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Bail out.

AROUND the country, we see stories highlighting the bail system as unfair because it creates two justice systems--one for those who have money and another for those who do not. Embracing that theory, the Justice Department launched a movement in 2015 to end the use of bail schedules by state and local governments. In the existing system, bail is pre-set based upon the alleged crime and the accused is released immediately without a court appearance if that individual posts bail. The Justice Department united with a nonprofit legal foundation called Equal Justice Under Law, which was founded expressly for the purpose of eliminating all monetary conditions of bail. Their efforts have resulted in a national movement that started in a Walmart parking lot and which ultimately may end up in the Supreme Court.

On Jan. 13, 2015, Christy Varden was arrested in Clanton, Ala., in front of a Walmart store, accused of shoplifting, resisting arrest, failure to obey a police officer, and possession of drug paraphernalia. The Equal Justice Under Law attorneys filed a Federal class action lawsuit against the city two days later, alleging that the bail system was unconstitutional because Varden could not afford her bail and because court is in session only on Tuesdays. She would have to wait to see a judge, who, at the time, could decide to reduce the bail amount or simply release her. On Feb. 13, then-Attorney General Eric Holder filed in the case a statement of interest on behalf of the Department of Justice. In a flash, a shoplifting charge in a small town went from a routine police matter to the beginnings of a national constitutional debate on bail.

In his statement, Holder argued that bond schedules, a list of crimes, and bail amounts for each crime used when court is not in session were incompatible with the equal protection clause because they create a two-tiered system of justice. In fact, many courts around the country do not use schedules--they set bail 24 hours a day. Yet, all that do, including Clanton, have an inherent time lag between when the schedule sets bail and when a judge reviews that bail if not posted. In most areas, the delay is a matter of hours or days. Without the schedules, every individual would be detained until court is in session for those locations where court is not held 24 hours a day. The question posed by Holder was this: under the equal protection clause, assuming that schedules discriminate based on wealth (rather than, say, based on alleged conduct), can plaintiffs show that the use of bail schedules lack a "rational basis" sufficient to invalidate them?

Before that question could be answered, the Clanton case settled, with the plaintiffs agreeing the use of monetary bail was, indeed, constitutional. The new bail schedule enacted as part of the settlement included presumptive secured bails. In fact, the order did not change the previous bail schedule, which had stated that, for all violations except DUI, bail "shall be set at $500." The settlement included language which stated that, if there was no previous warrant for failing to appear, then the bail became "unsecured," meaning that the person arrested did not need to post money or a bond upfront, but was indebted to the court if they failed to appear. Finally, the settlement rejected the Tuesday-only court, instead, requiring that all bail set by the schedule had to be reviewed within 48 hours.

Legal questions aside, The Wall Street Journal questioned the motives of Holder, noting that the act of an Attorney General filing a statement of interest in a shoplifting bail case in a town with a population of 8,700 was a "rare move." The settlement was touted as a major victory by the plaintiffs' lawyers, who pointed out that Clanton would be reforming its bail system and stop using secured money for new arrestees. The settlement, however, did not eliminate bail or bail schedules--it created a new schedule and determined that bail could not be posted upfront in some class of cases.

Because of the results of the Clanton case, the legal and political movement behind anti-money gained significant momentum. At the time, the group of Equal Justice Under Law attorneys told The New York Times that it was launching a "guerrilla campaign" against 15,000 smaller jurisdictions as the method to achieving their goal of "ending the American money bail system." The campaign launched in 2015, filing a flood of copycat suits, primarily in the South, including in Dothan, Ga.; Moss Point and Jackson, Miss.; Dodge City, Kan.; Ascension Parish, La.; and Velda City, Mo. All of the cases resulted in settlements similar to the one agreed upon in Clanton.

As the settlements were completed, there was one last case still pending in the little town of Calhoun, Ga., which refused to settle. That case concerned Maurice Walker, a 54-yearold man who was walking intoxicated on a city street at night. Walker was charged with public intoxication and his bail was set at $160. Normally, he would have had to wait six days for a review of his bail. However, during the pendency of the case, the city implemented a new bail policy, which included a necessity to review all bails within 48 hours.

U.S. District Court Judge Harold Murphy, in the first ruling on the Justice Department's equal protection theory, found in favor of the plaintiffs. Interestingly, the judge also considered the new 48-hour review order and held it unlawful because it considered "any period of detention" as unconstitutional. The practical impact of that meant the city would be liable for damages if, for example, one person posted a bail bond for one dollar and got out of jail even one second sooner than another who could not post his or her bail. Thus, all bails would have to be set, meaning that all individuals who post bail today--and get out of jail immediately--would have to wait to see a judge.

Upon receiving the order outlawing its bail practices, Calhoun filed an appeal to the U.S. Court of Appeals for the Eleventh Circuit in Atlanta in the spring of 2016. The Justice Department got involved once again, this time filing an amicus brief ("friend of the court") in favor of the plaintiffs. In the brief, the DOJ affirmed that it supported the position of Judge Murphy, i.e., that there can be no period of time of detention unless and until there was "meaningful consideration of an individual's indigence and alternatives that would serve the City's interest."

