U.S. Supreme Court

ABA urges Supreme Court to review constitutionality of fixed-bail system

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The ABA has filed an amicus brief urging the U.S. Supreme Court to consider the constitutionality of money bail systems that don’t give adequate consideration to ability to pay.

The ABA filed the brief in the case of Maurice Walker, an unemployed man arrested in Calhoun, Georgia, on a charge of being a pedestrian under the influence of alcohol. His offense did not call for jail time, yet he was jailed for several days as he awaited a bail hearing. A press release is here.

The city then shortened its waiting period for a bail hearing to 48 hours or less, and the 11th U.S. Circuit Court of Appeals at Atlanta upheld the new system in August.

The city of Calhoun uses a uniform money bail schedule that doesn’t allow for consideration of individual circumstances until the bail hearing is held.

The ABA is urging the Supreme Court to grant certiorari and reverse the 11th Circuit.

The ABA argues that jailing defendants “solely because they cannot afford to purchase their freedom” violates the equal protection and due process clauses of the 14th Amendment.

“The imposition of preset bail amounts derived without regard to a defendant’s financial and other circumstances, even for a preliminary period of 48 hours, is an important issue worthy of this court’s consideration, given the practical and constitutional harms that this practice inflicts,” the ABA says.

“Because poverty strongly correlates with race, cash bail tends to result in the pretrial incarceration of racial minority groups, exacerbating pre-existing racial disparities in the criminal justice system,” the brief says.

The brief also cites harms to indigent defendants. Pretrial detainees may lose their jobs because they can’t go to work, while those who live in shelters could lose their housing for missed curfews or prolonged absences.

The brief cites the ABA’s Pretrial Release Standards, which state that pretrial release conditions should be used only to ensure a defendant’s appearance and to protect the public. Money bail should be a last resort, and bail decision should take into account the special circumstances of each defendant, the standards say.

The brief also refers to a resolution adopted by the ABA House of Delegates in 2017. The resolution urges governments to adopt policies that:

• Favor defendants’ release on their own recognizance or unsecured bond.

• Ban the use of bail that is based on the offense charged, without regard to a defendant’s personal circumstances.

• Allow defendants to be held without bail when it is warranted for public safety and no other pretrial release decisions would suffice.

The case is Walker v. City of Calhoun.

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