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The End of Money Bail?

By Christopher Coble, Esq. on July 07, 2016 | Last updated on March 21, 2019

Even if you've never been arrested, you've probably heard enough to know that the first thing you probably want to happen is to get bailed out. Bail is an exchange of money for a criminal defendant's freedom pending trial. The payment is designed to ensure a defendant's appearance at subsequent trial proceedings, and can either be a pre-determined amount based on the offense or vary depending on a defendant's criminal history or the circumstances of the case.

But a case coming out of Calhoun, Georgia may be calling the money bail practice into question. The city was jailing indigent defendants accused of misdemeanors and minor ordinance violations who couldn't raise enough money to pay bail, sometimes for as long as a week. After a federal judge ruled this violates a defendant's constitutional rights, the case is headed is headed for a federal circuit court of appeals, and possibly farther. Here's what that could mean for the money bail system.

Background on Bail

As a general rule, the court can order that a person accused of crime remain in custody until their guilt has been determined, but courts also have the option of releasing criminal defendants until the time of their trial. In order to make sure released defendants actually show up for their trials, courts set a bail amount, normally refundable at the trial's conclusion. Additionally, bail is not always required -- for misdemeanors or minor offenses, courts often release defendants on their own recognizance, without setting a money bond amount.

In order to curb abuse of the bail system, the Eighth Amendment prohibits "excessive bail." But what constitutes excessive?

Maurice Walker, Walking While Intoxicated

Maurice Walker, 54 years old and disabled, was arrested in Calhoun and charged with "pedestrian under the influence." Unable to pay the city's predetermined bail amount of $160, Walker languished in jail for six days until his pro bono attorneys filed a lawsuit on his behalf. In January, U.S. District Judge Harold Murphy ruled Calhoun's bail system violated the Constitution's equal protection clause and enjoined the city from continuing the practice.

"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." Calhoun appealed the ruling and now it is headed for the Eleventh Circuit Court of Appeals.

If Murphy's ruling is upheld, it could mean that courts must take a criminal defendant's ability to pay into account when setting bail, at least, and may call the entire money bail system into question. If indigent defendants can't be held solely because they cannot afford bail, then those that can afford it may not be required to pay either.

For now, however, bail remains a fact of life for criminal defendants. If you've been arrested and charged with a crime, you have options. Contact a criminal defense attorney in your area as soon as possible.

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