              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                   __________________________

                          No. 01-31408
                   __________________________


KAYNE BROUSSARD, ETC; ET AL.,
                                                        Plaintiffs,

versus

THE PARISH OF ORLEANS, ETC; ET AL.,
                                                        Defendants.

LEONARD J. DAZET, JR., and all those
similarly situated; JAMES ANTHONY McDANIEL,
and all those similarly situated,
                                              Plaintiffs-Appellants

versus

M.J. FOSTER, ETC; ET AL,
                                                        Defendants

KENNETH GOSS, Sheriff of Acadia Parish; ET AL,
                                             Defendants-Appellees

DEMICO PERKINS, and all those similarly situated,
                                              Plaintiff-Appellant

versus

M.J. FOSTER, ETC; ET AL,
                                                        Defendants

CHARLES C. FOTI, JR., Individually and in his
official capacity as the Criminal Sheriff of
Orleans Parish, State of Louisiana,
                                                Defendant-Appellee

DEMICO PERKINS, and all those similarly situated,
                                              Plaintiff-Appellant

versus

M.J. FOSTER, ETC; ET AL,
                                                            Defendants

EDWIN A. LOMBARD, In his official capacity as
Clerk of Criminal District for the Parish of
Orleans, State of Louisiana, THE CITY OF NEW ORLEANS,
                                              Defendants-Appellees
-----------------------------------------------------------------
                         Cons/W 01-31410
KAYNE BROUSSARD, ETC; ET AL.,
                                                       Plaintiffs,

versus

THE PARISH OF ORLEANS, ETC; ET AL.,
                                                        Defendants.

DEMICO PERKINS, and all those similarly situated,
                                              Plaintiff-Appellant

versus

M.J. FOSTER, ETC; ET AL,
                                                            Defendants

EDWIN A. LOMBARD, In his official capacity as
Clerk of Criminal District for the Parish of
Orleans, State of Louisiana, CITY OF NEW ORLEANS,
                                              Defendants-Appellees

         ___________________________________________________

            Appeals from the United States District Court
                for the Eastern District of Louisiana

       ___________________________________________________
                         January 10, 2003
Before WIENER and STEWART, Circuit Judges, and RESTANI,1 Judge.

WIENER, Circuit Judge:

     In this case, the Plaintiffs-Appellants (“arrestees”), are

members of a state-wide group of persons arrested within one year

prior to commencement of this suit.    They now appeal the district

     1
      Judge of the U.S. Court of International Trade, sitting by
designation.

                                  2
court’s rejection of their challenges to three Louisiana statutes,

each of which requires payment of a fee as a prerequisite to

release on bail.     As we find that such fees are administrative

charges reasonably related to the functioning of the bail-bond

system, we affirm.

                       I. FACTS AND PROCEEDINGS

     Plaintiffs-Appellants comprise three classes of arrestees who

challenge   three   Louisiana   statutes   (“bail-fee   statutes”)   that

impose specified charges or fees when an arrested individual posts

bail.2   Each class is limited to individuals who were arrested

within one year of filing suit. The Defendants-Appellees are the

sheriffs of almost every Parish in Louisiana (collectively, the

“sheriffs”), including the Sheriff of Orleans Parish (“Orleans

Sheriff”), and the Clerk of the Criminal District Court for Orleans

Parish (“Orleans Clerk”).3

     The following provisions are the challenged portions of the

bail-fee statutes:

  1. Section 1432(9) [hereinafter the “multi-sheriff statute”]:

  The compensation, fees and costs allowed sheriffs, the parish
  of Orleans excepted, for all services in criminal matters,

     2
      The first class consists of arrestees in every Louisiana
Parish except Orleans, Avoyelles, Livingston, St. James, and
Lafayette. The second class consists of arrestees of Orleans
Parish, and the third class consists of arrestees who paid the
bail fee to the Clerk of the Criminal District Court of Orleans
Parish.
     3
      Defendants-Appellees do not include the sheriffs of
Avoyelles, Livingston, St. James, or Lafayette Parishes.

                                    3
  shall be the following:
       9) For taking appearance bond when required to do so,
  fifteen dollars, unless suspended by a judge of the district
  court of the parish.    A judge of a district court of the
  parish shall waive this fee if a defendant has been tried and
  found not guilty or if the charges against the defendant are
  dismissed.4

    2. Sections 1520(3) and (6) [hereinafter “Orleans Sheriff

statute”]:

  The criminal sheriff of Orleans Parish shall collect from the
  parties, from witnesses, from sureties, and from sureties on
  bonds forfeited, the following fees and charges:
       (3) For serving notice of arraignment or of trial on
  accused and surety, for each, and return, seven dollars;
       (6) For taking appearance bond or recognizance bond when
  required to do so, fifteen dollars, unless suspended by the
  judges of the Criminal District Court of the Parish of
  Orleans.5

   3. Section 1381(3) [hereinafter “Orleans Clerk statute”]:

  The following charges may be made for the services of the
  clerk of the criminal district court:
       (3) For filing and processing of appearance or witness
  bond, five dollars.6

     The bail-fee statutes are among a more extensive group of

statutes that provides for fees in a variety of situations.              For

instance, the Orleans Parish sheriff may charge twelve dollars

“[f]or   serving   attachments   to       bring   witnesses   into   court”7;

sheriffs of other parishes may charge two dollars “[f]or each




     4
      La. Rev. Stat. Ann. § 33:1432(9) (2002).
     5
      La. Rev. Stat. Ann. § 33:1520(3), (6) (2002).
     6
      La. Rev. Stat. Ann. § 13:1381(3) (1999).
     7
      La. Rev. Stat. Ann. § 33:1520(5) (2002).

                                      4
warrant executed outside of the parish”8; and the Orleans Clerk may

charge two dollars “[f]or filing and recording [an] affidavit.”9

Taken     together,    the   entire   group     reveals   that     Louisiana   has

delegated      to     various   parish       officials    a     portion   of   the

responsibility for covering the expenses that they incur while

carrying out administrative tasks.

     The     bail-fee     statutes,    however,      do   not    constitute    the

exclusive legislative attempt to collect money through or for the

benefit of the bail-bond system.             Section 1065.1 of Title 22 of the

Louisiana Revised States imposes a two percent “fee on premium for

all commercial surety underwriters who write criminal bail bonds in

the state of Louisiana.”10       This fee is distributed to the judicial

court fund (25%), the sheriff’s general fund (25%), the district

attorney’s operating fund (25%), and the Indigent Defenders Program

(25%).11     This provision, in fact, was enacted contemporaneously

with the repeal of similar but piecemeal legislation,12 and as a

result constitutes “the exclusive fee or tax on any criminal bail




     8
        La. Rev. Stat. Ann. § 33:1432(7) (2002).
     9
        La. Rev. Stat. Ann. § 13:1381(1) (1999).
     10
          La. Rev. Stat. Ann. § 22:1065.1(A) (2003).
     11
          La. Rev. Stat. Ann. § 22:1065.1(B) (2003).
     12
      See 1993 La. Acts 834, at 2212; La. Rev. Stat. Ann. §§
13:994(B), 996(B), and 1384 (1999).

