One Attorney's Fight to End Excessive Bail for the Poor

By Jonathan R. Tung, Esq. on October 29, 2015 | Last updated on March 21, 2019

The term 'justice is blind' is often more optimistic than realistic. Few people in the law would argue with that.

Mr. Alec Karakatsanis, an alum of Harvard Law, has been on a mission to reform bail practices in courts all around the country. So far, most of his work has been focused on the South, but his work has been receiving the praise and attention of legal scholars and jurists in other states outside of the region.

Equal Justice Under Law

Mr. Karakatsanis is a co-founder of Equal Justice Under Law (EJUW), a civil rights legal group that has taken on the responsibility fighting for criminal defendants who have not, in his view, enjoyed equal protection under the eyes of the law. He has represented many indigent criminal defendants who've been faced with bail amounts well beyond their ability to pay .

In one 2001 case, a court in Clanton, Alabama told Karakatsanis's later client that she had a choice: pay $2,000 or spend the night in jail. At the time, her only income was her food stamp allotment. When Karakatsanis got ahold of her case, he sued Clanton and declared that the city's bail policies discriminated against the poor by jailing them and allowing the rich to walk free. The city, without admitting fault, allowed the defendants to see a judge within 48 hours and later released most misdemeanor defendants. It was is the court did not want to spar the issue in court.

On a Warpath

EJUW's list of victories has been growing and all the defendants belong to the same socio-economic class: the poor. As a result of EJUW's work, at least five cities have changed their bail policies -- most of them southern states.

Excessive Bail?

EJUW's work revolves around a legal issue that has hitherto always avoided conclusiveness: What comprises excessive bail?

By Constitutional right, all persons are protected against cruel and unusual punishment as well from excessive bail. The usual practice by most courts is to hold that bail decisions must be made on a case-by-case basis and analyzed whilst taking the defendant's previous criminal history into consideration. However, no court has yet ruled (that we can find) that bail is "excessive" -- and therefore, unconstitutional -- simply because the defendant cannot afford the posted bail figure.

Equal Protection

In light of the courts' unwillingness to establish a bright-line rule on affordability of bail, Mr. Karakatsanis has argued that bail practices that jail the poor and let the wealthy walk free based on affordability actually violate equal protection because the law has effectively treated similarly situated persons differently.

His battle is uphill, however, because it's almost as if all courts have anticipated EJUW's equal protection argument. Written in the court procedures of every court you'll find language that the court will consider a person's finances when setting bail. And because of this language, even a prima facie equal protection violation is difficult to establish.

Policy and Culture Change

Civil Rights Groups have been successful in changing the outcomes for some, but few cases ever are ever litigated -- and this is troubling. Without court litigation, the legal issues fail to make precedent and therefore do not enjoy case law legitimacy. Fred Smith of Boalt Law School in Berkeley has noticed that there has been a culture change for federal judges to intervene more in state and local affairs in the issue of bail and sentencing. But even though, federal courts are highly deferential as to the substance of state law under Erie -- and thus real change is slow to arrive.

Thus, the real change is from a cultural standpoint, not a legislative one -- although the latter probably won't hurt.

In fact, federal judge Myron H. Thompson of Alabama's Middle District expressed his view in the Clanton case: "Justice that is blind to poverty and indiscriminately forces defendants to pay for their physical liberty is no justice at all."

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