U.S. Justice Department Says Poor Defendants Can’t Be Held If They Can’t Afford Bail

Angela Bronner Helm
U.S. Attorney General Loretta Lynch
Allison Shelley/Getty Images

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.

The site notes also that California is currently facing a class-action lawsuit for charging defendants exorbitant bail amounts, which then forces them to take out interest-accruing loans from bail bondsmen. The city of Jennings, Missouri was recently ordered to pay nearly 2,000 prisoners $4.75 million because they couldn’t pay court fines and fees.


Read more at NBC News and Think Progress.

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