                                         5
bond premium.13 Finally, the Louisiana Legislature has provided for

the distribution of bond forfeiture amounts from district courts,

parish courts, and city courts to some parish sheriffs around the

state.14 In total, sheriffs receive funds to support the bail- bond

system from (1) a tax on bondsmen (which the bondsmen likely pass

on to arrestees), (2) fees imposed by the bail-fee statutes at

issue here, and, for some sheriffs, (3) bond forfeitures.

     In the district court, arrestees invoked 42 U.S.C. § 1983 to

challenge the constitutionality of the bail-fee statutes under the

Fourth, Eighth and Fourteenth Amendments, both facially and as

applied.      As matters outside the pleadings were presented to the

district court, it converted the sheriffs’ motion for judgment on

the pleadings into a motion for summary judgment, then rejected all

of arrestees’ claims.

     On appeal, the crux of arrestees’ argument is the same as it

was before the district court:     An arrested person should not have

to pay a statutory fee to the parish sheriff or clerk over and

above the amount of bail they are required to post.       First, and

most significantly, they rely on Augustus v. Roemer to argue that

an arrestee has a fundamental right “not to be deprived of or

unreasonably inhibited from exercising [bail] once it has been


     13
      La. Rev. Stat. Ann. § 22:1065.1(A) (2003). There is one
exception to the exclusivity of this fee, but it is not relevant
here. Id.
     14
          1993 Acts, No. 834, at 2206, § 571.11(L).

                                   6
favorably     determined.”15   As   a   result,   insist   arrestees,   the

government must have a compelling interest to restrict that right.

Imposing a monetary charge for the purpose of raising revenue, they

assert, is not an adequate compelling interest.        This fundamental-

rights contention also provides a foundation for arrestees’ equal

protection and procedural due process claims.

     Second, arrestees insist that charging bail-bond fees is akin

to imposing costs of prosecution on an acquitted defendant. Third,

they contend that the statutes are void on vagueness grounds

because different sheriffs charge fees in differing amounts and

maintain     inadequate,   ambiguous    refund    procedures.     Fourth,

arrestees assert that the bail-fee statutes tempt sheriffs to stack

charges so as to fill their departments’ coffers. This temptation,

claim the arrestees, violates their procedural due process rights

to “an impartial determination of the number of bookings.”         Fifth,

they contend that these fees constitute excessive fines under the

Eighth Amendment.       Finally, they argue that charging a fee to

exercise bail constitutes an unreasonable seizure of their person

and property under the Fourth Amendment.16

     15
          771 F. Supp. 1458, 1468 (E.D. La. 1991).
     16
      The arrestees’ remaining three distinct claims are
meritless. They first argue that sheriffs are exceeding their
authority if the statutes are construed to impose fees after
conviction. The statutes, however, fairly clearly provide for
fee collection before conviction, as that is when a bond is
usually taken. Second, arrestees dispute the district court
statement that they failed to show that any charges on arrestees
had been dropped. As we explain, however, arrestees’ claims fail

                                    7
      In contrast, the sheriffs contend that the outcome of this

case, at least with regard to the multi-sheriff statute, §1432(9),

is governed by our holding in Enlow v. Tishomingo County.17                At

issue in that case was a bail-fee statute that was quite similar to

the one challenged here.       The district court in Enlow rejected a

procedural        due    process     challenge      to   that      statute’s

constitutionality, and we summarily affirmed the district court,

concluding on the basis of our review of the briefs and record that

the opinion was “well reasoned and [the case] correctly decided.”18

The   sheriffs     contend   that    the   only   difference    between   the

Mississippi statute and Louisiana’s bail-fee statute is that the

Mississippi bail fee was calculated as a percentage of the bond,

and the statewide Louisiana bail-fee statute assesses a fixed

charge of fifteen dollars.          This difference, they insist, is not

material.

      The sheriffs also deny that there is any fundamental right to

free bail access, and rely on Schilb v. Kuebel to argue that the

bail-fee statutes merely authorize valid administrative fees to


because they are unable to show that the fees charged are
arbitrary or to show that the fees caused a delay in release.
Thus, whether any charges had been dropped is immaterial. Third,
arrestees argue that dismissing the City of New Orleans was
improper. Whether or not the City of New Orleans should be a
defendant, however, depends on the merits of arrestees’ claims.
As a result, this issue does not warrant discussion unless the
bail-fee statutes are held to be unconstitutional.
      17
           45 F.3d 885 (5th Cir. 1995).
      18
           Id. at 889.

                                       8
support the bail-bond system.19                  As the statutes charge only

administrative fees to defray the costs of the bail-bond system,

continue the sheriffs, such fees do not impermissibly impose court

costs; and for the same reason, such fees cannot violate the

excessive fines clause of the Eighth Amendment.                       Finally, the

sheriffs deny that (1) the statutes create any temptation to stack

charges, (2) such laws are unconstitutionally vague, or (3) they

effect a Fourth Amendment violation.

                                    II. ANALYSIS

     Louisiana’s bail-fee statutes do not fit snugly into any

established area of constitutional jurisprudence.                   This is quite

plausibly the reason why arrestees fired such a broadside of

constitutional claims at the sheriffs.               As this is the third time

these types of statutes have been challenged in this Circuit, and

as the results of the previous efforts are in tension with each

other, we shall address each of arrestees claims.                  Even though, in

addition to the three laws at issue here, Louisiana’s statutory

framework     provides     multiple       methods   of   funding    its   bail-bond

system,     relevant      Supreme       Court   precedent   characterizing     such

charges as reasonable administrative fees requires us to affirm the

district court on all matters, as we shall demonstrate.

A.   STANDARD OF REVIEW

     We     review   de    novo     a    district   court’s   grant    of   summary


     19
          404 U.S. 357 (1971).

                                            9
judgment.20     Summary judgment is only appropriate if the pleadings

and the additional evidence presented show that there is no genuine

issue as to a material fact, such that the moving party is entitled

to a judgment as a matter of law.21      A dispute about a material fact

is ‘genuine’ if there is enough evidence for a reasonable jury to

return a verdict in favor of the non-moving party.22           Like the

district court, when deciding upon a motion for summary judgment,

we review all factual questions in the light most favorable to the

nonmovant.23     We also review de novo all questions of law.24

B.   EIGHTH AMENDMENT EXCESSIVE BAIL

     Arrestees only assert in passing that the bail-fee statutes

amount to “excessive bail”.         It is nevertheless worthwhile to

explain the inapplicability of the Eighth Amendment’s Excessive

Bail Clause to better frame these statutes under a more general

due-process analysis.

