The Justice Department sent its clearest message yet last week that the agency considers jailing people who can't afford to post bail a violation of their constitutional rights. Civil rights lawyers from the department weighed in on a federal court case, Walker v. the City of Calhoun, Ga., currently before the 11th Circuit Court of Appeals.
Maurice Walker, 54, was arrested by Calhoun police in September 2015 for being a "pedestrian under the influence." Because he couldn't afford to pay the $160 preset bail required by the city, he was held in pre-trial detention for six days. He sued the city last year while he was still being held, in a class action lawsuit alleging that the city's bail rules are a violation of the civil rights of Americans living in poverty. He's being represented by two groups: Equal Justice Under Law and the Southern Center for Human Rights.
The appeals court's decision on Walker's case could set an important national precedent: there are some 646,000 people locked up in local jails around the country, according to the Prison Policy Initiative. Of those, 70% are like Walker, being held while they wait for trial. The court's ruling is also likely to have huge implications for people of color, who are disproportionately targeted for arrest and detention by police.
The Justice Department's amicus brief—signed by agency civil rights lawyers, including Vanita Gupta, Principal Deputy Assistant Attorney General, and John A. Horn, the United States Attorney for the Northern District of Georgia—argues that the city of Calhoun violated Walker's Fourteenth Amendment rights by detaining him because he couldn't afford bail:
In Walker's case, a judge was not involved in determining his bail or whether he should be held–the city uses pre-set bail amounts based purely on the severity of the crime. His attorneys argue that the court should have assessed whether he posed a risk to the community, if he was deemed a flight risk, and considered his level of poverty before setting a bail amount in the first place.
The Fourteenth Amendment holds that a court can't jail an individual without "meaningful consideration of indigence"–meaning the court must consider a person's financial means and whether there are alternatives to incarceration before a case goes to trial.
The DOJ brief also refers to a 1956 Supreme Court case, Williams v. Illinois, which the department says set the standard for how people should be treated before a trial begins:
And goes on to talk about the 1966 Bail Reform Act, which the department says is the standard followed by federal courts, stating, “judicial officer may not impose a financial condition that results in the pretrial detention of the person”:
The department's civil rights lawyers argue that bail requirements like the city of Calhoun's unnecessarily increase the number of people being held in already overtaxed prison systems:
And have a lasting impact on low-income people who are likely to be in financial positions where a few days spent in jail can cost them a significant amount in earned wages or missed payments:
On top of those losses and the wider social impact of money-based bail systems, studies have shown that being detained before a trial can significantly impact its outcome. A study released this week from the National Bureau of Economic Research found that being released before trial leads to defendants being 15.6% less likely to be found guilty, the International Business Times reported, and they're 12% less likely to plead guilty.
That could be because being held makes it more likely that a defendant will plead guilty because of the psychological pressure of being detained, whether or not they actually are guilty, the paper says, or because judges and juries are likely to be biased against a defendant who enters the courtroom in shackles, clearly having been held in jail.
Lawyers for the city said that city officials are in line with state law, and that abandoning the preset bail system could mean fewer suspects honoring their court dates. “We believe the city of Calhoun is in the right and is following state law,” Andy Davis, a lawyer representing the city of Calhoun, told Fortune.
The Justice Department's move comes amid a wider national conversation about bail laws and follows two damning agency reports of the police departments in Baltimore and Ferguson, Missouri, which were both found to have frequently detained suspects without filing any charges against them. And as with Maurice Walker, those suspects in Baltimore and Ferguson could be held for days before ever seeing a court. In those cities, people of color were disproportionately targeted for arrest and detention and spent more time in jail than their white counterparts.
"Current bond practices are unclear and inconsistent. Information provided by the City reveals a haphazard bond system that results in people being erroneously arrested, and some people paying bond but not getting credit for having done so," the Ferguson report said, adding:
The practices for setting bond are similarly erratic. The Municipal Judge advised us that he sets all bonds upon issuing an arrest warrant. We found, however, that bond amounts are mostly set by court staff, and are rarely even reviewed by the Judge … In a number of these cases, the bond amount far exceeded the amount of the underlying fine. The court’s bond practices, including the fact that the court often imposes bonds that exceed the amount owed to the court, do not appear to be grounded in any public safety need.