In total, there were nine amicus briefs filed in the Calhoun case. The case even drew the attention of noted constitutional lawyer Paul D. Clement, who filed a brief on behalf of the Georgia Sheriffs' Association in favor of the city and in opposition of the Justice Department's equal protection bail theory. "Bail is a liberty-promoting institution as old as the Republic," Clement wrote, while also describing the city's bail policy as "imminently constitutional."

Clement noted in his brief that, while there may be some question as to how long a person must wait to get review of their bail in the abstract (one week, two weeks, etc.), in this particular case, the legal question was whether a bail schedule can operate during the short window of a 48-hour review--which Judge Murphy had held was unconstitutional. The case, which still is pending, likely is to be the first U.S. Court of Appeals to decide the equal protection bail theory, with an opinion expected in early 2017.

In the spring of 2016, meanwhile, Equal Justice Under Law attorneys decided to sue larger jurisdictions as well. They sued California Attorney General Kamala Harris, along with the counties of Sacramento and San Francisco. While their efforts for an injunction failed--Judge Troy Nunley, in denying their motion for a temporary restraining order, described the plaintiffs complaint as "freedom rhetoric and one-liner platitudes"--those cases still are pending and ultimately may find their way up to the U.S. Court of Appeals for the Ninth Circuit. The same lawyers in May also filed a suit in Houston against Harris County, Texas, under the same theory, a case which is pending in the U.S. District Court for the Southern District of Texas and which could wind up in the U.S. Court of Appeals for the Fifth Circuit.

From a legal standpoint, these cases stand for a basic fundamental question of constitutional law that is based not on facts proven, but on the assumption that factual allegations are true. Practically speaking, however, what really happened in these cases? In many, like the cases in Houston (O 'Donnell v. Harris County) and San Francisco (Buffin v. San Francisco), the named plaintiffs actually posted their bail a day or two after they swore under penalty of peijury that they were indigent and could not afford their bail.

In fact, in the Houston case, Maranda O'Donnell not only posted a bond in the case for which she brought suit, she previously had posted bonds at least twice before in criminal cases in Harris County. This took place within the previous two months of the case that triggered the Federal lawsuit. When her bond was raised due to receiving continuing positive tests for several controlled substances in another case, O'Donnell posted that bond approximately six weeks before the Federal lawsuit was filed. Yet, in complete contradiction to her earlier claims, her sworn affidavit several days prior to posting her bail stated: "I cannot afford to buy my release from jail."

Elimination of all money bail would create significant upheaval and result in negative outcomes throughout our communities. Certainly, all of the arrests made by bail agents of bail jumpers and the accountability created by involvement of a third-party in bail would be eliminated--and need to be replaced. There have been suggestions of using alternatives, such as employing the current Washington, D.C., or Federal systems. However, they likely would bankrupt state and local governments, as they rely heavily on simply denying bail altogether and then releasing everyone else either to pre-conviction supervision or a simple promise to appear.

In addition, pretrial incarceration rates (defined as those arrestees who do not meet the criteria to get of jail) are too high in alternative D.C. and Federal systems--15% and 64%, respectively. Of course, the Federal system only incarcerated 23.8% of all defendants before it was reformed in 1984. In contrast, Connecticut, which widely uses financial bails, incarcerates 7.42% of arrestees.

Moreover, the alternative systems rely on predicting human behavior to scientific accuracy, which means reliance on a big-data criminal justice algorithm to predict who will jump bail and who will commit another crime. Such instruments have been shown by several studies to do a poor job, and numerous commentators have suggested that not only do they fail to be race-neutral, they actually magnify the problems of race in the criminal justice system.

In Kathy O'Neill's Weapons of Math Destruction: How Big Data Increases Inequality and Threatens Democracy, she describes how such algorithms, including those that attempt to predict criminal behavior, are destroying democracy. Ironically, Holder earlier called for a study of these risk-based instruments because, "They may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society."

The outcome of the Justice Department's equal protection theory of bail soon will be tested in the appellate courts. Ultimately, we will find out if the guerrilla campaign to end all monetary bail will succeed legally and, if it does, see the spillover effect the movement has had in the halls of the political branches of state and local government. If it does prevail, it will force all state and local government to implement the Justice Department's Federal risk model as an alternative, requiring changes to nearly every state constitution. If the theory fails, then stakeholders can come back to the table and begin working on some rational reforms.

Jeffrey J. Clayton is executive director of the American Bail Coalition, Lancaster, Pa.
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Title Annotation:Law & Justice; bail system
Author:Clayton, Jeffrey J.
Publication:USA Today (Magazine)
Geographic Code:1USA
Date:Nov 1, 2016
Previous Article:Nation on the take.
Next Article:The walls are bulging: prison cannot continue to be the only answer.

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