DoJ Says Jail for Not Making Bail is Unconstitutional

Jerri-Lynn here. The Department of Justice (DoJ) has stepped up to address one of the more egregious ways the criminal justice system discriminates against poor people who have been arrested. In a friend-of-the court brief filed before the U.S. Court of Appeals for the Eleventh Circuit earlier this month, the DoJ averred “that a bail scheme that mandates payment of fixed amounts to obtain pretrial release, without meaningful consideration of
an individual’s indigence and alternatives that would serve the City’s interests, violates the Fourteenth Amendment.”

In the overall context of the DoJ’s track record on criminal justice and other issues during the Obama administration, it’s worth examining the details to see how significant the move really is. This Real News Network interview with University of Maryland law professor Doug Colbert delves into details.

It’s worth noting that the position the DoJ has taken here is relatively costless to the agency. The Bail Reform Act of 1966 changed federal law and abolished bail conditions that discriminated against poor people who had been arrested. Before that act was passed, defendants in federal court were routinely jailed for failure to make bail, without regard for their indigence.

The DoJ’s brief concerns the bail practices of the city of Calhoun, Georgia. Yet it is up to state legislatures to change state laws and procedures. As Colbert notes in the interview, to do so would require challenging the interests of the lucrative bail bond industry and their legislative supporters.

JAISAL NOOR, REPORTER, TRNN: Another example of inequity in the country’s justice system, which after decades of advocacy has finally caught the attention of the justice department: cash bail, a system of forcing indigent defendants to put up money in exchange for pre-trial freedom. The government says it routinely violates the constitutional right of the people forced to pay it. The DOJ is weighing in as a result of the case of Maurice Walker, a resident of Calhoun, Georgia who was held in jail for six days because he couldn’t afford $160 bail. [To sort out] the implications of what this means, and if it will truly effect change in an entrenched system, we’re talking to University of Maryland law professor Doug Colbert, who is also a longtime advocate of reform of this pre-trial detention system.

Thanks so much for joining us, Doug.

DOUG COLBERT: You’re very welcome.

NOOR: So I wanted to start off by getting your response to what the city of Calhoun, Georgia, the state’s sheriff’s association, and a lobby group for bail bondsmen said. MSNBC quotes a system of unsecured recognizance bonds greatly reduces the incentive for defendants to appear. It thus simply cannot be any defendant arrested for any crime must be immediately released based on a bare assertion of indigence.

So basically what they’re saying is you can’t trust poor people to show up for court. There has to be some type of incentive. How do you respond to those kind of arguments?

COLBERT: Well, the bail bond business is a very lucrative industry in our country, and people do not want to spend time in jail before trial, before they’ve been found guilty. So people, even the poorest, the lowest-income working person is going to do his and her best to pay the bondsmen’s 10 percent non-refundable fee. It’s a very big moneymaker in terms of the amount of money that’s collected by bondsmen.

NOOR: It’s a billion-dollar industry.

COLBERT: And I think throughout the country it’s much bigger than that, even. Because the idea is, I think what you have to ask yourself is, why should freedom depend on how much money a person has? Obviously the people who have the money are very much advantaged, and the people who are working and making enough to pay their rent and feed their kids. They don’t have any extra money to give away in order to get someone out of jail.

So they’re at a big disadvantage–poor people, of course. Many of whom–and homeless–many of whom are veterans and people who serve this country. They have no chance of making bail at all.

NOOR: So the counterargument, the supporters of bail, would say this is how you keep people from committing those crimes again, and it’s a way to keep dangerous people behind bars. How do you respond to those kind of arguments?

COLBERT: Well, if the idea is that people won’t commit crime when they’re in jail, then I suppose that’s a good argument for incarcerating everyone. You know, I don’t think we really want to do that.

So what the bondsmen are doing are they’re defending the profitmaking system and the power they have. Bondsmen have more power than police officers do. They can enter our home whenever they want. They can arrest us. If I don’t like the way you’re looking at me right now I have the power to put you right back in jail. It’s an archaic system, the system that really grew out of our 200 years of slavery, where we valued people owning property in other human beings.

So what we’re looking at now is a system where the only people who should remain in jail before trial are the people who must be there either because they can be shown to be a significant danger to other people if they’re let out of jail, or if they’re a significant risk of flight, of leaving, of not coming back, of not appearing in court. And in those two situations there’s probably a very small group, in most jurisdictions it’ll be about 10-15 percent of people who are arrested, who must be denied bail. But the other 85-90 percent, they should not be held in jail for long periods simply because they don’t have the money.

NOOR: And what’s the significance of the Department of Justice weighing in on this? It’s the first time, from my understanding, they have made this argument that it’s unconstitutional to do this to poor people in a federal hearing, in a written federal brief.

