January 29, 2019

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

CHICAGO, Jan. 29, 2019 — 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.

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