DOJ, ABA: Financial Bail System Is Unconstitutional, Bad Policy

DOJ, ABA: Financial Bail System Is Unconstitutional, Bad Policy

The U.S. Department of Justice (DOJ) and the American Bar Association (ABA) have each submitted amicus curiae “friend of court” briefs in a class-action lawsuit that attacks the bail system used by the city of Calhoun, Georgia.

The case of Walker v. City of Calhoun began on September 3, 2015, when Maurice Walker, an unemployed 54-year-old schizophrenic living on about $530 in monthly Social Security disability benefits, was arrested for public intoxication.

Because he was unable to raise the $160 bail called for under the city’s bail schedule – which prescribed set amounts of bail for traffic and misdemeanor offenses ranging from $90 to $1,000 for specific offenses — Walker faced the prospect of being jailed until his case could be heard in Calhoun Municipal Court.

The court met only on Mondays, so that would ordinarily mean spending six days in jail. But since the next Monday was Labor Day, and the court would be closed for the holiday, he faced nearly two weeks in jail because he could not afford the bail payment required for his release until trial. (The city did not allow the post-arrest release of defendants on their own recognizance or make individualized determinations of factors that would make it more likely or less likely a particular defendant would, in fact, appear for trial if released).

On September 8, however, two non-profit groups, Equal Justice Under Law and the Southern Center for Human Rights, went to federal court seeking Walker’s release (which shortly followed) and attacking the city’s bail schedule.

On behalf of Walker and other indigent defendants, the class-action lawsuit argued that the city’s insistence on bail payments and its refusal to consider whether other measures could give satisfactory assurance that defendants unable to post bail would show up for their court dates amounted to a denial of equal protection and thus violated their 14th Amendment due process rights.

After a federal judge in Georgia approved the proposed class and issued a temporary injunction against the city’s practice of jailing defendants who could not afford bail, the city filed an appeal with the 11th Circuit federal appellate court based in Atlanta.

The DOJ “friend of the court” brief filed there pointed to a line of earlier U.S. Supreme Court cases finding 14th Amendment violations for court requirements that harm indigents’ ability to defend themselves in court. For example, indigents can have counsel appointed for them and need not pay certain court costs, such as paying for the transcript of a trial they are appealing.

Beyond that, the DOJ brief also argued that financial bail schedules like Calhoun’s are bad public policy since jailing defendants (who are presumed to be innocent) solely because of their poverty can impose unnecessary costs on local government and hurts the indigent’s ability to prepare a defense. DOJ earlier took a similar stance in another case filed by Equal Justice Under Law, involving Canton, Alabama, and criticized bail schedules in its report on police practices in Ferguson, Missouri.

The ABA amicus brief made similar points and noted its Criminal Justice Standards recommend not using bail schedules unless local judges believe no other alternative will ensure a defendant will show up for trial.