The Constitutionality of Local and State Cash Bail Systems

The Constitutionality of Local and State Cash Bail Systems

Marleigh Davis*

Lately there has been a push encouraging states to move away from fixed cash bail systems and the practice of jailing those who cannot pay.  Pete Williams, Justice Department Says Poor Can’t Be Held when They Can’t Afford Bail, NBC News (Aug.19, 2016, 5:10 PM),  The U.S. Justice Department took a stand on this issue in late August after filing a brief with the United States Court of Appeals for the Eleventh Circuit, alleging that the fixed cash bail practice is in violation of the Equal Protection Clause of the Fourteenth Amendment. Associated Press, Feds Say That It’s Unfair to Hold Poor Defendants if They Can’t Afford Bail, Fortune (Aug. 20, 2016, 7:37 PM),  The Justice Department argues that local courts that jail poor arrestees because they cannot pay bail are discriminating against the poor, thus violating the Equal Protection Clause.  Id.

Walker v. City of Calhoun

The Justice Department’s brief was filed in response to a lawsuit regarding Maurice Walker, a Georgia resident, who spent six days in jail in Calhoun, Georgia because he could not afford to pay $160 bail following his arrest for a misdemeanor charge of walking while intoxicated.  Williams, supra.  Walker is a fifty-four year old who has a serious mental disorder and lives off of $530 per month in social security benefits.  Walker v. City of Calhoun, No. 4:15-CV-0170-HLM, 2016 WL 361612, at *1 (N.D. Ga. Jan. 28, 2016).  Walker has no property assets and lives with his sister.  Id.  In the city of Calhoun, many people arrested for minor traffic or misdemeanor offenses are released from custody immediately upon payment of money to the city.  Federal Court Condemns Calhoun City Practice of Jailing People Too Poor to Pay the Bond Set for Minor Offenses, S. Ctr. for Hum. Rts. (Jan. 29, 2016),  When this lawsuit was filed in September of 2015, those who could not purchase their release remained in jail until their first court appearance which could be a week or longer.  Id.

Walker contended that Defendant, the city of Calhoun, would release him immediately if he or a family member paid the bond amount.  See Walker, 2016 WL 361612, at *2.  Walker proposed a class for declaratory and injunctive relief, defined as, “[a]ll arrestees unable to pay for their release who are or will be in the custody of [Defendant] as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation.”  Id.  Walker also alleged that Defendant violated his Fourteenth Amendment rights by jailing him because of his inability to pay the cash bond and sought a declaratory judgment that Defendant violated his rights and those of the class members.  Id.

Judge Harold L. Murphy granted the preliminary injunction and ordered Defendant to implement post-arrest procedures that comply with the Constitution.  Additionally, Defendant could not continue to keep arrestees in custody for any amount of time based solely on the arrestee’s inability to pay a secured cash bond amount.  Walker, 2016 WL 361612, at *14.  The city appealed this order.  Williams, supra.

The Impact of These Bail Systems Used in State and Local Courts

The Prison Policy Initiative conducted a study that portrays the impact that these bail systems are having on our society.  Marie Solis, The US Justice Department Says It’s Unconstitutional to Jail People who Can’t Afford Bail, News Mic (Aug. 22, 2016),  A May 2016 report found that 70% of the 646,000 people held in 3,000 local jails across the country are awaiting trial and have not yet been convicted of a crime.  Id.  These statistics reflect the effect of the money bail system, which is disproportionately affecting the poor.  Id.

The Argument

The Justice Department’s stance that holding arrestees in jail because they cannot afford to make bail is unconstitutional is the first time the government has taken a position about bail systems used in state and local courts in a federal appeals court.  See e.g., Williams, supra; Associated Press, supra.  The Justice Department stated that, “Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment.”  Williams, supra.  The Department also stated that courts must consider a person’s indigence and attempt to find other ways to ensure the arrestees are appearing in court.  Id.  The Department went on to argue that defendants jailed because they cannot afford bail often pose little risk of skipping court appearances and typically are not considered a threat to their communities.  Associated Press, supra.

The city of Calhoun appealed the decision ordering the city to release those arrested on misdemeanor offenses and to make other changes in its post-arrest procedures.  Williams, supra.  The city argues that the pre-set amounts of the city’s bail are tied to the seriousness of each offense, which is allowed under Georgia law.  Id.  The city also argues that removing the cash bail system reduces the incentive for arrestees to appear in court.  Id.


The Justice Department has filed its brief with the United States Court of Appeals for the Eleventh Circuit to determine whether these cash bail policies are in violation of the Fourteenth Amendment’s Equal Protection Clause.  The decision of this case could potentially lead to local and state governments across the country being forced to change their cash bail policies.  If this occurs, will there be an increase of arrestees failing to appear in court as the city of Calhoun argues, or is it true that these misdemeanor offenders pose little threat of skipping court appearances?

*Marleigh Davis is a second-year law student at the University of Baltimore School of Law, where she is a staff editor for Law Review and also a Law Scholar for Professor Closius’s Constitutional Law I class.  She is currently an extern for the Honorable Judge Fletcher-Hill at the Baltimore City Circuit Court.  In the summer of 2016, Marleigh interned with the Women’s Law Center (POARP).

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