The Constitutional Implications of Monetary Bail: Walker v. City of Calhoun

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.

Community Bail Funds and Nullification of Pretrial Detention

Jury trials are full of the unexpected. Witnesses fail to honor subpoenas. Witnesses who show up testify in ways that differ from or flatly contradict their prior statements. A judge’s ruling on an evidentiary issue can keep out a key piece of physical evidence or shut down an important line of questioning (or even an entire witness’s testimony). The deus ex machina of the high drama—the saving grace of the hopeless defense, the torpedo to the ironclad prosecution case—is jury nullification, when a jury acquits a defendant despite, and with full recognition of, his legal guilt. Jury nullification is when a jury renders a verdict not based on the law, but on what they feel the law should be.

Jury nullification is probably as old as the jury trial itself and the subject of continuing debate. One side holds that nullification is a necessary check on tyrannical government power; the other maintains that it’s an illegal usurpation of power. A new development in the conversation over the role of community players in administering criminal justice is the concept of “bail nullification.” As Professor Jocelyn Simonson (Brooklyn Law School) explains in a forthcoming law review article endorsing “bail nullification” (and coining the term), community bail funds can do for bail what nullifying jurors do for verdicts:

In recent years, community groups in jurisdictions across the United States have increasingly begun to use bail funds to post bail on behalf of strangers, using a revolving pool of money. These funds include new charities set up in partnership with public defender offices in Massachusetts, the Bronx, Brooklyn, and Nashville as well as identity-based bail funds that range from a bail fund for transgender sex workers of color in Queens, New York to a bail fund supporting communities of color targeted by policing in Chicago, and bail funds formed by activists within the Movement for Black Lives, who have used crowdsourced funding to post bail for hundreds of protesters and allies in Ferguson, Baltimore, Cleveland, Oakland, and Baton Rouge. Each time a community bail fund pays bail for a stranger, the people in control of the fund reject a judge’s determination that a certain amount of the defendant’s personal money was necessary for the defendant’s release.

I wasn’t aware of community bail funds until I read Simonson’s article—as far as I know, none operates in Colorado—but the nascent practice seems likely to spread. Recent efforts to reform the criminal justice system have focused on sentencing and the perceived unfairness of mandatory minimum sentences, particularly with regard to drug offenses. But as Simonson notes, “For most indigent defendants, bail is the ballgame.” If a defendant is unable to make bail, she is detained in jail pending trial, which may cost the detainee wages (if not her job), custody of her children, and housing. Because most defendants, even those convicted of felonies, end up receiving probation as a sentence, defendants who cannot make bail may secure their immediate release by pleading guilty in exchange for a probationary sentence. For this reason, an unintended but not unexpected consequence of the bail system is to deter defendants from exercising their trial rights. Research has also shown that defendants detained before trial receive harsher sentences than their bail-posting peers and are less likely to see the charges against them dismissed. Private organizations must lobby legislators to effect sentencing reform, which is expensive and comes without certainty of making measurable gains. Bail funds allow reform-minded individuals to intervene directly in the criminal justice system to immediate effect. If community bail funds were to catch on, they would be a potent force, for good or ill.

Bail can be problematic. Everyone charged with a crime enjoys the presumption of innocence until he pleads guilty or a jury or judge finds him so. Bail isn’t punishment, but it has the effect of depriving a defendant of liberty or, if he pays bail, property, without a finding of guilt. The concerns of those pushing for bail reform are real. Bail falls hardest on the poorest, and sometimes, perversely, on the lesser law-breaker. Some defendants, with little or no employment history listed in their jail dossier, post high bonds within a matter of hours, simply by phoning a friend. To draw the inference, I’ve seen drug-pushing middlemen quickly bond out, while addicts linger in custody, unable to post the much smaller bond on a possession charge. I’ve also witnessed defendants fold and plead guilty when their public defender informs them that to roll the dice before a jury they will have to sit in custody for months. Bail can certainly be a blunt instrument, and its effectiveness is debated.

While our country’s system of bail is imperfect, in my estimation the system’s flaws do not outweigh its merits. Defendants in criminal cases routinely fail to show up for court and it’s not uncommon for individuals to pick up new charges while in the community pending trial. Given these realities, a system that handed out personal recognizance bonds (i.e., no-cost bail) across the board wouldn’t do justice either. Consider that safeguards exist to prevent unjust and lengthy pretrial detention: (1) an officer cannot make an arrest without probable cause to believe an individual committed a crime, (2) defendants are typically entitled to a probable cause hearing before a court can detain them pending trial, and (3) many states have speedy trial statutes requiring courts to bring defendants to trial within a period of months. Add to those protections the fact that bail statutes generally require judges to set a bond by assessing the characteristics of a specific defendant and the seriousness of the alleged offense. In the jurisdiction where I practice, Pretrial Services surveys each defendant and assigns a score to gauge the individual’s risk of nonappearance. Such procedural protections reduce the risk of unjust, discriminatory, and overlong pretrial detention.

In Simonson’s view, when members of the community use a bail fund to nullify a judge’s decision, the routine act of posting bail is elevated into a powerful “act of resistance” that “undermine[s] the power of institutional actors.” Simonson depicts community bail funds as a disruptive force in the justice system, but I think her focus on “nullification” is misplaced. By definition, nullification entails the subversion of legitimate authority. There’s nothing necessarily subversive or disruptive about charitable acts that may spur a defendant to take greater accountability for his actions. (It doesn’t surprise me that 95% of the Brooklyn Community Bail Fund’s beneficiaries make their court appearances. Defendants know that relatives and friends may bail them out multiples times if necessary; beneficiaries of a community bail fund likely recognize a bail fund’s generosity is limited.) And while community bail funds are new, the act of posting bail on another’s behalf is not. I’ve listened to enough jail calls to know that often it’s not the defendant himself who cobbles together bail money, but rather his family and friends. Community bail funds may simply act as a gap-filler for defendants who are indigent and don’t have family or friends with means to assist them. In this sense, the actions of community bail funds aren’t comparable to juries who nullify the law. Jury nullification is corrosive to the rule of law. Community bail funds rather operate within legal bounds.

My thought is that community bail funds have the potential to accomplish some good if care is taken to distribute funds to defendants who are likely to provide a positive return on a fund’s investments. I note that bail funds are selective. The Bronx Freedom Fund pays bail only in misdemeanor cases. The Memphis and Nashville Community Bail Funds assist people who “pose little flight or safety risk to the community.” When judges set bail, they calculate risk. The same goes for a bail fund. If too many clients fail to appear for court or commit new crimes, bail is forfeited and the revolving pool of money begins to dry up. If a bail fund has a habit of releasing offenders who commit violent crimes and other serious offenses while awaiting trial its good will in the community will disappear. On the other hand, if bail funds allow indigent defendants to maintain a job and housing while pending trial, and also incentivize good behavior and court attendance, it’s conceivable they could become a fixture in the justice system, and even institutional actors may accept them.