     The Supreme Court has not frequently considered the contours

of the Eighth Amendment’s proscription of excessive bail. In fact,

its application to the States has occurred only indirectly.25        The


     20
          Stults v. Conoco, Inc. 76 F.3d 651, 654 (5th Cir. 1996).
     21
          Fed. R. Civ. P. 56(c).
     22
          Stults, 76 F.3d at 654.
     23
          Id.
     24
          Id. at 655.
     25
      Schilb v. Kuebel, 404 U.S. 357, 365 (1971) (finding that
“the Eighth Amendment’s proscription of excessive bail has been

                                    10
Court     has   explained,         nonetheless,   that    a   prohibition       against

excessive       bail     exists      even    though      there    is    no     absolute

constitutional right to bail.                In Stack v. Boyle, the Court held

that “[b]ail set at a figure higher than an amount reasonably

calculated       [to    ensure      the   defendant’s    presence      at    trial]   is

‘excessive’          under   the    Eighth    Amendment.”26      In    applying    this

standard,       we    have   found    that   requiring     $750,000     bail    from a

defendant deemed to be a flight risk is not excessive even though

the defendant is unable to pay the bail.27

     More recently, in United States v. Salerno, the Supreme Court

acknowledged that, in addition to the authority to detain for

flight risk, the government may pursue “other admittedly compelling

interests through regulation of pretrial release.”28                          The only

potential substantive limitation on the ability of the government

to restrict bail, the Court concluded, is that “the Government’s

proposed conditions of release or detention not be ‘excessive’ in

light of the perceived evil.”29


assumed to have application to the States through the Fourteenth
Amendment”) (citations omitted); Baker v. McCollan, 443 U.S. 137,
145 n.3 (1979).
     26
          342 U.S. 1, 5 (1951).
     27
          United States v. McConnell, 842 F.2d 105, 107-08 (5th Cir.
1988).
     28
          481 U.S. 739, 753-54 (1987).
     29
      Id. at 754. The Court explained further that the
excessiveness of the government’s action is determined as well by
“the interest the Government seeks to protect by means of [its

                                             11
      The above-cited cases address whether the government can deny

bail altogether, or set it at a very high amount, for the reasons

it proffers.      In contrast, this case concerns neither the State’s

attempt to deny bail nor an extremely high bail amount.                 Rather, it

concerns relatively modest fees imposed, over and above the amount

of bail, on all arrestees who exercise bail.                Clearly, the sheriffs

are not advancing the compelling interests recognized by the Court

in the cases mentioned above.           Rather, they reiterate that the fee

statutes are administrative charges imposed to cover costs of the

bail-bond system. The sheriffs argue additionally that the fees at

issue here are part of a more comprehensive statutory scheme that

imposes fees for other actions taken by parish sheriffs in the

criminal adjudication process.30

      It is also clear that the restriction alleged in this case

does not implicate the kind of excessiveness of past decisions.

Rather, the charges are nominal, nondiscretionary, statutory fees

imposed on all arrestees.          Indeed, the deprivation arrestees claim

here is more theoretical than actual.                They have offered no hard

evidence that any arrestee who was otherwise able to make bail was

ever kept in jail because he or she did not, or could not, pay the

de minimis administrative fee.           Presumably, if an arrestee is able

to   secure     bail,   he   or   she   would   be   able    to   pay   the   modest



restriction].”      Id.
      30
           La. Rev. Stat. Ann. 33:1432.

                                         12
administrative fee required to exercise that right.     And, even if

an arrestee were to remain in jail, it is still not clear that an

additional fifteen dollars would constitute excessive bail under

the Eighth Amendment.    As a result, the interests at stake for both

the government and the individual are not easily taken account of

by the Salerno test.31

     In sum, extant excessive-bail jurisprudence does not transfer

well to this issue.   Salerno and previous cases have indicated that

the government must put forth a compelling interest to restrict or

deny bail.   Here, there is neither a compelling purpose nor a

restriction on bail analogous to past instances.     Rather there is

a largely theoretical, and effectively minimal, constraint on an

individual’s substantial liberty interest in release.32   Nothing in

     31
      An analysis of these facts in excessive bail terms would
result in an awkward application of the Salerno standard. The
“perceived evil” would be the lack of funding for the bail-bond
system rather than the flight risk, or danger to the community,
of an arrestee. Likewise, the restrictions on release are small
fees required to exercise bail instead of a large amount of
money, which effectively would prohibit release on bail. Even
though the “evil” does not amount to the compelling interest the
government has in preventing flight, the restraint imposed also
pales in comparison to high bail amounts.
     32
      The “excessive bail” jurisprudence does illustrate the
substantial interest an individual has in pretrial release from
jail. The Salerno court reiterated that “[i]n our society
liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception.” Salerno, 481 U.S. at
755. We have also recognized that interest, stating that “[d]ue
to weighty liberty interests, the typical pretrial detainee is
rarely detained prior to trial.” Hamilton v. Lyons, 74 F.3d 99,
105 (5th Cir. 1996). Thus, the need for a compelling purpose to
restrict such release implies that an individual maintains a
strong liberty interest.

                                  13
these cases has suggested that a theoretically minor restriction

imposed for less than a compelling purpose, constitutes “excessive”

bail.

C.   EIGHTH AMENDMENT EXCESSIVE FINES

     There are two reasons why arrestees’ excessive-fines challenge

fails here.      First, the Supreme Court has never directly applied

the Excessive Fines Clause of the Eighth Amendment to the several

states.      Although scholars have suggested,33 and Justice O’Connor

has argued,34 that this clause applies to the states, to date no

such attribution has occurred.      Second, even assuming that this

clause does apply to the states, the Court has concluded, and the

district court here recognized, that “the State does not acquire

the power to punish with which the Eighth Amendment is concerned

until after it has secured a formal adjudication of guilt in

accordance with due process of law.”35     Therefore, allegations of

punishment before adjudication of guilt must be addressed under the



     33
      2 Ronald D. Rotunda & John E. Nowak, Treatise on
Constitutional Law: Substance and Procedure, §15.6, at 622 (1999)
(arguing for the incorporation of this clause “because it is
intertwined with the other two clauses of the Eighth Amendment
and the Supreme Court has already regulated the imposition of
fines on indigents through the equal protection clause of the
Fourteenth Amendment”).
     34
      See Browning-Ferris Industries of Vermont, Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 284 (1989) (O’Connor, J. concurring
in part, dissenting in part) (urging that the ‘excessive fines’
clause should apply to the states).
     35
          Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977).

                                   14
Due Process Clause of the Fourteenth Amendment.36

     The Excessive Fines Clause of the Eighth Amendment, like the

Cruel and Unusual Punishment Clause, is applicable only if the

statutory fees at issue constitute punishment.37           But because the

bail-fee statutes impose a charge prior to the adjudication of

guilt, the Excessive Fines Clause, even if it did apply to the

states, would not be the appropriate provision under which to test

these statutes.       As a result, we must assess the capacity of the

bail-fee statutes to constitute punishment through the lens of the

Due Process Clause.

