Justice Department: Bail Unconstitutional for Poor Folks

[Brainster]

No surprise, bleeding heart liberals will probably cheer this:

Holding defendants in jail because they can't afford to make bail is unconstitutional, the Justice Department said in a court filing late Thursday — the first time the government has taken such a position before a federal appeals court.

It's the latest step by the Obama administration in encouraging state courts to move away from imposing fixed cash bail amounts and jailing those who can't pay.

Oddly enough, I tend to agree with them on the case at hand:

The filing came in the case of Maurice Walker of Calhoun, Georgia. He was kept in jail for six nights after police arrested him for the misdemeanor offense of being a pedestrian under the influence. He was told he could not get out of jail unless he paid the fixed bail amount of $160.

In this case, it's such a minor offense and the bail is so ridiculously low that it's hard to argue that the threat of its forfeiture would be sufficient to ensure Walker's appearance in court.

But making that a rule is tricky, and the proposal by the Justice Department is logically flawed:

"Fixed bail schedules that allow for the pretrial release of only those who can play, without accounting for the ability to pay," the government said, "unlawfully discriminate based on indigence."

I was not aware that the indigent are a protected class. Second, consider two defendants charged with more serious crimes, requiring heftier bail. Do we let the indigent defendant out on his own recognizance, but not the middle-class one? This defies the whole rationale for bail; a middle class defendant has more ties to the community and is less able to bolt than a homeless person who only needs to cadge enough funds to afford a bus ticket.

 

[johnny karate]

As much as "bleeding heart liberals" love the idea of dangerous criminal roaming the streets, I'm not sure this is going to open the door for that (emphasis mine):

"Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment," the Justice Department said in a friend of court brief, citing the Constitution's guarantee of equal protection.

 

[rjh01]

If it is a minor offence and the person does not have a history of running away and the person can show where they live then the person should be able to be released without having to pay bail. It would be cheaper that way.

Or there should be an on-the-spot fine for such things. The person pays a fine within a certain period and that is the end of the matter. If the person disputes the matter then they risk an even bigger penalty. That way there is little paperwork.

 

[rdaneel]

If it is a minor offence and the person does not have a history of running away and the person can show where they live then the person should be able to be released without having to pay bail. It would be cheaper that way.

Or there should be an on-the-spot fine for such things. The person pays a fine within a certain period and that is the end of the matter. If the person disputes the matter then they risk an even bigger penalty. That way there is little paperwork.

Basically like traffic tickets. There doesn't seem to be any reason why misdemeanors below a certain dollar amount shouldn't be treated the same way.

 

[Beerina]

Getting rid of bail is a terrible response to fix the relatively new problem of proliferation of revenue-generating fines for thirsty, cash-pressed local governments. Better to get rid of the fines, or better yet, the minor crime definitions.

There are movements afoot to do this. Getting rid of bail won't fix the bulk of this problem.

Or flat-out make it illegal to throw someone into prison for not paying a fine, which smacks of debtor's prisons. Rather attach to their income the old fashioned way, as a stopgap to getting rid of the proliferating minor crimes.

 

[psionl0]

He was kept in jail for six nights after police arrested him for the misdemeanor offense of being a pedestrian under the influence.

Is that still a crime punishable by jail in Georgia?

 

[The Great Zaganza]

Debtor's prison is destructive at any level: it costs the state time & money and destroys lives for nothing in return.

 

[marplots]

Hey, if a guy doesn't have enough money to pay his bail and you don't let him out, how is he supposed to steal enough to pay the eventual fine? Let's be sensible here.

 

[3point14]

Or there should be an on-the-spot fine for such things. The person pays a fine within a certain period and that is the end of the matter. If the person disputes the matter then they risk an even bigger penalty. That way there is little paperwork.

On the spot fines are tricky, I think. If one is innocent and poor an on the spot fine encourages one to take the deal and not risk demonstrating one's own innocence.

 

[rjh01]

On the spot fines are tricky, I think. If one is innocent and poor an on the spot fine encourages one to take the deal and not risk demonstrating one's own innocence.

Even if arrested and charged an innocent person might plead guilty.
- Save on lawyers fees
- Lower penalty likely to apply if found guilty.

So your argument, even if true, is not an argument against on-the-spot fines.

 

[3point14]

Even if arrested and charged an innocent person might plead guilty.
- Save on lawyers fees
- Lower penalty likely to apply if found guilty.

So your argument, even if true, is not an argument against on-the-spot fines.

I think anything that gives the rich more options for 'justice' than it gives the poor is not a good thing.

An innocent rich person can afford to run the risk of an erroneous guilty verdict increasing the financial penalty. An innocent poor person may not be able to undertake that risk and cause them to confess to a crime they did not commit due to financial considerations.

Incidentally, it also undermines the 'innocent until proven guilty' doctrine that should underpin all prosecutions.

 

[ddt]

On the spot fines are tricky, I think. If one is innocent and poor an on the spot fine encourages one to take the deal and not risk demonstrating one's own innocence.

In my neck of the woods, this kind of misdemeanors are always done by the prosecutor proposing a deal and that's the end of it, it never comes before court (except the rare ones who dispute the charges). (*)

But really, do I understand it correctly that people who will only ever be charged for a misdemeanor for which the only penalty is a fine, not prison time, are jailed if they cannot post bail? That sounds against the intent of the law.

(*) Funny anecdote: when I lived in Germany, I was charged with driving with a Dutch driver's license and driving a car with Dutch license plates, long after I should have exchanged them. Yes, I knew I was guilty as hell of that. The prosecutor offered me a deal of DEM 300 (which I took). Interestingly, the form specified where the money would go to. Two were preprinted on the form: the Rehabilitation Agency (a Quango tasked with rehabilitation of criminals), another similar non-profit, and in my case, a third was filled in with typewriter (and its box checked): the local association for children with cancer and leukemia.

I quited liked the idea that the money wasn't used to fill the bottomless coffers of the state but used for a specific (and noble) purpose.

 

[Darat]

I think folk have missed a very important word: "Fixed bail schedules". It seems the argument is that it should not be a fixed amount but one based on the ability of the person to raise the amount and the deterrent to not attend trial [losing that amount].

So for someone on the lower end of the scale bail might be set at something like $1000 but for someone on the upper end of the scale set at $1,000,000.

A similar idea was tried in the UK in regards to driving offences back in the 80s. Fines went from being a fixed amount (or on a fixed scale) to being based on a person's income. Sounds fair but of course that meant it hurt the more wealthy as much as it used to hurt the less wealthy. It was soon dropped.

 

[ddt]

Finland does so for fines. For instance, a Nokia executive got a $103,000 speeding ticket.