Justice Department Says Jailing Poor People For Being Unable to Pay Bail is Unconstitutional

Bails that don't consider defendants' ability to pay "are not only unconstitutional, but they also constitute bad public policy," the Justice Department said.


Kim Hairston/TNS/Newscom

Jailing poor defendants because they can't afford to pay bail is unconstitutional and bad public policy, the Justice Department argued in federal appeals court in a brief filed Friday.

In an amicus brief to the 11th Circuit Court of Appeals on behalf of a mentally ill Georgia man who was jailed for six days when he couldn't afford to post bail, the Justice Department said bail schemes that don't consider an indigent defendant's ability to pay violate the 14th Amendment's equal protection clause.

Since the national debate on policing that erupted after the police shooting of Michael Brown in Ferguson, Missouri, investigations have revealed how some cities and counties raise significant amounts of their revenue through the punitive enforcement of minor fines and code violations, which, unsurprisingly, falls hardest on poor and minority communities. Numerous lawsuits have been filed over the past 16 months—in Georgia, Mississippi, Massachusetts, Alabama, Texas, Missouri, and Louisiana—alleging that cities and counties are essentially operating unconstitutional debtors' prisons.

Earlier this year, the Justice Department released a "dear colleague" letter on the illegal enforcement of fines and fees. Among other things, the Justice Department warned municipalities that "courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release."

In Friday's brief, the first time the Justice Department has made the argument in court, the department struck an even more strident tone:

"In addition to violating the Fourteenth Amendment, such bail systems result in the unnecessary incarceration of people and impede the fair administration of justice for indigent arrestees," the department wrote. "Thus, they are not only unconstitutional, but they also constitute bad public policy."

In the 11th Circuit case, Maurice Walker is suing the city of Calhoun, Georgia for jailing him for six days after he was unable to pay a $160 fixed cash bond. Walker, 54, was arrested on charges of being a pedestrian under the influence. He has serious mental health issues and a limited, fixed income, according to the complaint. While he was held in pretrial detention, he claims he was unable to take his medication and only allowed out of his cell for an hour a day.

Walker was released from jail after two civil rights advocacy groups, the Southern Center for Human Rights and Equal Justice Under Law, filed a class action lawsuit on his behalf against the city.

"Hundreds of thousands of human beings are held in American cages every night solely because they are too poor to make a payment," Alec Karakatsanis, the co-founder of Equal Justice Under Law, said. "Today's amicus filings of support by a wide range of groups, including the Department of Justice, takes us closer to finally eradicating poverty jailing from American society."

A district court placed an injunction against the city of Calhoun, ordering it to implement a new bail scheme and release any misdemeanor arrestees in the meantime.

Opposing the Justice Department's argument is the American Bail Coalition. In an amicus brief on behalf of the city and the ABC, former U.S. Solicitor General Paul Clement wrote that "bail is a liberty-promoting institution as old as the republic."

"Plaintiffs would have this Court effectively abolish monetary bail on the theory that any defendant is entitled to immediate release based on an unverified assertion of indigency," Clement wrote. "Nothing in the Constitution supports that extreme position. In fact, the text and history of our founding charter conclusively confirm that monetary bail is constitutional."

However, the libertarian Cato Institute, in a separate amicus brief in support of Walker, argues that the common law right to individual bail stretches back a millennium and is well-established in the Constitution.

"Constitutional history could not be clearer about bail and pretrial liberty: it must be available and affordable to all but the most dangerous defendants," Cato counsel Ilya Shapiro wrote. "The City of Calhoun now stands with the Stuart Kings among the tyrants of history who usurp ancient rights—and on appeal is trying to defend that title. The city's best course would be to abandon its defense and comply with basic due-process requirements that preserve the freedom of the poor. That would save its taxpayers some legal fees to boot."

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  1. Let’s play, “Who has the incentive?”

    This week’s test: Bondsmen.

  2. So by the same logic under “equal protection” fines should also be on a sliding scale based on ability to pay?

    1. Probably. They’re just taxes, after all.

      1. The government shouldn’t be locking up poor people because they’ve been hit with a fine that they have no ability to pay. It’s one thing to say the fine is the same for everyone. It’s another thing for a person hit with a fine to present evidence that they have no way to pay such a large amount, and instead of structured payments that they can pay, tosses them into debtor’s prison.

        1. As a prime example A forest fire in California was determined to be caused by a poorly maintained electrical outlet on a house. The government is now suing that homeowner for $25 million. How many homeowners have $25million and how many home owners realize that they have faulty electrical outlets. this is a punitive action that they can never recover from the homeowner and if they can’t pay will they go to jail or this is the next step into forcing homeowners into having yearly inspections by the government.

  3. The Cato brief has an impressive array of authorities, going back to the 17th century, indicating that exacting bail a defendant cannot afford is excessive.