D.   DUE PROCESS —— BAIL FEES AS PUNISHMENT

     As neither the Excessive Bail Clause nor the Excessive Fines

Clause of the Eighth Amendment is applicable to the bail-fee

statutes challenged here, we must address the arrestees’ more

amorphous       contention   that   the   bail-fee   statutes   violate   the

fundamental right of bail-eligible arrestees to exercise bail

without any additional financial impediment.             Before addressing

this due process contention directly, however, we must explain and

     36
          Id.
     37
      The Court has found that the Excessive Fines Clause
“limits the government’s power to extract payments, whether in
cash or in kind, as punishment for some offense.” Austin v.
United States, 509 U.S. 602, 609-10 (1993)(internal quotation
marks omitted) (emphasis in original). Thus, whether the clause
applies depends on whether it is possible to describe the fees
imposed as punishment. See United States v. Bajakajian, 524 U.S.
321, 328 (1998) (finding that forfeitures are fines “if they
constitute punishment for an offense”).


                                      15
distinguish three other cases relevant to this analysis on which

the parties rely.

     In Schilb v. Kuebel, the Court addressed a provision with

effects remarkably similar to Louisiana’s bail-fee statutes.38

Illinois had instituted bail reform to enable arrestees to avoid

the usurious fees of professional bail bondsmen.                          As part of this

reform program, arrestees had the option of paying the court a

deposit equal to 10% of their bail amount and thus obtaining

release.       Later,     when     they     appeared     at   their       hearings,   such

arrestees were refunded all but 10% (1% of the total bail amount)

of the deposit, which the court retained as an administrative fee.39

     The     Court   in     Schilb     addressed       only    an    equal    protection

challenge and an argument that the fees constituted imposition of

court costs prior to conviction.                  In rejecting both claims, the

Court     started    from    the    premise       that   this       charge    “smacks    of

administrative       detail      and   of    procedure        and    is    hardly   to   be

classified as a ‘fundamental’ right or as based upon any suspect

criterion.”40        The Court then analyzed, under the appropriate

rational-basis standard, the fee retention in relation to the

ability of arrestees to put up the entire amount of bail and

thereby avoid fees entirely.                 Charging this fee to only those



     38
          404 U.S. 357 (1971).
     39
          Id. at 359-61.
     40
          Id. at 365.

                                             16
arrestees who elected to deposit an amount equal to 10% of their

bail, reasoned the Court, was rationally related to the State’s

interest in defraying expenses that are associated with bail-

jumping.41

     The Court also distinguished this Illinois bail-fee statute

from the one considered in Giaccio v. Pennsylvania, wherein the

Court struck down a state law that allowed a jury to impose all

court costs on a defendant even though it had acquitted him.42          The

Schilb     court   reiterated   that    the   Illinois   charge   was   “an

administrative cost imposed upon all those, guilty and innocent

alike” who avail themselves of its benefit, which was distinct from

the “imposition of costs of prosecution upon an acquitted or

discharged criminal defendant,” illegal under Illinois law.43

     Here, arrestees attempt to distinguish Schilb by highlighting

the fact that the statute there at issue was part of a legislative

movement to reform the Illinois bail-bond system and was but one

option from which arrestees could choose.44        Louisiana’s statutory


     41
      Id. at 367-68. When the state takes only 10% instead of
the entire 100% of the bail amount, it has less security in the
event of bail-jumping. It also may be more likely that bail-
jumping would occur under the deposit plan because the arrested
individuals would forfeit less financially if they failed to
appear in court.
     42
          382 U.S. 399, 403 (1966).
     43
          Schilb, 404 U.S. at 370-71.
     44
      Based on Augustus v. Roemer, 771 F. Supp. 1458 (E.D. La.
1991), arrestees argue that Schilb outlined a three factor test
for such bail statutes: they must 1) create a voluntary option,

                                       17
scheme, by contrast, is not as reform-minded as the Illinois

program.      The ability to distinguish Schilb from the instant case

on the extent to which the fees charged go toward a program

designed to benefit arrestees by reducing reliance on bail bondsmen

is   inconsequential,     however,    because    the    Louisiana   bail-fee

statutes involve no classification.           The fee provisions at issue

here apply to all arrestees, regardless of whether they enlist the

services of a bail bondsmen or use their own funds to pay bail.

Thus, the fact that the Louisiana statutes fail to classify dooms

arrestees’      equal   protection   claims     and    prevents   them   from

positively distinguishing their challenge from the facts of Schilb,

at least on equal protection grounds.45

      In addition to the Schilb court’s view that bail fees are at

most administrative charges, which fail to invoke any fundamental

right, the sheriffs argue that Enlow v. Tishomingo County, in which

we upheld a statute similar to those at issue in this case, should

govern our conclusion here.46        At issue in Enlow was a Mississippi

statute that imposed on every arrestee exercising his bail option




2) be intended to reform the bail system, and 3) confer a benefit
on arrestees.
      45
      As we will explain, the differences between reform-
oriented bail programs and Louisiana’s scheme are likewise
immaterial under the relaxed reasonableness standard that applies
to due process challenges.
      46
           45 F.3d 885, 889 (5th Cir. 1995).

                                     18
a fee equal to the greater of $20 or 2% of the value of the bond.47

The Enlow district court considered whether that statute violated

procedural       due       process   standards      by   imposing   a   fee   prior    to

adjudication of guilt.48             Applying Mathews v. Eldridge,49 the trial

court stated that payment of a bond fee did not amount to a

heightened level of private interest.50                  It reasoned that requiring

a bond fee was legally indistinguishable from the accepted practice

of   requiring         a    detainee    to   post   bond   as   a   prerequisite      for

release.51       The district court in Enlow also noted that sufficient

standards        and       procedures   existed     to   facilitate     refunds   after

acquittal.52 Finally, in addressing the government’s administrative

interests, the district court relied on Schilb’s conclusion that

not all administrative fees are unconstitutional.53

      We affirmed the Enlow trial court’s holding and reasoning on




      47
      Enlow v. Tishomingo County, Civ.A.No. EC 89-61-D-D, 1990
WL 366913, at *2 (N.D. Miss. Nov. 27, 1990).
      48
           Id. at *5-6.
      49
           424 U.S. 319 (1976).
      50
           Enlow, 1990 WL 366913, at *5.
      51
      Id. (citing Gladden v. Roach, 864 F.2d 1196, 1200 (5th Cir.
1989) (upholding the ability to impose bail for a non-jailable
offense because the gravity of the offense does not alter the
purpose of bail to make sure defendants appear at trial)).
      52
           Enlow, 1990 WL 366913, at *6.
      53
           Id.