Those reports are in line with data from the Sentencing Project showing 60% of America's prison population is made up of people of color. The disparity in experience with bail laws exacerbates issues of communities of color being arrested and detained more often than white people, the Project found.
Pretrial Justice Institute, an advocacy group which supports bail reform and for an end to money bail programs nationwide, has been watching the case and the environment it's unfolding in.
The institute, drawing on several academic studies, including in the journal Criminology and in the Journal of Ethnicity in Criminal Justice, says that there's a significant gap between the bail amounts set for people of color compared to white people. They looked specifically at the difference between bail bonds for white, Latino, and black men:
"I think its hugely significant," said Cherise Fanno Burdeen, the institute's C.E.O, of the Justice Department's contribution to the case. "I think even backing up from the department issuing in amicus brief in this case, I think the fact that there’s a case to be issuing an amicus brief in is significant. We haven’t seen real litigative work in bail reform as part of our strategy in probably 35 or 40 years."
Fanno Burdeen says the current bail system in Calhoun and in many parts of the country result in a criminal justice system that persecutes low-income people by forcing them to remain in jail while their wealthier counterparts would be able to post bail and walk free while awaiting trial.
She says there are better ways to hold people accountable and make sure they return to court when their cases go to trial. Some states around the country have begun working toward bail reform: in July last year, New York City announced that non-violent, low-risk suspects who can't afford bail will be released under a supervised program instead of being detained. Washington, D.C. no longer uses money bail in their court system–instead, people who don't pose a violent threat are released into a supervised program until their court date. In 2015, 91% of suspects were released into these programs, the Washington Post reported. Of those, 90% made it to their court date without being re-arrested, according to the D.C. Pretrial Services Agency.
And Fanno Burdeen says the Pretrial Justice Institute is working on pilot programs with the city of Denver, Yakima County, Wa., and the state of Delaware that encourage more supervised release, and for courts to use risk assessment tools as a more objective, case-by-case measure of which suspects could pose more of a risk if they're released.
Those risk assessment tools usually use a list of 7–9 factors for courts to consider, she told me, including age at first arrest, prior convictions, and whether those convictions were for violent crimes. But, importantly, those factors aren't weighted equally, and there's room for considering individual circumstances—for example, it would likely assess someone having been convicted of a crime 10 years ago as less of a risk than someone convicted two years ago.
For Akeem Browder, even if the case in Georgia succeeds and cities and states around the country take notice, it's too late for his 22-year-old brother Kalief, who died by suicide after spending three years at New York City's Rikers Island, where he was being held because he couldn't afford the $3,000 bail. His repeated beating by jail guards was caught on security camera footage obtained and published by The New Yorker. Browder was never charged with a crime, and his family is now suing the New York City Department of Corrections.
"The way that we're supposed to run the system in America is that you're innocent until you're proven guilty," Akeem Browder told me.
Between bail laws that dragged Kalief into the system because he couldn't afford to pay, and New York City's treatment of juvenile suspects (which, until recently, sent 16 and 17-year-olds to adult prisons, even for pre-trial detention), Akeem Browder said the criminal justice system failed his brother.
"No one really knows what they would go through until your family member or your brother goes to jail. In the moment, none of the aspects of the case seemed fair," Browder said. He told me his family is still dealing with the aftermath of his brother's incarceration and death. He said that after his brother was released, the family struggled to get him the psychological and day-to-day support he needed to re-adjust to life after Rikers.
The Department of Justice submitted a less in-depth statement of interest in another bail challenge last year, the first time they had officially taken a stand against pre-trial detention based on pre-determined bail amounts.
Andy Davis, the lawyer representing the city of Georgia, and the Southern Center for Human Rights, representing Walker, did not respond to requests for comment.