    Bail is the institutional embodiment of the presumption of innocence.

    If they can keep you in prison simply because you’ve been charged, why bother with a trial and sentence?

    Traditionally, there have been crimes so bad – like capital murder – where bail can be denied “if the proof is evident and the presumption strong.” This is an exception to the general rule, and the exception applies regardless of income.

    Walking under the influence doesn’t strike me as comparable to murder.

    1. Why do you want the terrorists to win?

      1. If parking regulations aren’t backed with jail time we all lose.

        1. Society would break down completely if the threat of incarceration (and implicitly the threat of bodily harm and/or death if you don’t comply with detention) weren’t hanging over everyone’s heads like swords of Damocles. You are a citizen, you will comply regardless of the reasonableness of any given law regardless of its triviality. If you do not, you will be brutalized up to and including death. This is called fairness and equality and it is the embodiment of justice.

          Lady Justice is blindfolded so as to ignore any injustice in the law and she carries a sword to make sure you obey without question or complaint. That is the reality of her symbolism in the modern age despite the noble picture she is claimed to represent. I propose that we should mothball all the statues of Lady Justice and replace them with statues of Diogenes with his lantern (which only burns during daylight hours) to help us find some honest men to restore her to us.

    2. Presumption of innocence is reserved for Democrats and cops. Everyone else is guilty. Period.

  4. If people want to be treated equally under the law, then maybe they should quit being so goddamn poor.

  5. The city’s best course would be to abandon its defense and comply with basic due-process requirements that preserve the freedom of the poor. That would save its taxpayers some legal fees to boot.

    The city is expecting to recoup those costs for the taxpayer through high bail payments that defendants are unable to make.

    1. + making it up on volume.

  6. So long as this is a first step towards questioning why so many of these people are even involved with the ‘justice’ system at all then this is a good thing.

    Because otherwise this will prove nothing more than an exercise in can kicking.

    1. It won’t. The focus will be on the race of the people involved, not the fact that the laws themselves are unjust.

      1. God, so much this.

      2. You’re so fucking stupid it’s painful.

        1. You so smart. Wow.

        2. Tony, your overall lack of cognitive prowess is breathtaking. You are a complete progtard, and lifelong oxygen thief. That you are criticizing anyone else for being stupid is hypocrisy at it’s finest. You should seriously consider suicide.

          Oh, and fuck off.

    2. ie. The entire process has little, if anything to do with protecting civil order and has everything to do with dunning the local populace in order to generate revenue for the government.

      1. not to mention the cumulative affect of keeping poor people on a legal loop that they can never escape since once they can’t pay fines they they are fined interest and when they can’t pay that they are sued by the state which only exacerbates the situation even more. it literally keeps people poor and forces them to hide any free cash they may have just to put food on the table and why even get a job then since all monies will just go to the state. its a lose lose.

        1. “… forces them to hide any free cash they may have…”

          Oh, it is much more insidious than that. The one thing the government will not ‘deprive’ them of? Government bennies. Those same bennies then serving as a buffer against absolute penury – something that might actually cause the whole system to come crashing down.

          As it is they become trapped in that perpetual state of dependency.

  7. the Justice Department said bail schemes that don’t consider an indigent defendant’s ability to pay violate the 14th Amendment’s equal protection clause.

    With all due respect, what’s magic about “bail schemes” and “ability to pay”?

    If we’re gonna invoke “equal protection” how bout eliminating all fines and jail time in favor of the stocks?

  8. I totally agree with getting rid of the ridiculous fines and fees that cities are using to fund thenselves. And I would agree that walking while drunk, in and of itself, is hardly reason to jail someone.

    However, if an indigent is arrested for a real crime (say assault, or theft), should their bail be $1 while a white collar person arrested for the same offense have $1000 bail? I am not necessarily arguing here, but something about that premise seems off to me.

    1. You are arguing the point, but it is a thoughtful point.

      Here are my counter-questions: if the defendant is afforded the legal presumption of innocence unless found guilty by a jury, and hasn’t allegedly committed such a heinous crime that bail should be denied regardless of income, should we lock up an person presumed innocent because they can’t raise enough money to satisfy an avaricious state?

      And, wouldn’t you agree that the marginal value of, say, $100 to an indigent person is much higher than the marginal value to a wealthy person who has multiples of that amount in walking around money on their person?

      1. I guess I meant to say that I am only “arguing” to get clarity, not because I have any emotional investment in a position.

        You have given me some food for thought. I will probably have to read more about the history and basis for bail.

        Your presumption of innocence point is rather compelling. I am not quite so convinced, however about the justice in assigning bail based on marginal value. But, I am certainly open to thinking about it.

