ABA urges U.S. Supreme Court to review constitutionality of structured bail systems

Jail

The American Bar Association filed an amicus brief Monday with the U.S. Supreme Court, contending that the Calhoun, Ga., bail system, which ties pretrial release directly to a fixed-payment schedule of offenses, violates the Equal Protection and Due Process clauses of the 14th Amendment.

“A money bail system that deprives defendants of their liberty without individualized assessments of their personal and financial circumstances violates the Constitution,” the ABA brief said.

The brief, in support of a group of defendants in Calhoun, asks the high court to grant certiorari to review a decision by the U.S. Court of Appeals for the Eleventh Circuit upholding Calhoun’s revised bail system. Scores of jurisdictions nationwide use similar inflexible money-bail systems in their criminal justice proceedings although many states and local entities have discarded their use in recent years.

The Calhoun case, as well as others before other circuit courts, have been moving through the federal court system for several years, with the Eleventh Circuit challenge giving the Supreme Court a chance to consider the constitutionality of a system that detains poor defendants, regardless of the offense, solely because they were unable to pay pre-set bail.

The ABA brief cites long-standing ABA policies and ABA Criminal Justice Standards that encourage release on recognizance and notes that “pretrial release conditions should be imposed only as necessary to serve their legitimate purposes of ensuring defendants’ reappearance and protecting the public.

“Because poverty strongly correlates with race, cash bail tends to result in the pretrial incarceration of racial minority groups, exacerbating pre-existing racial disparities in the criminal justice system,” the ABA brief said.

The amicus brief in Maurice Walker v. City of Calhoun, Ga., is available here. The ABA has also filed amicus briefs in similar cases arising out of Rutherford County, Tenn. and Harris County, Texas. These and other amicus briefs can be found on the ABA Standing Committee on Amicus Curiae Briefs’ website.

Video: Is the US bail system fair?

cash moneyA movement to eliminate cash bail is gathering steam in the criminal justice system. Is forcing people with low or no income to pay to get out of jail a fair and effective practice? California recently abolished cash bail for defendants, as noted by The Washington Post, although critics say the new law creates new problems. PBS station KQED takes a look at whether reform is needed in the bail system in this video.

The Hamilton Project releases new report that concludes the cash bail system cost the U.S. economy over $15 billion in 2018

cash moneyThe Hamilton Project at the Brookings Institution has released a new report titled, “The Economics of Bail and Pretrial Detention,” which explores the economic burden that the U.S. bail and pretrial detention system places not only on low-income defendants—but society as a whole. 

The study concludes that in 2018, the direct cost of bail to the U.S. economy was $15.26 billion (illustrated below in Table 1). The more than $15 billion in costs does not include additional indirect fees and long-run damages including: decreased future employment opportunities, increased financial burdens placed on family members, and future crimes committed, among other factors.  Additional findings from the report include:

  • Despite California’s recent elimination of cash bail, the analysis finds that in recent decades, the usage of bail and the duration of pretrial detention in the U.S. has increased significantly—regardless of the type of offense. For example: between 1992 and 2009, median bail increased by 33 percent for drug offenses, 48 percent for public order offenses, and 67 percent for violent offenses. 
  • Nearly 25 percent of all state and local inmates are in jail without having been convicted of a crime. The majority of these people are deemed eligible for release by a judge—but are unable to raise the funds to leave jail.
  • Pretrial detention periods are growing substantially, subsequently increasing costs to those who cannot afford bail. According to the Bureau of Justice Statistics, the median duration of pretrial detention increased for every charged offense, ranging from an increase of 34 percent for burglary to 104 percent for rape. 
  • The share of released defendants who relied on commercial bail bonds more than doubled—rising from 24 to 49 percent, from 1990-2009. Commercial bonds account for all of the increase in total defendants who are able to secure financial release.

To learn more about the findings in the analysis, view the full report online.