The American Bar Association is urging the U.S. Supreme Court to review the bail system in Alabama that uses a schedule of cash bail amounts without regard to flight risk or public safety.
The case focuses on one of 67 counties in Alabama but could have far-reaching effects. At issue is whether the Due Process Clause of the U.S. Constitution allows states to deprive a defendant of physical liberty before trial without a court’s finding that detention is necessary to protect public safety or to reasonably assure the person’s appearance at future court proceedings.
In the case arising out of Cullman County, the petitioner was charged with misdemeanor drug-paraphernalia possession and remained in custody for two days until a magistrate conducted an initial appearance because he could not afford the $1,000 bail set by the schedule. He could not subsequently pay the amount and remained in jail until trial.
A U.S. District Court found that the bail system unlawfully discriminates because it treats defendants who are indigent differently than defendants with means. But a divided three-judge panel of the U.S. Court of Appeals for the 11th Circuit reversed the trial court’s decision, upholding the constitutionality of the county’s bail system.
The ABA brief, in support of the petitioner, says the Cullman County system is inconsistent with nearly a half century of ABA policies and ABA Criminal Justice Standards. It notes that under the current system wealthier arrestees in Cullman County who can afford bail are released immediately until trial and argues that the arrangement is unconstitutional because it establishes a two-tier system of pretrial release between the indigent and non-indigent without advancing any compelling government interest.
“Detention has immediate and long-lasting impacts on detainees, their families and their communities,” the ABA brief says. “Research confirms the district court’s findings that even a day or two in jail ‘negatively influences a person’s employment, financial circumstances, housing and the wellbeing of dependent family members.’”
- ABA amicus brief in Hester v. Gentry
- "ABA Standards for Criminal Justice: Pretrial Release (Third Edition)"
- Key ABA entities behind the brief:
- ABA Journal: “ABA asks Supreme Court to review Alabama case involving fixed bail amounts”