  9. Let me put it another way. If a person is arrested for a real crime, setting bail is hardly the same as a debtor’s prison where someone in the first place owes a debt, and is then imprisoned for not being able to pay, with no other crime being alleged.

    1. So the rich guy who’s innocent makes bail, goes to work the next morning and carries on with his life after acquittal.
      The poor guy who’s innocent can’t make bail, sits in jail, loses his job and has seen what little he had gone after acquittal.

      Plays hell with the perception, if not the reality, of equal justice under the law.

  10. There is indeed a war on poverty; but the kind we hear about.

    Also. Thankfully there are advocacy groups out there for the voiceless.

    1. but not the kind we hear about

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  13. I’m a bit unpersuaded.

    He doesn’t own anything of value in the area, and could flee with no cost to him?
    Well clearly he’s poor and we can’t set ANY bail; we have to let him flee.

    Sorry sir. The homeless guy who raped your kid; we had to let him run.
    He’s long gone by now. No idea where he is.
    If we find him again, we promise to let him go again because he’s still broke and can’t afford bail.
    We’ll just keep letting him run free over and over again.
    This is what we call justice!

    So remember, if anyone commits a crime against you; and they’re broke, the system will not punish them in any way except letting them flee without bail.
    If you want justice, you’ll have to get it yourself somehow, and not involve the authorities.

    Or is that NOT the lesson here? Can you explain what other lesson might be taught?

    1. Do you realize your argument rests entirely on the premise that poor people are freer to travel than others?

      1. It does;t take much for drifters to drift you fucking dumbass.

        Now fuck off progtard.

    2. Add in that trials can take years for defendants rather than speedy trials starting in less than a month. This would either acquit or convict the defendants rather than leaving them to linger on bail and “run away”.

    3. The system is not supposed to punish people before they are found guilty.

      It’s really a moot point since the constitution guarantees the right to bail that is not excessive.

  14. One thought that artifacts such as debtors prison had long since been emiminated. Would one be wrong?

  15. “Opposing the Justice Department’s argument is the American Bail Coalition.”

    Not shocking the bail bond industry would make some disingenuous argument about justice or something.

  16. “Opposing the Justice Department’s argument is the American Bail Coalition.”

    Not shocking the bail bond industry would make some disingenuous argument about justice or something.

  17. The 8th Amendment clearly states that excessive bail shall not be required. There is no exception to bail for any crime because everyone accused of crimes is presumed innocent. As with many rights, government has been allowed to limit our freedoms. Now it has come to this.

    Everyone should get a reasonable bail amount (

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  19. Sooo this is more complicated than one might think. The whole “not running away” thing is a real thing. When I was a kid I knew a lot of dumb asses (who were fun to party with!) who got arrested for various (mostly) minor things. A couple of the dumbest, for some of the slightly more serious things, literally thought about leaving town. Some of them in fact did. More than once I can recall the “I won’t get my bail money back” thing coming up in conversation. It in fact works to prevent people from leaving town over minor crap with short statute of limitations.

    One guy that did leave town did it because whatever dumb crap he got busted for had a 3 or 5 year statute of limitation or something. So he moved to New York so he wouldn’t spend 9 months or a year or whatever in jail. Easier to stay away from his home town for a few years than do the time he had earned by being a moron. If he’d had bigger bail maybe he wouldn’t have, I dunno. Or maybe he would have been locked up the whole time because he couldn’t have afforded whatever the bail was. Either way given that he was guilty it would have worked the way it’s supposed to.

    1. One might presume one is innocent of saaay vandalism or a “minor” burglary, but often that is not the case. Often it is, but not always. Most of the people I knew were guilty of whatever their dumb activities were. I don’t think it’s that horrible to have someone have their asses locked up in jail for a week when they can’t come up with the money to pay a $1000 bail or something for a $5000 burglary charge. It does suck if you’re innocent of course, but so does being charged with murder when you’re innocent, and nobody thinks people charged of murder should be allowed to run free.

      The real ROOT of the problem is having idiotic laws that shouldn’t exist to arrest people for in the first place, non speedy trials, and perhaps excessive bail vs the crime in question. There is no “perfect” solution for the problem other than dealing with the root of the problem. I don’t think people should be held on bail for crimes where the only punishment is a fine in the first place. That’s just ridiculous.

      So fixing obviously dumb bits, sure. Throwing out the whole concept, maybe not so much. Get rid of shit laws so the justice system doesn’t catch so many in their net in the first place is where I would want to start.

      1. Obviously, with reasonable views like this, ^ you cannot be considered for employment in the government. Your head would explode. 🙂 But I get your point and agree.

  20. It is hard to believe how ignorant the left can be. The bail system has worked great for many years and although not perfect it has done a lot to make sure the defendants show up for court. Changing this system will have unwanted results.

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