COLBERT: It’s a huge step towards eliminating money bail or replacing it with an objective risk assessment that will tell us who is more likely not to return to court, who’s more likely to commit a crime. Money has no relation to public safety. You know, you can be charged with a very serious, a severe assault, against a member of your family, and if you’ve got the money to get out of jail you pay it, and then you go right back to the same person, and maybe inflict another beating or worse.

So in terms of public safety, money is shown to have no nexus, no connection, to keeping people safe.

NOOR: And will this move by the federal government in this one instance, do you think that’s going to translate into larger policy shifts? And what could the potential impact of that be on cities like Baltimore, where hundreds if not thousands of people remain locked up every night in the city because they’re unable to pay a cash bail, which is–and also talk about how that’s established, because from my understanding it’s up to the discretion of a judge or another entity. And like you were saying, there’s no sort of objective basis for how that’s set.

COLBERT: So it’s a huge step that the Justice Department has filed an amicus brief arguing that poor and low-income people’s equal protection is being violated. You see, when we talk about equal protection we’re saying that people who are similarly situated, who face the same consequences, they should be treated the same. They shouldn’t be discriminated against so that you’re favoring people who have wealth and disfavoring people who are struggling and who are poor. For the Justice Department of the United States to step in and say this system is fraudulent, it’s rigged, it’s manipulative, it discriminates, that’s a big step towards places like Baltimore, like our own state of Maryland, of saying we can do a system that’s much fairer and that protects the community.

NOOR: And so talk about what the potential impact could be for indigent people in this city how could that help their, you know, help them just in their daily lives? Because right now if you’re locked up for weeks, days or weeks at a time, there’s a good chance you’re going to be losing your job, you’re going to have serious–you could have serious problems with your family, a whole other host of problems that could come up if you lose your freedom, before your trial even happens.

COLBERT: The impact on families and on communities generally is huge, because the family loses a breadwinner, a caretaker, loses somebody who they depend upon. And just think, even for a relatively low bail, a $5,000 bond, the bail bondsman collects $500. It’s non-refundable. So you’re giving away $500. If you take somebody who’s earning $9-$10 in an hour, and if you know that their takehome every week is about $250, so on a monthly they’re getting $1000 that they’re earning. They’re paying $500 of it to a bondsman. Where’s the rent money going to come from? Where’s the food budget? Where are the utilities?

So eventually people can lose their homes. They’re going to be put out on the street. And of course, the kids are never going to get the nourishment that they need. So in the long run we’re really supporting a very selfish industry, one that’s quite antiquated and one that should really be replaced.

NOOR: And they’re certainly going to be putting up a fight as this moves forward. So we’ll stay updated with you and on this story, Doug.

COLBERT: Yeah, the bondsmen are one of the most powerful lobbying groups in our state legislature, and there’s already been two commissions that have called for the end of money bail, the bondsmen. But that bill has not even seen the light of day because of the extraordinary power of bondsmen and their legislative supporters.

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  1. Felix_47

    Does anyone who reads this work with the indigent, the street criminals, the addicts, the homeless, the mentally ill….and the categories overlap? Many of these folks never keep appointments. To extend the argument is it violating one`s rights to have to pay a fine if one is poor? Should fines be based on income? A traffic fine is meaningless to Trump but a speeding ticket would set back a poor family terribly. Would it not make more sense to provide a guaranteed national income than hire and develop one more cadre of professional bail evaluators….one more complex bureaucracy. That way when dad is busted for dope or whatever the guaranteed income still goes to the kids and the mother who can stay home with them instead of holding down two fast food jobs. Who said getting busted is supposed to be a good experience? And maybe we need to realize that the hordes of street people we deal with in this country are a price we pay for unbridled freedom. Many many of these people with whom I work every day get SSI and it is enough to stay in a home with all needs taken care of but they choose to take the cash and live on the street since homes have rules like no booze, dope and curfews and locked down hours for visitors. Maybe our relatively weak social safety net is one reason economic refugees prefer Germany. I am not supporting bail bondsmen, but maybe we need to rethink the police state we live in. If we want equal rights for all people in this country maybe we need to pay for it.

      1. Felix_47

        True but many operators make it work in multi bed facilities including my ex wife. They get unlimited medical coverage as well. The business is not high profit but it works with 20 or 30 and in her case 65 clients. As she jokes the government pays more to take care of dogs in a kennel than mentally disabled. Some of her clients have been with her for 30 years. The requirement is that they stay clean, stay sober and that is too much for a lot of people. And it is easy to get SSI for mental……basically all you have to do is not want to work or be told what to do.

    1. Lin1

      None of this is the issue. The REAL issue is imposing bail improperly, in fact, unconstitutionally. Bail is not to “keep people safe from crime”..It is to ensure the defendants appearance in court. That. Is. Its. Only Legitimate. Purpose. Those defendants with an established history of failing to appear for court were usually denied bail – but that doesn’t help the bail bondsman. On top of that, 90% of the crimes we are talking about are statutory incurred by alcoholics and drug addicts and the poor who cannot afford odious payments imposed on them for some earlier non violent type of charge. We are not talking about bank robbery and murder here. The poor who commit bank robbery are not given bail. The rich who commit bank robbery are not arrested.

