The federal Department of Justice just made a landmark filing declaring that bail systems which don’t take into account the suspect’s ability to repay are unconstitutional.

The motion seeks to end the practice of jailing people who cannot afford bail if they are not an actual flight risk.

It’s also a major blow against the parasitic bail bonds industry which privileges a few private companies to pocket bond money from poor people who cannot afford high bail for minor offenses.

Here is an excerpt from Justice Department’s legal brief, which you can read in its entirety below:

Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment… under the Equal Protection Clause, no defendant can be held in custody based solely on inability to post a monetary bond.

While the use of fixed bail schedules may provide a convenient way to administer pretrial release, incarcerating those who cannot afford to pay the bail amounts, without meaningful consideration of alternatives, infringes on equal protection and due process requirements. Bail practices that fail to account for indigence are not only unconstitutional, but also conflict with sound public policy considerations.

The litigant in the case is Maurice Walker, a 54-year old man arrested by the Calhoun Police Department in Georgia for being a pedestrian under the influence.

Walker, who remained incarcerated for six nights, is lucky to have survived his ordeal because he was unable to take his daily medication, and that he was allowed out of his cell for only one hour each day during his pretrial detention.

And an entire class action lawsuit was launched , all because Maurice Walker could not afford $1,600 cash bail.

In the 12-month period after Sandra Bland died under foul circumstances, after being denied her prescribed epilepsy medication in a Waller County, Texas jail, more than 800 other Americans have died in custody, according to a Huffington Post count.

The study showed that more than one in three of those citizens died within the first seven days of incarceration. And an astounding 22.4 percent or 183 prison deaths  happened in the first three days alone.

Walker’s lawyers told the court on his behalf that, when this lawsuit was filed, the City held court only on non-holiday Mondays, and because Walker was arrested on the Thursday before Labor Day.

He remained in jail for six days until his counsel could secure his release on his own recognizance.

Walker also alleged that “each Monday when court is held, there are commonly about four to six indigent defendants who were not able to pay… to secure their release.”

Walker later filed his class action lawsuit – with the help of the Southern Center for Human Rights – alleging that the City of Calhoun employs an unconstitutional bail practice that imprisons indigent defendants because of their inability to pay fixed bail amounts for misdemeanors, traffic offenses, municipal violations.

Walker won his case, but it was was appealed by the City of Calhoun.

Maurice Walker

Maurice Walker

That’s when the Justice Department decided to make an example of Walker’s case this week, which is a practical and public demonstration to judges and magistrates across the country that they cannot ignore income inequality when deciding who is free before trial, and who must remain behind bars.

The Department of Justice created a working group, which performed six years of study, which circulated a nine page guidance letter this past March reminding judges and courts to carefully review their bail procedures for income fairness.

In their brief, the federal attorneys agreed with Walker’s trial judge in a big way, noting that his decision was based on sound legal reasoning, and the federal lawyers chastised the model many courts use for bail as discriminatory, which is summarized here:

The district court reviewed Supreme Court and circuit precedent recognizing that equal protection and due process principles prohibit punishing people for their poverty. The court then determined that this rule was “especially true” for pretrial detainees who had yet to be found guilty of a crime, observing that other courts have reached similar conclusions.

In fact, where fixed bail schedules are used without meaningful consideration of alternatives that account for inability to pay, indigent arrestees seeking bail are faced with precisely the same type of “illusory choice” that the Supreme Court has recognized “works an invidious discrimination.”

America’s judges have no more excuse for holding minor criminal suspects and traffic offenders without bail, just because they’re unable to afford a cash payment.

Once Walker’s class action lawsuit appeal is finally ruled upon (most likely in his favor now) it can become a binding legal precedent.


Walker – Dept. Of Justice Amicus Curae Brief by Grant Stern on Scribd