In the same vein as my last post, about the role of community bail funds in reforming bail practices, I’ll touch upon the judiciary’s role in bail reform. The Supreme Court’s last major statement on the constitutional implications of bail, United States v. Salerno, 481 U.S. 739 (1987), might suggest that courts aren’t willing to police bail laws all that strictly. Salerno upheld against Eighth Amendment (excessive bail) and Fourteenth Amendment (substantive due process) challenges, a provision of the Bail Reform Act of 1984 allowing a federal court to detain a defendant pending trial if the government presents clear and convincing evidence that no conditions of release “will reasonably assure . . . the safety of any other person and the community.” Justice Marshall, in dissent, condemned this provision of the statute as “consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state.”
But Salerno is a remnant of a different era—when criminal justice reform usually meant pro-government reform. Perhaps Walker v. City of Calhoun (2016 WL 361612) is a harbinger of a new era, one in which courts are willing to circumscribe the government’s power in the realm of bail. In 2015, Maurice Walker sued Calhoun, Georgia after he was arrested for walking drunk in the middle of road, booked into jail, and told by a police officer “that he would not be released unless he paid the standard $160 cash bond [for] being a pedestrian under the influence.” (Georgia statute classifies “pedestrian under the influence” as a misdemeanor punishable by a maximum fine of $500 and no jail time.) Walker was living off a meager Social Security payout and couldn’t afford to post bond. Instead, he had to wait in jail until his court date the next week. In his suit, Walker claims that the City of Calhoun’s bail policy violates the Fourteenth Amendment. The district court agreed. So does the Department of Justice, whose Civil Rights Division has submitted an amicus brief on behalf of Walker. The case is pending appeal before the Eleventh Circuit.
In a brief three-paragraph analysis that raises more questions than it answers, the district judge found that “[a]ny 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, violates the Equal Protection Clause.” Suggesting constitutional problems not only with bail schedules, but also with monetary bail writ large, the court added that “keeping individuals in jail solely because they cannot pay for their release, whether via fines, fees, or a cash bond, is impermissible.”
The district court’s ruling in Walker sparked a number of questions for me, three of which I’ll enumerate in this post:
1. If courts start to rule in favor of plaintiffs like Walker, will they do so via the equal protection route, the due process route, or some combination of both (à la Obergefell)? In Walker the district court relied solely on the Equal Protection Clause to invalidate Calhoun’s bail scheme. Although there is Supreme Court caselaw indicating that equal protection guarantees indigent defendants certain benefits in criminal proceedings (e.g., free transcripts, Griffin v. Illinois, 351 U.S. 12 (1956)), the Equal Protection Clause isn’t a great fit in this area. As Justice Stewart explained in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1981), “the Equal Protection Clause confers no substantive rights and creates no substantive liberties. The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws.” Calhoun’s bail scheme doesn’t prescribe varying bond amounts depending on the arrestee’s wealth. Under Davis v. Washington, 426 U.S. 229 (1976), the fact that some laws disparately impact certain groups is insufficient for an equal protection violation; there must be discriminatory intent. Monetary bail has a disparate impact on the poor, but no one is claiming that Calhoun’s bail scheme was intended to discriminate against indigent arrestees.
In Griffin and other cases grounded in Justice Black’s principle of “equal justice” (“There can be no equal justice where the kind of trial a man gets depends on the money he has.”), the court’s target isn’t invidious discrimination, the parasite against which the Equal Protection Clause labors. It’s unfairness, which is the rival of due process.
2. Is there a limiting principle, and if there is what is it? Does the analysis apply only to misdemeanors, or does it encompass felonies? Is Walker’s case different because his offense was not punishable by jail? (Bail isn’t punitive, but it does seem anomalous that a person can be jailed before they are found guilty, but not after.) The district court uses such sweeping language, while neglecting to define parameters, you’re left to wonder about the violent offender with a high bond. He’s an indigent man who brutally assaulted his wife, but if he were a hedge fund manager he’d be able to bond out. The only thing keeping this offender in jail is his inability to pay for his release. And according to Walker, “keeping individuals in jail solely because they cannot pay for their release, whether via fines, fees, or a cash bond, is impermissible.” Much depends on what the court means by “solely.”
3. Are bail schedules unconstitutional? Upon his arrest, Walker was assigned a $160 bond according to the Calhoun municipal court’s offense-based bail schedule. Many jurisdictions employ bail schedules, which establish fixed amounts of bail corresponding to specific offenses. Georgia statute permits courts to establish and rely on bail schedules. O.C.G.A. 17-6-1(f)(1). Walker appears to hold that unless a bail scheme considers a variety of factors, including indigence, it is operating contrary to the Constitution. It’s conceivable that a bail schedule could account for a variety of factors—it would look something like the Federal Sentencing Guidelines. Yet, jurisdictions that use bail schedules also permit judges to consider arguments that an individual offender deserves a bond above or below the standard schedule bond. It seems that Walker would have been able to argue for a lower bond when he appeared before a judge. There was no constitutional issue with Walker’s arrest on the pettiest of charges (Atwater v. City of Lago Vista) and he had no right to have bond set the second he was arrested (County of Riverside v. McLaughlin). So I have trouble seeing how Calhoun’s bail scheme operated unconstitutionally in Walker’s case. If Walker had appeared before the judge, and the judge, viewing the bail schedule as a mandate, had refused to consider that other factors including his indigence cut in favor of a personal recognizance bond—that I admit is problematic. But Walker appears to hold that using a bail schedule for the initial setting of bond is unconstitutional if it doesn’t account for an arrestee’s indigence.
I’m curious to see how the Eleventh Circuit handles Walker. If it ratifies the district court, it would set precedent forcing prevailing bail practices to change.