                                              19
appeal.54         After reviewing the briefs and record, we concluded that

“the        district       court’s     opinion     regarding      the      arrestees’

constitutional challenges to the statutes is well reasoned and

correctly          decided.”55       Despite     the   absence     of     substantive

discussion, our affirmation of the district court’s holding governs

procedural due process challenges to similar bail-fee statutes,

unless they can be factually distinguished.

       The only differences between the Mississippi statutes at issue

in Enlow and Louisiana’s bail-fee statutes that we consider today

are Mississippi’s use of a percentage fee rather than a flat fee,

and its           statute’s   provision   for    the   State    Auditor    of   Public

Accounts to promulgate regulations outlining a refund procedure,56

in contrast to the Louisiana statutes, which are more ambiguous in

their provisions for refunds.                 The first difference at best is

immaterial to a procedural due process analysis, because the

quantum of           the   Louisiana   fees    imposed,   and    thus   the     private

interest affected, is almost always going to be less than the

quantum of those imposed under the Mississippi scheme.                     The second

difference has an effect, if any, only when assessing the risk of

error in existing procedures.

       Given Enlow’s conclusions that the private interests at stake

       54
            Enlow, 45 F.3d at 889.
       55
            Id.
       56
      Miss. Code Ann. § 99-1-19(5), (6) (1990) (repealed by Act
of March 12, 1990, Ch. 329, § 12, eff. October 1, 1990).

                                           20
are not great, that Schilb specifically rejected a fundamental

rights implication of such fees, and that arrestees have failed to

demonstrate any actual deprivation, we too conclude that the

Louisiana fees do not trigger any heightened level of private

interest.       Although the liberty interest of an arrestee in release

from jail may well be significant, any deprivation attributable to

these       administrative    fees      is    minimal,   if   not   non-existent.

Arrestees have introduced no evidence to suggest that any arrestee

has ever been detained because of an inability to pay the bail fee.

Arrestees have also failed to articulate a clear argument that

these fees constitute a deprivation of a property interest without

due process of law.57

       The second factor is the so-called risk of error. In Mathews,

the Court explained this factor as “the fairness and reliability of

the existing pretermination procedures, and the probable value, if

any, of additional procedural safeguards.”58                  The district court

here    found     a   low   risk   of   erroneous    deprivation     because   the

assessment of fees simply was based on the number of charges on

       57
      A recent district court case from Southern District of
Ohio struck down a statute on procedural due process grounds
that imposed a flat thirty dollar book-in fee to cover the
administrative costs of confinement of pretrial detainees. Allen
v. Leis, 213 F. Supp 2d 819, 831-34 (S.D. Ohio 2002). In
conducting a Mathews analysis, the court held that this
deprivation of property, like most, required notice and a
hearing. Id. at 833-34. Here, however, Enlow has already
concluded that the private interest is insignificant, and
arrestees failed to pursue this line of argument.
       58
            424 U.S. 319, 343 (1976).

                                             21
which an individual is arrested.59        The procedures for assessing

fees are indeed unambiguous; it is not clear, however, that this

completes the inquiry. This factor asks not only whether the state

will determine the correct amount of deprivation, but also whether

it will deprive the right individuals under the current procedures.

     In Enlow, the district court concluded that the Mississippi

statute contained sufficient procedures and standards to facilitate

refunds to acquitted individuals.          In contrast, the Louisiana

statutes as they now stand, impose a fee on every individual

arrested.   Thus,   the   risk   is     fairly   high   that   persons    not

ultimately found guilty will have paid this fee.               According to

Enlow, however, an adequate refund procedure would substantially

minimize the risk of this kind of error. Louisiana’s multi-sheriff

statute provides for a “waiver” of the bail fee by a judge if an

arrestee is acquitted or the charges dismissed. The Orleans parish

sheriff statute states that a judge may “suspend” this fee, but it

does not explain the grounds on which suspension is appropriate.

The Orleans clerk statue contains no procedure for obtaining a

refund on acquittal or dismissal of charges.

     Arrestees   argue    that   the    waiver    language     provides   an

insufficient procedure for obtaining a refund.                 Although the

Louisiana multi-sheriff statute appears to provide less detail on


     59
      Broussard v. Parish of Orleans, No. CIV.A..00-2318,
CIV.A.00-3055, CIV.A.00-2056, CIV.A.00-3057, 2001 WL 1335289, at
*8 (E.D. La. Oct. 29, 2001).

                                   22
refund procedures than does the Mississippi statute, this does not

mean that it is wholly inadequate.        The record indicates that in at

least three parishes, refunds were made on request and that none

were denied.      Vernon Parish, for instance, which appears to have

collected more bail fees than any other single parish, provided

refunds for all thirty-seven requests made.           This kind of evidence

supports a conclusion that the multi-sheriff statute is capable of

adequately providing a refund.

     The arrestees also invoke the St. Charles Parish policy of

making booking fees nonrefundable as evidence that the statutory

waiver language is inadequate.           The St. Charles Parish policy,

however, is      expressly   provided    for   in   Article   324(3)   of   the

Louisiana Code of Criminal Procedure.60         This provision authorizes

St. Charles Parish to collect a deposit calculated as a percentage

of the bail amount but to charge a fee no greater than fifteen

dollars for processing a bond, which is the amount that the sheriff

actually charged.      As such, the procedure resembles the remedial

program scrutinized in Schilb. We conclude that the possibility of

a refund under the multi-sheriff statute sufficiently mitigates any

error that might occur beforehand in charging the fee.

     The likelihood of refunds under the Orleans Sheriff and

Orleans Clerk statutes is not as certain.              The Orleans Sheriff

statute only provides that a judge may suspend the fee requirement.


     60
          La. Code. Crim. Proc. Ann. art. 324(A)(3) (2002).

                                    23
This language suggests that there is some process before a fee is

assessed, or at least some opportunity to request that a judge

suspend the fee.      The clerk statute provides for no suspension or

waiver of this fee, but it imposes a fee of only five dollars, the

least among the bail-fee statutes.

     Finally, weighed against the deprivation and the risk of error

is the administrative burden resulting from additional procedural

requirements and the government’s interests in conserving scarce

resources.61    This case deals with the imposition of nominal fees,

and the government has an interest in continuing to assess such

fees to support its bail-bond system.                Greater process could

ultimately reduce funding of the bail-bond system by increasing

administrative costs and decreasing government revenue from such

fees,     because   more   acquitted   arrestees     are   likely   to   obtain

refunds.62      Insufficient    funding     could   detrimentally    affect   a

sheriff’s ability to supervise release on bail, which in turn could

mean that fewer individuals actually secure release or that those

released find it easier to jump bail.          Thus, the government has an

interest in the extant procedures to hold down costs and fund a


     61
          Mathews, 424 U.S. at 347-48.
     62
      It would appear that the only effective procedures that
would reduce deprivation and error would be the criminal
adjudication itself or adequate refund procedures after
acquittal. The former would not likely involve any additional
procedures, but would delay the assessment of bail fees. The
latter would allow bail fees to be assessed immediately, but
might require more process later to dispense refunds.

