Criminal Justice

Bail schedules are unconstitutional and bad public policy, DOJ says

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The U.S. Department of Justice has filed an amicus brief condemning the use of financial bail.

According to the Christian Science Monitor, the U.S. Department of Justice filed an amicus brief last week in Walker v. City of Calhoun, Georgia, a challenge to that city’s use of financial bail. The plaintiffs in that case allege that Calhoun’s use of a bail schedule—a document that lists set financial amounts corresponding to offenses—violates the 14th Amendment due process and equal protection rights of those arrested.

Plaintiff Maurice Walker, represented by Equal Justice Under Law and the Southern Center for Human Rights, is a schizophrenic man in his mid-50s who was picked up for public drunkenness. He couldn’t afford $160 in bail; the complaint in the case (PDF) says he lives with his sister, who administers about $530 a month he gets in disability payments. Because he couldn’t afford bail, the lawsuit says, he was kept in Calhoun’s jail for six days. He could have been there for up to 11 days, the next time court was in session, but he was released shortly after the lawsuit was filed.

A Georgia federal judge certified the proposed class and granted a temporary injunction against the practice of jailing arrestees only because they can’t afford bail. The city of Calhoun appealed that to the Atlanta-based 11th U.S. Circuit Court of Appeals, where the DOJ filed its amicus brief last week.

That brief argues that the appeals court should uphold the district court’s ruling because a long line of U.S. Supreme Court cases says the 14th Amendment is violated whenever justice hinges on the defendant’s ability to pay. Bail systems administered without meaningful inquiry into a defendant’s individual circumstances are also bad public policy, the brief says, because they unnecessarily jail people who are legally presumed innocent, making it harder for them to mount an effective defense and straining local budgets.

The brief is not the first time the Department of Justice has taken a public stance on financial bail. In Varden v. City of Clanton, Alabama, a district court case also filed by Equal Justice Under Law, the DOJ filed a statement of interest that condemned the practice. In its report on Ferguson, Missouri police practices, the department has encouraged jurisdictions to stop using bail schedules; it also created a task force on bail, fine and fee practices. Attorney General Loretta Lynch has spoken publicly against bail practices that keep defendants in jail only because they can’t afford to pay for their freedom.

The DOJ’s brief came around the same time as an amicus brief from the American Bar Association, which also argued against bail schedules. The ABA’s brief argued that bail schedules don’t allow judges to consider individual factors, including dangerousness, making freedom available only to those who can afford it. It also noted that the ABA’s Criminal Justice Standards call on jurisdictions to use financial bail only when judges feel other means of getting a defendant back to court won’t be enough. The DOJ cited those standards in its brief.

See also:

ABA Journal: “Court systems rethink the use of financial bail, which some say penalizes the poor”

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