Why Did a Court Rule Cash Money Bail to Be Unconstitutional?

By Lisa M. Schaffer, Esq. on July 11, 2018 | Last updated on March 21, 2019

A federal appeals court in Philadelphia upheld a lower court's decision regarding "whether there is a federal constitutional right to deposit money or obtain a corporate surety bond to ensure a criminal defendant's future appearance in court as an equal alternative to non-monetary conditions of pretrial release. Our answer is no."

This may sound confusing. It may also sound like a bad thing. However, according to civil rights advocates, it's an important decision for those who may not have the finances to pay for bail with cash.

Having No Constitutional Right Is a Good Thing?

Normally, when a federal court says there is no constitutional right in a matter, the American Civil Liberties Union is up in arms, claiming individual's civil rights are being violated. Not this time. In this decision, the court stated that a person who has been accused of a crime can be allowed out on bail using nonmonetary conditions (such as electronically monitored home detention), in addition to being able to post a monetary bail.

This will protect those defendants with limited financial means. Many do not have the availability to post bail, or even to go to a Bail Bond company and put down a deposit for the bail. Rather, the only thing they can offer is nonmonetary payment in the form of lost freedom - or house arrest. This should be a fair trade-off to courts, since the purpose of putting up bail is to ensure that the defendant will arrive at court for their trial, and truly what better way to ensure that than an electronic monitoring device and house arrest.

In a press release, Alexander Shalom, senior supervising attorney of the ACLU of New Jersey, stated, "This important decision confirms what bipartisan lawmakers in New Jersey have known for years: there is no reason--legal or otherwise--why the thickness of anyone's wallet should dictate their liberty and freedom."

Good for the State and Defendants

This decision is a win-win for everyone. In a recent study commissioned by the state chief justice, the state of New Jersey found that dependence on money bail had led to the pretrial release of defendants who could afford to pay, even when they posed a flight risk or danger to the community.

Conversely, defendants who could not afford to pay posed a less serious flight risk and were accused of less serious crimes remained in jail. The result? Defendants of greater flight risk were out on bail, and potentially not returning for trial. Defendants of less flight risk were stuck in jail, on the government's expense. Allowing for nonmonetary bail will decrease costs on the jail system without sacrificing the safety of local citizens.

If you feel that you have been unjustly denied bail, contact a local civil rights attorney, who can review your case to see if there is a legal issue for appeal.

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