                                       24
sheriff’s office’s bail-bond system.     The de minimis level of the

private   interest,   moreover,     indicates   that   the   government

administrative interest need not be great.

     When we balance the Mathews factors, we conclude that none of

the bail-fee statutes violates procedural due process standards.

Although some risk of error exists for fees imposed under the

Orleans Sheriff statute and the Orleans Clerk statute, the private

interest at stake for all three statutes is minimal, as Enlow

instructs, and the government interests in funding the bail-bond

system and maintaining cost-effective procedures outweigh any error

that may result from inadequate refund procedures.            Schilb’s

characterization of such charges as administrative fees lying

beyond the threat of heightened constitutional scrutiny again

influences our conclusion.        It shows us that the government’s

administrative interest is reasonable and private deprivation so

minimal that the risk of acquitted individuals paying the bail fee

is an error without constitutional significance, akin to danum

absque injuria.

     Having found arrestees’ equal protection and procedural due

process claims to be unavailing, we turn to their substantive due

process challenge. In contrast to the sheriffs’ reliance on Enlow,

arrestees ground their substantive due process argument on Augustus

v. Roemer, a 1991 federal district court case that addressed

another Louisiana statute, which imposed a charge on bail bondsmen



                                   25
equal to the greater of $20.00 or 2% of the amount of the bond.63

In striking down these provisions, the trial court determined that

access to the bail system, once an arrestee was found eligible,

constituted a fundamental right that could not be constricted

absent a compelling governmental purpose.64           The district court was

not persuaded that raising revenue to run the criminal justice

system     and   to   handle   the   administration    of   bond   forfeitures

constituted compelling interests.65         The court distinguished Schilb

on the same grounds that arrestees rely on here:             (1) The program

was voluntary; (2) it had a narrowly tailored statutory purpose;

and (3) it offered a benefit given in exchange for the fee.66

     The district court’s fundamental rights analysis in Roemer

crumbles, however, under the weight of Schilb and other related

Supreme Court precedent which indicate that these fees do not

implicate fundamental rights and thus need only be reasonable.67


     63
      771 F. Supp. 1458, 1460-62 (E.D. La. 1991). In 1993, the
Louisiana legislature repealed the statutes at issue in this
case, but simultaneously enacted 22 L.S.A. R.S. §1065.1, which
imposes an identical 2% fee state-wide. See La. Acts 1993, No.
834, §§5, 6, eff. June 22, 1993.
     64
          Augustus,771 F. Supp. at 1467-68.
     65
          Id. at 1468.
     66
          Id. at 1470-71 & n.24.
     67
      Arrestees also attempt to analogize the bail-fee statutes
to the poll tax on voting that the Supreme Court struck down in
Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966).
Harper, however, addressed the long-recognized fundamental right
of voting, which the Court considered “preservative of other
basic civil and political rights.” See id. at 667 (quoting

                                       26
In Bell v. Wolfish, the Supreme Court addressed a substantive due

process challenge to a condition of confinement of a pretrial

detainee.68       Although Bell addressed specific conditions of the

confinement itself rather than potential barriers to release, its

approach is instructive to our analysis of the arrestee’s due

process challenge to the Louisiana bail-fee statutes.                   The Court

first rejected the lower court’s conclusion that the “presumption

of   innocence”        creates   a    fundamental     right   to   be   free   from

conditions       of    confinement,    absent   the   government’s      compelling

necessity.69          The Due Process Clause, it reasoned, provides “no

basis      for   application     of   a   compelling-necessity      standard    to

conditions of pretrial confinement that are not alleged to infringe

any other, more specific guarantee of the Constitution.”70


Reynolds v. Sims, 377 U.S. 533, 561-62 (1964)). This case
addresses a fee imposed upon arrestees which neither the Supreme
Court nor we have found invokes a fundamental right. Instead, as
we explain here, this type of charge requires only a reasonable
relationship to a legitimate government purpose.
      68
           441 U.S. 520 (1979).
      69
      Id. at 532. We have recognized the subsequent limits
placed on Bell by the Supreme Court with regard to the level of
culpability required to find a due process violation. See Ortega
v. Rowe, 796 F.2d 765, 767-68 (5th Cir. 1986) (recognizing the
Supreme Court opinions post-Bell that found negligent behavior
insufficient to trigger due process protection, and as a result
requiring intentional or knowing action to conduct a Bell
analysis). These limits, however, are not relevant in this case
because the mental state of the sheriffs is not in question.
      70
      Bell, 441 U.S. at 533. As we explained supra, neither the
Excessive Fines Clause, nor the Excessive Bail Clause, nor any
other specific constitutional provision is applicable to the bail
fee statutes.

                                          27
     Rather, the Court concluded in Bell that when the right being

challenged        is   not   one   that    is   expressly    guaranteed   in    the

Constitution, the issue merely concerns “the detainee’s right to be

free from punishment,” which “does not warrant adoption of [a]

compelling-necessity test.”71             Using factors laid out in Kennedy v.

Mendoza-Martinez, the Court ruled that if there is no express

showing of an intent to punish, and “a particular condition or

restriction of pretrial detention is reasonably related to a

legitimate governmental objective, it does not, without more,

amount to ‘punishment.’”72 On the other hand, if there is no

reasonable relationship between the restriction and a legitimate

interest, such that the restraint is “arbitrary or purposeless ——

a court permissibly may infer that the purpose of the governmental

action is punishment....”73           Addressing the condition at issue in

Bell —— the practice of double-bunking at a pretrial detention

facility     ——    the   Court     concluded    that   the   condition    did   not

constitute punishment because the practice was instituted for the

purpose of dealing with increased numbers of detainees and the

burden on the detainees was minor.74

     Bell may not be directly applicable to this case, because the


     71
          Id. at 534.
     72
      Id. at 538-39 (citing Kennedy v. Mendoza-Martinez, 372
U.S. 144 (1963)).
     73
          Bell, 441 U.S. at 539.
     74
          See id. at 525-26, 540-43.

                                           28
bail-fee statutes might not constitute a condition or restriction

on confinement as envisioned by Bell and subsequent cases.                      Bell,

for instance, addressed the double-bunking of prisoners; and we

subsequently     addressed    denials        of   such     items   as   visitation,

telephone access, recreation, mail, legal materials, and showers

for a three-day period.75            Other circuits applying Bell have

addressed such conditions as placement in solitary confinement

after attacking another inmate,76 administrative lockdown,77 and

administrative segregation.78         In short, these cases deal with more

restrictive confinement without release, not an added financial

burden to already-sanctioned release.

