Justice Department: People Cannot Be Held in Jail Because They Cannot Afford Bail

It is not unusual for a minor drug offender to be held behind bars simply because he or she does not have the financial resources to afford bail. However, last week, the Justice Department denounced this action in court, saying that it is unconstitutional to keep defendants locked up in jail because they cannot raise the money required for their release.

“Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment,” the Justice Department wrote in a first-of-its-kind amicus brief filed in federal court on Friday.

The decision comes in light of a case involving a 54-year-old Georgia man by the name of Maurice Walker, who was busted by the Calhoun Police Department in 2015 for being a “pedestrian under the influence.” The filing indicates that Walker, who has a “serious mental health disability and limited income with no assets,” was told that he would have to remain in jail until his court date unless he could pay the fixed bail amount of $160—the amount set for the offense of being a pedestrian under the influence.

Walker ended up sitting in a jail cell for six days because Calhoun courts were only active once a week. Court documents show that he was arrested on the Thursday prior to Labor Day, a time when city courts were scheduled to be closed, so Walker had no other option but to cough up the full bail amount or sit in jail until the following Monday. And while $160 may not sound like a lot of money to pull together, the DOJ brief states that Walker’s only source of income was $530 per month in Social Security benefits.

In a lawsuit filed against the city, Walker said that his six-day imprisonment prevented him from taking his medication and that he was only allowed to leave his cell for about an hour each day. The complaint alleged that the city’s bail practices were in violation of the “Due Process and Equal Protection Clauses of the Fourteenth Amendment.”

A district court ruled in favor of Walker earlier this year, saying, “[a]ny bail or bond scheme that mandates payment of pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause.”

The Justice Department’s briefing concurred with the decision by saying that a person’s financial situation must be taken into consideration when it comes to setting bail, and that courts are required to devise alternative options for seeing that a court date is upheld.

“Fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for the ability to pay unlawfully discriminate based on indigence,” the filing reads. “Under such bail schemes, arrestees who can afford to pay the fixed bail amount are promptly released whenever they are able to access sufficient funds for payment, even if they are likely to miss their assigned court date or pose a danger to others. Conversely, the use of such schedules effectively denies pretrial release to those who cannot afford to pay the fixed bail amount, even if they pose no flight risk, and even if alternative methods of assuring appearance (such as an unsecured bond or supervised release) could be imposed. Such individuals are unnecessarily kept in jail until their court appearance often for even minor offenses, such as a traffic or ordinance violation, including violations that are not punishable by incarceration.”

The federal government’s clarification on this issue comes after many civil rights organizations pressured the DOJ to step in over unconstitutional bail practices.

Experts say the decision could prevent hundreds of thousands of minor offenders from being held in jail because they cannot afford the cost of freedom.

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