    2. reslez

      > they choose to take the cash and live on the street since homes have rules like no booze, dope and curfews and locked down hours for visitors

      Multiple studies have shown it’s far cheaper for cities to simply give empty houses to the homeless than maintain a system of shelters. Some of the “homes” you speak of are equivalent to living in a jail. The vast majority don’t accept pets, a dealbreaker for a lot of people who have nothing left and minimal social ties to others, and basically forbid you from storing or keeping your possessions, another deal breaker. Not to mention the overcrowding, tons of noise at night which prevents sleep, arbitrary rules imposed by authoritarian overseers, violence inflicted by some residents on others, and did I mention overcrowding. People who don’t have kids are the lowest priority for a bed. I agree the system needs to change, but as long as the rich are allowed to ignore the lower 90% nothing will.

      1. Felix_47

        True……No pets in our place. Curfew to be sure it is quiet. No weapons, no drugs or alcohol. Sex is fine as long as it is private. Air conditioned to standard. Unlimited portions. Med transport and medication administration. Definitely more constrained than under a bridge.

  2. fledermaus

    And in those two situations there’s probably a very small group, in most jurisdictions it’ll be about 10-15 percent of people who are arrested, who must be denied bail. But the other 85-90 percent, they should not be held in jail for long periods simply because they don’t have the money.

    This law professor has no experience with actual criminal law. When I worked as a public defender on misdemeanors most of my clients has at least one FTA (failure to appear) on their record. In fact I would reverse his numbers. People often don’t show up for their court dates because they want to delay the moment of reckoning.

    I agree the bail issue is a real problem but pretending that most people held on bail have totally clean records or have made all their prior court dates is foolish and counterproductive. This is on a par with reforming law profs idea that the prisons are filled with non violent 1st time offenders

    1. fledermaus

      Furthermore, the people he is describing are not “denied bail” they are having bail set at a certain amount. If he wants to be taken seriously on this issue he should at least use terms correctly rather than just rail against bail bondsmen and demonstrate at a minimum a basic understanding of the arraignment process.

  3. abynormal

    its a nationwide epidemic. over the last 4yrs i’ve met too many people that can’t afford traffic tickets. they’re set up on a payment system and they have to appear to pay down fine(s). people are losing their jobs over this. when ever penny is budgeted even getting to the city to make payments becomes a hardship. smaller courts farm out these fines to predator debt collectors, not hesitating to call your work with threats. under these conditions Jail becomes inevitable.

    this has a horrible trickle down effect. Children suffer hunger silently…how many of us have interacted with a Hungry Child?? Poor and (past) Middle Class families have been dealing with outrageous ticketing hardships for some time.

    and once released from Jail everything gets worse !

  4. animalogic

    Equally useful might be to start stripping out some of the thousands of often trivial criminal laws that have been placed on the books over the last 20 odd years.
    If the average American unknowingly commits 3 felonies a day, it’s the poorer American who is likely to be caught for it….

  5. Jerri-Lynn Scofield Post author

    I linked to the DoJ’s brief in my intro to the post– well worth reading. With the spread of broken windows policing, plus the budgetary constraints faced by cities, lots of people get nailed for trivial offenses. Why should someone get stuck in jail for not being able to make bail, sometimes for a longer period than that person would have to serve if convicted of the “crime”? Especially since, as others have noted, this hurts their ability to meet obligations and get to work if they have a job. The collateral damage to families is significant. And really, all to what end?

    What I didn’t realize (or had forgotten) before I read the DoJ’s brief is that the feds addressed this situation for federal offenses way back in 1966, partly– according to the brief– at the instigation of Robert Kennedy when he was AG. This reform didn’t destroy the federal system, and as far as I know, people aren’t willy nilly flouting their obligations to appear in federal court.

    The criminal courts are not my bailiwick really, but I thought this interview (when evaluated alongside the DoJ brief, for those who have an interest) provided a spur to discuss a situation that still seems to ensnare lots of poor people. The case discussed here arose in Calhoun, Georgia, but IIRC, the NYT ran a story in their mag sometime within the last year or two discussing similar shenanigans in courts based in NYC. So it’s not just a southern thing.

  6. The Infamous Oregon Lawhobbit

    Bail – and jail for non-payment of fines in general – is a big and ongoing topic of discussion in Oregon municipal and justice courts as they try and sort out what works and what doesn’t. Not sure about circuit courts, though I’d doubt they have much interest in the topic.

    It’d be interesting to find a state-by-state comparison of who’s ignoring, who’s talking, and who’s doing….

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