Feds’ compelling case to reform bail
The U.S. Department of Justice says it’s unconstitutional to hold defendants in jail because they can’t afford to make bail — a first-time argument for the department that represents a significant shift in the way federal officials consider a standard criminal justice practice.
Civil rights lawyers from the Justice Department were weighing in on a Georgia case, Maurice Walker vs. the City of Calhoun, with an amicus brief last week.
Walker was arrested by Calhoun police in September 2015 for the misdemeanor charge of being a pedestrian under the influence. He was kept in jail for six nights after his arrest because he couldn’t afford the fixed bail amount.
Last year, Walker sued the city, alleging that its bail rules are a violation of the civil rights of Americans who live in poverty.
“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 said in its brief. The lawyers added that courts must consider a person’s ability to pay — and look at alternatives to guaranteeing a court appearance if necessary.
What the appeals court decides in Walker’s case could have a huge impact across the country — about 70 percent of people currently in jails are being held while they wait for trial. While bail is still considered very much a standard practice in most jurisdictions, the practice is increasingly recognized as an obvious target for criminal justice reform.
There’s no question that posting bail is a larger burden for the indigent than it is for the well-off. What’s interesting is that it may even have an impact on whether or not someone is found guilty of a crime. A recent study from the National Bureau of Economic Research found that being released before trial makes a defendant 15.6 percent less likely to be found guilty.
San Francisco District Attorney George Gascón is experimenting with a computer algorithm to predict whether or not a defendant is a good candidate for no-bail, pretrial release.
It’s a fine idea, and other jurisdictions have gone even further. Washington, D.C., for example, has had success by releasing nonviolent defendants into a supervised program before their court dates instead of setting cash bail. The Justice Department is making it clear that more jurisdictions need to follow suit.