond and benefits from the bail bond fee, a potential conflict arises from the temptation to impose higher bonds in order to receive a higher amount from each case. Since the bond fee for a recognizance bond is capped at $25, a potential conflict of interest for the District Attorney arises in the temptation to oppose recognizance and other low bonds in order to obtain a higher amount from the collection of bond fees for misdemeanors or felonies. And the Sheriff is financially incentivized to make arrests in lieu of release on recognizance.

The Supreme Court of the United States has held repeatedly that financial assessments, such as the one imposed by Alabama’s bail bond “tax,” may violate the Due Process Clause of the Costitution if such assessments create a “possible” financial conflict of interest, either personal or structural, or even just a “temptation” which would undermine the defendant’s right to an impartial judicial system. Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Village of Monroeville, 409 U.S. 57 (1972).

In Tumey, the mayor of the town was responsible for trying the case and also received “the amount of his costs in each case, in addition to his regular salary, as compensation for hearing such cases. But no fees or costs in such cases are paid him except by the defendant if convicted.” Tumey, at 520. The Supreme Court of the United States held that “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused” is a violation of the Due Process Clause. Id. at 532.

In Connally v. Georgia, 429 U.S. 245 (1977), the Supreme Court extended Tumey from mayors to magistrate judges. In that case, the magistrate testified that he became a justice of the peace “primarily because he was interested in a livelihood”, that there was no salary involved, that his compensation was directly tied to the number of warrants he issued, and that from January 1, 1973 until the date of his testimony, he had issued approximately 10,000 warrants for either search or arrest. The justice of the peace collected no money if the warrant was not issued.  The Supreme Court concluded that the rationale from Tumey and Ward was applicable to Connally.  Because the financial welfare of the magistrate was “enhanced” by issuing warrants and not enhanced by determining that no warrant should be issued, it offered the “possible temptation” which was a violation of the Due Process rights of the accused, because the magistrate had a “direct, personal, substantial, pecuniary interest” in the scheme. Thus due process is violated when there is a personal financial benefit from the assessments, as there is for the Circuit Clerk and staff, since money may be used to grant raises and provide salaries.

In Ward, a major portion (at times over half) of the village’s annual revenue was brought in through fees and fines collected from ordinance violations and traffic offenses.  These cases were presided over by the mayor of the town.  The State attempted to argue that the fact that such a large percentage of funds came from the mayor’s court did not rob him of his ability to be impartial.  The Supreme Court of the United States disagreed, holding that “the test is whether the mayor’s situation is one ‘which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused.’”  The Court held that the mayor’s responsibility for town finances, as the village’s chief executive, provided a temptation to “maintain the high level of contribution from the mayor’s court.” The mayor’s occupation of “two practically and seriously inconsistent positions, one partisan and the other judicial [and] necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.”  Thus, due process may be violated even where there is no personal financial benefit from the assessments, such as the situation where the District Attorney’s office is benefitted by the collection of bail bond fees and thus, necessarily, has a temptation to oppose recognizance and lower bonds.

Proof of an actual conflict of interest is unnecessary, as demonstrated in the case of Brown v. Vance, 637 F. 2d 272 (5th Cir. 1981). The test is to be leveled at the system, itself, rather than at the individual judge.  The mere possibility of bias, then, is sufficient to violate due process. The Brown court held that the compensation system for judges in two Mississippi counties created an incentive for judges to favor the State in criminal cases. Judges were compensated regardless of whether the defendant was convicted or not, however, their compensation was also tied to the number of cases filed within the individual judge’s court.  While officers were supposed to assign cases to judges evenly, statistics showed, and the Chief of the Mississippi Highway Patrol, admitted that officers were more likely to assign a case to a judge whom they believed would be more likely to convict the defendant. Citing Tumey and Ward, the 5th Circuit held that there was no need to show either “actual judicial prejudice” or “direct pecuniary interest” because the system itself caused “possible temptation to the average man as a judge to forget the burden of proof required to convict to the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused.” The Mississippi fee system was found to violate the due process rights of criminal defendants.