     Nevertheless, Bell’s analytical framework, in addition to

Schilb’s conclusion that such fees appear to be administrative, is

helpful in      resolving    this    case.        Schilb    instructs    that    this

category of fees fails to infringe any fundamental rights;                      Bell,

in turn, articulates a test that enables us to determine whether

such charges are reasonable administrative fees or impermissible

arbitrary      punishment.          Thus,     the    inquiry       reduces      to   a


     75
      Hamilton v. Lyons, 74 F.3d 99, 106-07 (5th Cir. 1996).
The court’s application of Bell in this case was slightly
different because the plaintiff was a detained parolee instead of
the average pretrial detainee. Id. at 104. That distinction,
however, does not affect the type of confinement restriction
subject to the Bell standard.
     76
          Rapier v. Harris, 172 F.3d 999, 1001-02 (7th Cir. 1999).
     77
          O’Connor v. Huard, 117 F.3d 12, 15-16 (1st Cir. 1997).
     78
          Stevens v. McHan, 3 F.3d 1204, 1205-06 (8th Cir. 1993).

                                        29
reasonableness analysis.

     Reasonableness depends on both the nature of the government

interest itself and the extent to which the statutes at issue

supports that purpose. Section 1432(9), the multi-sheriff statute,

imposes a fifteen dollar fine for “taking [an] appearance bond.”

The other two statutes impose fees for similar tasks.   The district

court indicated that these statues “are linked to a legitimate

government purpose of providing funds for the administration of the

bail-bond system....”79 In their appellate brief, the sheriffs cite

several provisions of the Louisiana Code of Criminal Procedure in

support of their contention that the bail-bond system is entirely

dependent on the services of the sheriff for its proper operation.

In particular, the sheriffs emphasize that Article 344 of the

Louisiana Code of Criminal Procedure requires the sheriff to serve

notice on a defendant and his surety of a required appearance in

court.80

     The connection between these fees and the bail-bond system in

particular is less than clear.      The sheriffs seem to use Article

344’s requirement that sheriffs give notice to arrestees to appear

in court to demonstrate the significance of sheriffs in bail-bond

matters. But even this requirement of sheriffs’ time appears to be



     79
      Broussard v. Parish of Orleans, No. CIV.A..00-2318,
CIV.A.00-3055, CIV.A.00-2056, CIV.A.00-3057, 2001 WL 1335289, at
*8 (E.D. La. Oct. 29, 2001).
     80
          La. Code Crim. Proc. Ann. art. 344 (2002).

                                   30
overstated.     Article 344 requires no additional notice when a bail

bond fixes the initial appearance date;81 it is only when the bond

does not fix such a date that additional notice required.82      Such

notice neither requires action by a sheriff nor personal service of

the notice.     Rather, it states simply that an officer of the court

may deliver notice, or it may be sent via first class mail. 83    In

short, the sheriffs appear to exaggerate both the amount of work

involved and the time and effort required of sheriffs in this

process.

     In addition, Louisiana already charges fees directly to bail

bondsmen.      Section 1065.1 of Title 22 of the Revised Statutes

charges a 2% fee on “all commercial surety underwriters who write

criminal bail bonds in the state of Louisiana.”84       This statute

specifies that 25% percent of the amount collected goes to the

“sheriff’s general fund” and that other amounts go to the judicial

court fund, the district attorney’s operating fund and the Indigent

Defenders program.       As a result, this provision seems to address

more directly the overall financing of the bail-bond system.       It

specifies distribution of funds not just to the sheriff, but also

to the other groups that participate in the bail-bond system.      In



     81
          Art. 344(A).
     82
          Art. 344(B).
     83
          Art. 344(B)(2).
     84
          La. Rev. Stat. Ann. § 22:1065.1 (2003).

                                    31
short, there are reasons to question the extent to which the bail-

fee statutes at issue support the bail-bond system.

     There are also reasons, however, that supply a rational

connection between these statutes and a legitimate government

purpose.      Despite the sheriffs’ failure to elaborate on their

contention, we can imagine that bail fees help offset the costs of

paperwork and subsequent time required of sheriffs or clerks to

keep track of those arrestees who are out on bail.         Arrestees have

presented no evidence to demonstrate that such fees are unnecessary

or to show that alone the funds received from the bail bondsmen tax

and from bond forfeitures are sufficient to support the bail-bond

system.

     Furthermore, the broader statutory scheme of which these

provisions     are   a   part   provides   additional   support   for   the

characterization of these bail fees as reasonable administrative

charges.      They are part of a comprehensive schedule of fees for

actions taken by a sheriff or clerk, including fees for serving a

subpoena duces tecum,85 for mileage when traveling outside the

Parish of Orleans,86 for executing warrants outside of the sheriff’s

parish,87 and for furnishing copies of indictments.88        Although the



     85
          La. Rev. Stat. Ann. § 33:1520(8) (2002).
     86
          § 33:1520(10).
     87
          La. Rev. Stat. Ann. § 33:1432(7) (2002).
     88
          La. Rev. Stat. Ann. § 13:1381(24) (1999).

                                     32
bail-fee provisions may be unique as the only provisions that

theoretically separate an arrestee from his or her release from

confinement, the amount of the fee does not appear to be unduly

burdensome.     As noted, the record is barren of evidence indicating

that a single arrestee had to remain in jail because he or she was

unable to pay the required fees, as distinguished from the bail

itself.

     Even though the connection between the bail fees charged and

the administration of the bail-bond system may be somewhat tenuous,

especially     when   compared   to   reform    schemes   in   other   states,

arrestees have failed to present evidence sufficient to show that

the fees imposed are arbitrary.            Thus, we must reject arrestees’

substantive due process challenge as well.89

E.   OTHER CONSTITUTIONAL CLAIMS

     1. Vagueness Challenge

     Arrestees contend that the bail-fee statutes are void on

vagueness grounds, relying on Giaccio v. Pennsylvania.90           Arrestees


     89
      Arrestees also rely on the ancient case of State ex rel.
Leche v. Waggner, 8 So. 209, 211 (La. 1890), which struck down a
statute almost identical to the Orleans Clerk statute. Although
to our knowledge no case has overruled Waggner, we discern two
reasons why its holding does not govern here. First, the Waggner
court failed to articulate the basis on which it found this
statute offensive, which makes it impossible for us to determine
whether it would even be persuasive precedent to our federal
constitutional analysis. Second, Schilb and Bell have been
decided subsequently by the United State Supreme Court, and quite
clearly characterize such charges as administrative fees, which
need only relate reasonably to a legitimate government interest.
     90
          382 U.S. 399 (1966).

                                      33
also attempt to use Giaccio to support their argument that the bail

fees constitute impermissible court costs.

