The American Bar Association has weighed in on a growing national debate over whether an inflexible system that sets fixed amounts for bail and probation is constitutional.
On Jan. 28, the ABA filed an amicus brief with the U.S. Supreme Court, contending that the Calhoun, Ga., bail system, which ties pretrial release to a fixed-payment schedule for misdemeanors and traffic 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, citing a disparate impact on low-income people.
“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 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.
The amicus brief in Maurice Walker v. City of Calhoun, Ga., follows previous ABA briefs filed in current cases now at the federal appeals court level challenging a set probation fee system in Rutherford County, Tenn., and a bail system in Harris County, Texas.