From arrest to incarceration, the nation’s criminal justice system is flawed with disparities-the poor and racial minorities bearing the brunt of the inequities. This injustice can readily be seen in the way the federal and state governments administer its bail programs.


Presumption of Innocence and Importance of Bail


Every person arrested in this country, regardless of their criminal offense, enjoys a constitutionally protected presumption of innocence. Bail exists as a basic right in most cases to preserve this constitutional guarantee.  It serves to prevent the punishment of incarceration until a defendant is convicted of a crime based upon evidence that establishes guilt beyond a reasonable doubt.


Money Bail Penalizes Poverty


But as politicians beat the law-and-order drums during the last three decades of the twentieth century, bail shifted from being a constitutional safeguard to a corrupt process that penalizes poverty.


70-80 Percent Jail Inmates Have Not Been Convicted of a Crime


According to a May 2016 report by the Prison Policy Initiative (“PPI”), there are more than 3,000 local jails in this country that house nearly 650,000 offenders. A May 2015 report by the Vera Institute of Justice found that 159 of these jails house more than 1,000 offenders, e.g., 8 jails in Los Angeles County houses more than 19,000 while Houston’s Harris County Jail houses nearly 9,000. Seventy percent of these offenders are pretrial detainees who have not been convicted of any crime and are constitutionally presumed innocent.


These legally innocent people are in jail because they cannot make bail. The average bail is $10,000 says PPI while the median income of the legally innocent person prior to their jail incarceration was $15,109. The Bureau of Justice Statistics, reports PPI, says this is less than half of the median income “for non-incarcerated people of similar ages.” To put it in context, the legally innocent in jail “are drastically poorer than their non-incarcerated counterparts.”


DOJ Agrees Fixed Bail Schedules are Unconstitutional


These disturbing numbers are precisely why the U.S. Department filed papers in the 11th Circuit Court of Appeals saying that holding people in jail who are too poor to make bail is unconstitutional.


The Civil Rights Division of the DOJ filed its brief in the case of Maurice Walker who was arrested by Calhoun, Georgia police on a misdemeanor offense of being a pedestrian under the influence and who spent six nights in jail because he could not pay a $160 money bail.


Fortunately, this practice of penalizing the poor, which is played out thousands of times each day across the country, did not sit well with the DOJ.


“Fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for the ability to pay, unlawfully discriminate on the basis of indigence,” DOJ attorneys told the appeals court.


US District Judge Holds Bail Practices Violate Equal Protection


Earlier this year a U.S. district court agreed with the DOJ’s argument that “bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate” the Fourteenth Amendment’s guarantee of equal protection under the law.


The bail case was before the federal district court after attorneys for the Southern Center for Human Rights and Equal Justice Under Law filed a class action lawsuit challenging fixed bail schedules that discriminate against the poor.


Local Georgia officials appealed the district court’s finding that “any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violate the Equal Protection Clause.”


Calhoun city officials in their brief told the appeals court that its bail schedule of pre-fixed amounts based on the seriousness of each offense is allowed under Georgia law.


Sheriff’s Departments and Bondsman Disagree


Two other groups, both of whom have financial interests in keeping their feet on the neck of the poor—the Georgia Sheriff’s Association and a group representing the nation’s bail bondsmen—told the appeals court that the Constitution does not guarantee bail; it only prohibits excessive bail.


“It simply cannot be that any defendant arrested for any crime must be immediately released on the bare assertion of indigence,” these money-grubbers told the 11th Circuit.


NACDL: Pretrial Liberty Must be the Norm


The National Association of Criminal Defense Lawyers, on the other hand, applauded the DOJ’s arguments to the appeals court, saying “pretrial liberty must be the norm and detention prior to trial the carefully limited exception.”


The PPI points out that these local fixed bail schedules are particularly discriminatory against black men whose “pre-incarceration median income [is] 64% lower than that of their own non-incarcerated counterparts.”


White House: Money Bail Crude Way to Screen Pretrial Defendants


The PPI calls for a complete elimination of money bail, pointing out that research shows that an additional 25 percent of the legally innocent in jail could be released without any increase in crime. The White House, notes PPI, has condemned money bail as “a crude way to screen pretrial defendants for their risk of flight or danger to the community.”


Some jurisdictions, like the District of Columbia and the state of Kentucky, have turned to personal recognizance bonds to ensure the presence of defendants at trial and the practice has proven imminently successful.


Many local sheriffs’ departments want to keep high money bail in place because, in 41 states, they benefit from “pay-to-stay” programs—incarcerated individuals are required to pay room and board to the sheriffs for as much as $142 a day as in Riverside County, California.


These same sheriffs’ and local police departments also aggressively seek out poor people who do not (in most instances, cannot) pay fines for misdemeanor violations and traffic offenses. They want these poor people in jail where they can profit from excessive telephone and video visitation fees that typically cost $1 per minute. These exploitative jail fees not only penalize the legally innocent but, according to PPI, puts one third of their families in debt as they cover phone and visitation costs with their incarcerated loved ones.


So, naturally, sheriffs’ associations oppose the elimination of money bail and fixed bail schedules because that would take money out of their pockets.


Legally innocent people should not be made to pay, whether it’s pre-set money bail or excessive in-jail phone fees, just to profit city or county coffers. Such practices are not only unconstitutional but morally disgusting.


We await a ruling from the 11th Circuit.