     In Giaccio, the Supreme Court addressed a Pennsylvania law

allowing juries that had acquitted a defendant to determine whether

he should nevertheless pay all court costs of the prosecution.91

The Court struck down the law as vague because it gave juries

“broad     and   unlimited   power   in   imposing   costs   on   acquitted

defendants,” such that it allowed them to use “their own notions of

what the law should be instead of what it is.”92

     The bail fees charged here, in contrast, are not factually

akin to the costs of prosecution.         Although both situations might

involve fees charged to individuals who are ultimately acquitted,

the Giaccio court found particularly problematic the unfettered

power of jurors to impose their own view of the law in assessing

fees.     The Louisiana statutes here at issue are well-defined laws

which clearly outline the fees charged.         The fees themselves are

small, and no judicial or executive officers are empowered to

charge fees greater than those that are statutorily allowed.

     Neither are these fee statutes unconstitutionally vague.           In

Buckland v. Montgomery County, a case factually more similar to

ours than is Giaccio, the Third Circuit addressed a vagueness

challenge to a Pennsylvania program identical to the Illinois



     91
          Id. at 400.
     92
          Id. at 403.

                                     34
program considered in Schilb, except that the Pennsylvania statute

provided for retention of a “reasonable fee,” instead of a set 1%

of the total bail amount.93             The Buckland court rejected the

vagueness challenge, finding that fees were established in the

public record and were applied uniformly and with advance knowledge

to those using the court bail program.94         Further, the variation in

fees simply reflected the differing local conditions and expenses

of the different geographical areas in which they were imposed.95

Similarly, the fee amounts we consider today are stated clearly in

the public records.          Even though sheriffs may employ different

practices for assessing such fees, there is no evidence that any

sheriff has charged more than the statutorily allowed amount.

     2. Temptation to Stack Charges

     Arrestees also assert that these statutes tempt sheriffs to

stack charges against arrestees in violation of their due process

rights.         Arrestees rely on Ward v. Village of Monroeville96 and

Tumey v. Ohio97 to argue that these statutes give sheriffs the

partisan        incentive   to   make   unnecessary   charges   to    maintain

sufficient funding for their respective departments.                 Conceding



     93
          812 F.2d 146, 149 (3rd Cir. 1987).
     94
          Id.
     95
          Id.
     96
          409 U.S. 57, 59-60 (1972).
     97
          273 U.S. 510, 532 (1927).

                                        35
that    Ward     and   Tumey   applied    to    judges   and    focused    on    the

requirement that they remain impartial, arrestees nevertheless

insist that this standard should apply to the Louisiana sheriffs

and clerks as well, and attempt —— unsuccessfully —— to distinguish

our holding in Brown v. Edwards.98                In making their argument,

arrestees       seem   to   presuppose   that    the   fees    are   analogous    to

punishment or to a determination of guilt before trial.                    That is

the basis on which they argue that sheriffs impermissibly control

executive and judicial functions, in violation of due process.                    As

the preceding analysis has illustrated, however, imposing fees does

not constitute “punishment” under Bell; thus arrestees’ reliance on

Ward and Tumey is unavailing.

       The district court’s dismissal of this challenge is sound. It

correctly noted that Ward and Tumey are inapplicable to this case,

because the focus of those cases was on individuals who exercised

a judicial function.           “[T]he test is whether [the individual’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....’”99

       In Brown v. Edwards, we reiterated the significance of the


       98
            721 F.2d 1442 (5th Cir. 1984).
       99
      Ward, 409 U.S. at 59 (citing Tumey, 273 U.S. at 532)
(emphasis added).

                                         36
                                                                               100
function exercised in determining a violation of due process.

Rejecting        a   challenge   to   a   statute   that   enables    Mississippi

constables to collect ten dollars for each charge that results in

a conviction, we emphasized that “an arrest by a constable is not

judicial         action,   but   action    under    executive   or    legislative

authority.”101        We concluded, moreover, that peace offers are not

expected to exercise the same level of impartiality and neutrality

as judges and magistrates.102

     Brown is controlling here.                Neither the sheriffs nor the

clerks exercise, or are supposed to exercise, a judicial function.

Thus, like constables, they are not expected to maintain a level of

impartiality equal to that expected of judges.                  Consequently, a

decision to make multiple charges and impose concomitant fees would

not conflict, at least under relevant precedent, with any budgetary

control they might maintain.               As in Brown, arrestees have not

challenged the lawfulness of the original arrests.                   Assuming the

existence of valid probable cause, which arrestees give us no

reason to question, the sheriffs are simply carrying out their

statutory prerogative of assessing fees based on the charges


     100
           721 F.2d at 1451.
     101
           Id.
     102
       Id. Arrestees incorrectly argue that Brown stands for the
proposition that no temptation to stack charges exists when a
constable only received fees on successful charges and after
conviction. The Brown court, however, grounds much of its
holding in the fact that constables are not judges, nor do they
exercise a judicial function. Id.

                                          37
brought.

     3. Fourth Amendment Challenge

     Arrestees    finally    assert      that   being    charged     fees    in

conjunction with bail release constitutes an unreasonable seizure

of their person and property under the Fourth Amendment. They cite

no cases to support this proposition; instead, they would liken the

bail-fee requirement to the crimes of aggravated kidnapping and

extortion, which is obviously inapt.

     In rejecting this challenge, the district court relied on the

facts that arrestees neither challenged the validity of their

arrest and initial detainment, nor put forth any evidence that in

fact they were unreasonably detained as a result of the bail fee.103

We agree with the reasoning and holding of the district court on

this issue. As the arrestees do not challenge their initial arrest

and confinement, i.e. they do not allege that the sheriffs lacked

warrants   or   probable   cause,   and   as    there   is   no   evidence   of

unreasonable delay in release, there simply is no demonstration of

a Fourth Amendment problem.         Thus, there is neither legal nor

factual support for arrestees’ Fourth Amendment argument.

                            III. CONCLUSION

     We discern no merit in any of arrestees’ myriad arguments

attacking the constitutionality of the several Louisiana bail-fee



     103
       Broussard v. Parish of Orleans, No. CIV.A.00-2318,
CIV.A.00-3055, CIV.A.00-3056, CIV.A.00-3057, 2001 WL 1335289, at
*8 (E.D.La. Oct. 29, 2001).

                                    38
statutes here at issue.    Although the facts of this case differ

slightly from those addressed in Schilb and Bell, their holdings

nevertheless adequately frame our approach to this case.   As bail-

fee statutes, these provisions are relegated to the mundane realm

of administrative concern, never mounting the high pedestal of the

kind of scrutiny required for fundamental rights.     Furthermore,

even if these fees were to constitute restrictions on confinement,

they would only need to be reasonably related to a legitimate

government purpose. Even though the sheriffs’ reasons for charging

these fees are relatively weak, we nonetheless find that such fees

relate sufficiently to the bail-bond system to keep them from being

arbitrary.   Finally, arrestees have failed to adduce evidence that

any among them was actually detained for a longer period of time

because of such fees, or that such fees lack any reasonable

connection to administration of the bail-bond system, without which

all their claims must fail.   For the foregoing reasons, therefore,

the judgment of the district court is, in all respects,

AFFIRMED.




                                 39
