Cash bail and bounty hunters can be an important and useful part of the criminal justice system. The practice in New Orleans, however, of funding court and judicial benefits with a tax on bail is obnoxious. In recent years, the tax on bail has funded 20-25% of the Judicial Expense Fund which is used to pay staff and office supplies, travel and other costs. The 5th U.S. Circuit Court of Appeal was right to affirm that this tax violates a defendant’s due process rights because it gives judges an incentive to require bail for their own benefit rather than to incentivize the defendant’s court appearance.
“No man can be judge in his own case.” Edward Coke, INSTITUTES OF THE LAWS OF ENGLAND, § 212, 141 (1628). That centuries-old maxim comes from Lord Coke’s ruling that a judge could not be paid with the fines he imposed. Dr. Bonham’s Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610). Almost a century ago, the Supreme Court recognized that principle as part of the due process requirement of an impartial tribunal. Tumey v. Ohio, 273 U.S. 510, 523 (1927).
This case does not involve a judge who receives money based on the decisions he makes. But the magistrate in the Orleans Parish Criminal United States Court of Appeals District Court receives something almost as important: funding for various judicial expenses, most notably money to help pay for court reporters, judicial secretaries, and law clerks. What does this court funding depend on? The bail decisions the magistrate makes that determine whether a defendant obtains pretrial release. When a defendant has to buy a commercial surety bond, a portion of the bond’s value goes to a fund for judges’ expenses. So the more often the magistrate requires a secured money bond as a condition of release, the more money the court has to cover expenses. And the magistrate is a member of the committee that allocates those funds. Arrestees argue that the magistrate’s dual role—generator and administrator of court fees—creates a conflict of interest when the judge sets their bail. We [agree with the district court] that this dual role violates due process.
The plaintiffs also argued that judges must take into account a defendant’s ability to pay when setting bail. The appeals court didn’t rule on that issue but ironically judges who get a percent of the proceeds from bail do have an incentive to take into account ability to pay because only paid bail generates revenues. Eliminating the judge’s cut eliminates the incentive to think about ability to pay. Still, I support the decision. We should try for first best. The theory of second best leads only to madness and ruin.