The Sixth Circuit ruled similarly in DiPiero v. City of Macedonia, 180 F. 3d 770 (6th Cir.1999). In that case, the Court held that the possibility of structural financial conflict of interest, which violated due process, could exist in the event of a possibility that a judge, because of his or her institutional responsibilities, may rule in a way that will aid the institution that the judge represents. Mere possibility of temptation is all that is required by the Supreme Court’s binding opinions.

In Rose v. Vill. of Peninsula, 875 F. Supp. 442, 451 (N.D. Ohio 1995), the Appellant alleged that the Mayor had encouraged city police to charge people with violations of city ordinances, rather than state laws, to increase the amount of funding for the village. The Mayor also served as the judge in the mayor’s court, where he heard cases and imposed monetary fines for traffic violations.  The Appellant argued that he could not be an impartial judge since he was also responsible for the city’s finances. The Court looked at the percentage of village revenue comprised by fees and fines from the mayor’s court and determined that over 10% of the village’s general fund was derived from such. The Court held this percentage to be “substantial”. Id. While substantiality was not the solely determining factor, the Court held that it was a major factor in determining that the scheme violated the due process rights of the accused.

Reviewing courts are likely to find a due process violating where the judiciary controls the financial assessments generated from adjudications, such as is the case with Alabama’s scheme, wherein the court clerk sets the value of the bail. In Augustus v. Roemer, the state of Louisiana imposed a bail bond fee schedule remarkably similar to the one currently in place in Alabama. In that case, the Court held the scheme unconstitutional because the courts exercised total control over the funds collected, which were used to run the criminal justice systems in the parishes.  This created a plain temptation and was a violation of due process.

There is a conflict in Alabama scheme. To start,

• The Sheriff and his deputies have a structural conflict of interest because Sheriff’s fund is impacted by the decision whether to arrest a person or release with merely a court citation.
• The court clerks have a structural conflict of interest because the decision of whether to issue a warrant and establish a bail bond, and to set a value for said bail bond, rests entirely with them. The receipt of funds into the court clerk’s funds is directly tied to whether or not a warrant and bond is issued. Secondly, the amount of financial revenue taken in by the clerks under the bail bond fee schedule would be significantly reduced by allowing the accused judicial public bail, recognizance or signature bonds, thus creating a further structural conflict of interests.
• The magistrates and court clerks have an additional conflict of interest in that financial receipts are directly determined by the amount of the bond which is, again, set by the clerks.
• A fourth structural conflict exists because there are executive and judicial responsibilities exercised by clerks, financial assessments make up substantial portions of the budget, and the judiciary exercises substantial discretion in spending those proceeds.
• Finally, a structural conflict exists for the clerks because the clerks have almost complete discretion over the proceeds of the bail bond fee, including the ability to provide salaries and raises, after exercising their power to set the value of bond, on which the fee is calculated.
• The District Attorney, likewise, is subject to a “temptation” and conflict of interest because his office, too, will receive funds from the proceeds of the bail bond fees, thus making it in his interest to oppose recognizance, signature, public judicial or other low bond mechanisms.

I’ll conclude with a return to Justice O’Conner’s letter to Ohio judges:

I know the pressure that many of you face to generate revenue, to increase collection rates, to “self-fund” as if the courts are a business trading in a commodity. But court cases are not business transactions. We do not buy and sell a commodity; we perform a public service. Nevertheless, focus on the “business” of the courts appears at times to be overtaking interest in our fundamental responsibility to do justice…Pressure that courts self-fund can create a system of justice that is premised on a “pay-as-you-go” model, not the principle that courts and the administration of justice are a fundamental and general obligation of government. If the existence of a court is dependent upon self-funding, we run the danger of creating a system of built-in incentives for courts to use judicial power for self-preservation not the promotion of justice for all. . . . Judges and court staff cannot be seen as collection agents. Whether courts contribute to a city’s
bottom line or generate sufficient cash flow for its own operations should not be even a secondary thought considering the role of the judiciary in our system of government.