Obama chal­leng­ing the bail sys­tem

White House ar­gues too many pun­ished ‘for their poverty’

Baltimore Sun - - NATION & WORLD - By David Sav­age

WASH­ING­TON — Pres­i­dent Barack Obama’s civil rights lawyers are seek­ing a po­ten­tially far-reach­ing rul­ing to hold that the Con­sti­tu­tion for­bids the com­mon prac­tice of keep­ing peo­ple in jail prior to a trial, even for mi­nor of­fenses, just be­cause they are too poor to pay for bail.

Every day, about 450,000 peo­ple are held un­der ar­rest in city and county jails be­cause they can­not af­ford bail, ac­cord­ing to the South­ern Cen­ter for Hu­man Rights and Wash­ing­ton- based Equal Jus­tice Un­der Law.

Last week, the Jus­tice Depart­ment in­ter­vened on their side in a Ge­or­gia case that chal­lenges the use of fixed bail sched­ules for peo­ple who are ar­rested.

It be­gan when Maurice Walker, a poor and dis­abled man, was ar­rested last year as a “pedes­trian un­der the in­flu­ence” and was held in jail for six days in Cal­houn, Ga., be­cause he could not af­ford the stan­dard $160 bail.

The Con­sti­tu­tion for­bids “pun­ish­ing peo­ple for their poverty,” the gov­ern­ment’s civil rights lawyers ar­gued in a brief to the 11th Cir­cuit Court in At­lanta. The Eighth Amendment says “ex­ces­sive bail shall not be re­quired.” And the 14th Amendment, which pro­tects the rights to lib­erty and equal pro­tec­tion of the laws, should be read to pro­hibit “bail prac­tices that in­car­cer­ate in­di­gent in­di­vid­u­als be­fore trial solely be­cause of their in­abil­ity to pay,” they said.

They agreed, how­ever, that ar­rested peo­ple can be held if a judge be­lieves they pose a danger if re­leased or are likely to flee.

The Jus­tice Depart­ment’s in­ter­ven­tion is the lat­est step in a grow­ing le­gal and po­lit­i­cal at­tack on the money bail sys­tem. It arose in part from in­ves­ti­ga­tions that re­vealed how poor peo­ple in Fer­gu­son, Mo., had be­come trapped by es­ca­lat­ing fees and fines for rel­a­tively mi­nor of­fenses.

“This is a huge scan­dal, and it’s been al­most ig­nored over the last 30 years,” said Alec Karakat­sa­nis, co-founder of the Equal Jus­tice project. “If you are dan­ger­ous but rich, you can walk free. At­tor­ney Gen­eral Loretta Lynch has cited the money bail sys­tem at a meet­ing on the “crim­i­nal­iza­tion of poverty.” Whether you stay in jail or not shouldn’t de­pend how much you can pay.”

He said this sys­tem takes its harsh­est toll on the poor­est peo­ple for whom a few days in jail can mean the loss of a job or, for a sin­gle par­ent, a loss of chil­dren. The prospect of be­ing held in jail also prompts ar­rested peo­ple to plead guilty to crimes, even if they are in­no­cent, he said.

Some peo­ple die in jail too, he added. “San­dra Bland couldn’t pay and died in a Texas jail,” he said.

He was re­fer­ring to the case of the black woman from the Chicago area who was stopped on a Texas high­way last year by a white state trooper who said she made an im­proper lane change. When the two quar­reled, she was ar­rested and taken to jail. She was un­able to post a $500 bond and com­mit­ted sui­cide three days later.

The Equal Jus­tice group has filed law­suits chal­leng­ing the money bail sys­tem in cities across the South and has pend­ing suits in San Fran­cisco and Sacra­mento. Sev­eral cities have agreed to stop re­quired money bail for new ar­restees.

When the City of Cal­houn was sued, it adopted a new pol­icy to give peo­ple who are ar­rested a hear­ing within 48 hours. But a fed­eral judge ruled it was un­con­sti­tu­tional to ar­rest peo­ple for mis­de­meanors and keep them in jail over the week­end be­cause they could not af­ford to pay bail. The city ap­pealed to the 11th Cir­cuit, the first of the suits to reach a U.S. ap­peals court.

The lawyers ex­pect the case of Walker v. Cal­houn will be set for ar­gu­ment in the fall.

In De­cem­ber, the White House con­vened a meet­ing to take aim at the “crim­i­nal­iza­tion of poverty,” and At­tor­ney Gen­eral Loretta Lynch cited the money bail sys­tem as part of the prob­lem. “In a coun­try where we have ruled debtors’ pris­ons are un­con­sti­tu­tional, too many of our cit­i­zens are sim­ply in jail be­cause they don’t have the money to get out,” she said.

The Amer­i­can Bar As­so­ci­a­tion and the lib­er­tar­ian Cato In­sti­tute joined the ad­min­is­tra­tion’s side this month in the Ge­or­gia case.

The ABA’s lawyers said there are other ways to as­sure that de­fen­dants ap­pear for their tri­als.

In 1983, the Supreme Court ruled poor peo­ple can­not be im­pris­oned be- cause they can­not pay a crim­i­nal fine, but they have not ques­tioned the prac­tice of re­quir­ing peo­ple to post bail to get out of jail be­fore trial.

“This is an open ques­tion. This is first time I’ve seen ap­pel­late lit­i­ga­tion on it,” said Univer­sity of Penn­syl­va­nia law pro­fes­sor Stephanos Bibas.

The Amer­i­can Bail Coali­tion and the Ge­or­gia As­so­ci­a­tion of Pro­fes­sional Bonds­men hired former U.S. So­lic­i­tor Gen. Paul Clement to ar­gue in de­fense of the bail bond sys­tem.

The chal­lengers would “ef­fec­tively abol­ish mone­tary bail” and en­ti­tle poor de­fen­dants to “im­me­di­ate re­lease,” Clement wrote. “Noth­ing in the Con­sti­tu­tion sup­ports that ex­treme po­si­tion….By en­abling de­fen­dants to post bail with only a frac­tion of the re­quired amount, the com­mer­cial bail in­dus­try al­lows in­di­vid­u­als of all fi­nan­cial means to lever­age their so­cial net­works and com­mu­nity ties to ob­tain pre­trial re­lease….The mod­ern sys­tem of bail is fun­da­men­tally not about poverty or wealth but in­stead about pre­serv­ing lib­erty while en­sur­ing com­mu­nity safety and ap­pear­ance in court.”


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