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DOJ: Pre-Trial Bail System Is Unconstitutional

By Christopher Coble, Esq. on August 25, 2016 | Last updated on March 21, 2019

If you charge someone with a crime, you want to guarantee that they'll show up for trial and possible punishment. And the idea behind bail is that if a criminal defendant has a large amount of money on the line, he or she is more likely to appear. The accused (or a bail bondsman) puts up a percentage of the bail amount, and they get that money back when they appear for trial; skip town and you're on the hook for the full amount.

Which is all fine, in theory. But what if you can't afford the bail, or even the bail bondsman's percentage? Then you languish in jail until trial -- incarcerated even though you might be innocent. Critics of this system gained a new and perhaps unexpected ally last week: The U.S. Department of Justice. The DOJ filed a brief in a Georgia case, claiming that bail schedules that imprison poor people for not being able to afford bail are unconstitutional, and bad public policy to boot.

Impermissible Incarceration

We wrote about the case of Maurice Walker before. The 54-year-old disabled man was arrested for walking while intoxicated and spent six days in jail before pro bono attorneys sued for his release. In January, U.S. District Judge Harold Murphy found Calhoun's system of assigning bail without inquiring about the accused's ability to pay violated the Constitution's equal protection clause:

"Attempting to incarcerate or to continue incarceration of an individual because of the individual's inability to pay a fine or fee is impermissible," Murphy wrote. "That is especially true where the individual being detained is a pretrial detainee who has not yet been found guilty of a crime."

Murphy also prohibited Calhoun from jailing arrestees solely because they couldn't afford bail, and the city appealed the ruling to the 11th Circuit.

The Price of Freedom

The Department of Justice filed what is known as an amicus brief in the case, where a non-party to the litigation argues why the court should rule a certain way. The DOJ agreed with Judge Murphy, arguing that "a bail scheme that mandates payments of fixed amounts to obtain pretrial release, without meaningful consideration of an individual's indigence and alternative's that would serve the City's interests, violates the Fourteenth Amendment." The brief also references Supreme Court precedent stating that a defendant's civil rights are violated whenever justice hinges on his or her ability to pay.

Now it will be up to the 11th Circuit Court of Appeals to decide. Or, who knows, this could eventually end up at the Supreme Court. And the case of Maurice Walker could end up altering the system of money bail forever.

If you've had trouble paying bail, or believe your bail amount is unfair, you should contact an experienced criminal defense attorney immediately.

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