“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. 

Trump Judge Kyle Duncan of the Fifth Circuit was the deciding vote in a 2-1 decision in August 2018  to stay a remedy ordered by a lower court for the Harris County, Texas practice of keeping poor people in jail who cannot pay bail on minor misdemeanor offenses, without even determining whether release without bail would  pose any problems. The Fifth Circuit had previously agreed that this was an unconstitutional practice; in this case, Judge Graves’ strong dissent pointed out that as a result of the recent majority decision, the county’s “unconstitutional bail practices will continue to deny equal protection and due process” to poor people in the Houston area.

O’Donnell v, Harris County was filed as a class action in 2016 challenging what the trial judge found was the county’s practice of imposing “de facto orders of pretrial detention” on all poor people charged with minor misdemeanor offenses, such as driving without a license. The county imposed a set amount of bail for each particular offense, and did not consider whether the individual could pay the amount or whether there was any risk of the individual not appearing if released without bail. The court issued a preliminary injunction against the practice. In early 2018, the Fifth Circuit agreed that the practices were unconstitutional, but sent the case back to the trial court to issue a more narrow preliminary injunction. The district court did so promptly, and the county filed an appeal, asking that the preliminary injunction be stayed or stopped while the court fully considered its appeal.

In a 2-1 ruling in which Duncan cast the deciding vote, a different Fifth Circuit panel agreed to stay the injunction, claiming that it was still too broad. Key to its holding was the majority’s claim that the decision to hold a poor person in jail, sometimes for days, before an individualized hearing was subject only to “rational basis” review – that is, that the decision would be upheld against a constitutional challenge as long as there was a “rational basis” for it. As the dissenting judge pointed out, however, that claim was “foreclosed” by the Fifth Circuit’s own contrary ruling on the previous appeal, and also “squarely contravenes” Supreme Court precedent. The district court’s revised and “narrowly tailored” injunction, Judge Graves explained, “fully comport[ed]” with the Fifth Circuit’s previous decision. But Judge Duncan’s deciding vote meant that the injunction would be suspended and the unconstitutional jailing of poor people in Harris County would continue.