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DOJ Says Poor Defendants Can’t Be Held If They Can’t Afford Bail

by Angela Bronner Helm, The Root
The Obama administration decrees that poor people deserve equal protection under the law, too.

The U.S. Justice Department said that holding defendants in jail because they can’t afford to make bail is unconstitutional—the first time the government has taken such a position before a federal appeals court, reports NBC News.

On Thursday, Loretta Lynch’s DOJ filed a friend of court (amicus) brief in federal court saying that mandating inmates pay bail to be released before a trial violates their civil rights guaranteed under the Fourteenth Amendment, which provides equal protection under the law.

The brief read in part: “Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment” and “result in the unnecessary incarceration of numerous individuals who are presumed innocent.”

NBC reports that the filing came in the case of Maurice Walker of Calhoun, Ga. He was kept in jail for six nights after police arrested him for being a pedestrian under the influence, a misdemeanor. Calhoun was told he could not get out of jail unless he paid the fixed bail amount of $160.

“Fixed bail schedules that allow for the pretrial release of only those who can play, without accounting for the ability to pay,” the government said, “unlawfully discriminate based on indigence.”

A federal judge in January ruled in Walker’s favor, ordering the city to let those arrested on misdemeanors be released on their own recognizance.

On appeal, the city of Calhoun said the preset amounts of the city’s bail schedule are tied to the seriousness of each offense and are specifically allowed under Georgia law; it also argues that “recognizance bonds greatly reduces the incentive for defendants to appear.”

Predictably, the city is supported by the Georgia Sheriff’s Association and by a group representing the nation’s bail bondsmen, who obviously have a financial interest in keeping the status quo. Their argument is that the Constitution does not guarantee bail, it only bans excessive bail.

Think Progress points out that this justice department is really being proactive in criminal justice reform, which disproportionately impacts people of color. Its comments to the court follow the ruling that the government will no longer do business with private prisons, due to their high rates of corruption and lack of safety.

by Mike Novack
And no, the ruling didn;t do away with bail in general.

"“Fixed bail schedules that allow for the pretrial release of only those who can play, without accounting for the ability to pay,” the government said, “unlawfully discriminate based on indigence.”
A federal judge in January ruled in Walker’s favor, ordering the city to let those arrested on misdemeanors be released on their own recognizance."

It was the FIXED part of this that was ruled unconstitional. And the argument from the other side missed the point about how "excessive" has come to be understood in terms of setting bail. It has come to be understood as "relative to a person's means". Bail is simply in order to ensure that the person will voluntarily reappear for trial. Especially for minor offenses where even if convicted, the penalty would be small, usually just "recog" (promise to show up). However various fctors can be considered (a history of NOT showing up, for example).

In serious cases where there is a real chance that that the person might attempt to flee the jurisdiction, you normally see bail amounts adjusted according to the person's means (like very high bail for a rich accused because what would be hard for you or I to scrape together pocket change to them).


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