Bail Reform. Attorney organizations like Equal Justice Under Law have decided that the only way to fix a criminal justice system that is discriminatory is through these two magic words: bail reform. They have touted successes across the nation of cases that have allegedly brought the hammer down on cash bail. They have begun announcing defeat to bail systems altogether. The only problem is that their “successes”, their “defeats” aren’t really what they seem. One look into these cases that they claim will eliminate the cash bail system as unconstitutional proves that it is cloak and mirrors. It is carefully picked words of a lengthy opinion that truly says nothing about the constitutionality of bail other than that it in fact, constitutional.We will start with the recent Varden v. City of Clanton; Case No.: 2:15-cv-00034-MHT-WC. Equal Justice Under Law brought a class action suit against the City of Clanton for what they deemed was an unconstitutional bail schedule. In fact, they specifically brought suit to determine “Whether a ‘bail schedule’ setting standard amounts of cash required up front to avoid post-arrest detention violates the Fourteenth Amendment’s due process and equal protection clauses.” Despite a settlement in the case that had nothing to do with the actual constitutionality of a fixed bail schedule, as well as an opinion issued by Judge Myron H. Thompson that only confirmed that bail schedules are constitutional, the attorneys still claim a success against bail and a win for bail reform.
It is important to understand the background of the case. Plaintiff Christy Dawn Varden, 41 years old, was arrested for shoplifting, resisting arrest, failure to obey an officer and possession of drug paraphernalia. Under the City of Clanton’s original bail schedule she was required to post $500 bond on each of her charges. This bond would allow her release. She, along with all defendants, had the option to retain a bail bondsman, which would typically charge 10% of the total bond. Ms. Varden is indigent and could not afford to post bail. She was required to stay in jail until a hearing the following Tuesday at 3:00 pm. The City of Clanton held hearings once a week on Tuesday afternoons. The hearings were done by videoconference and these hearings were closed to the public. Attorneys were allowed to be present but there was no audio available or transcripts made public.
The class action lawsuit was eventually settled. The settlement included terms that the city must abide by going forward. These terms included mandating a bail review hearing within 48 hours of arrest. This bail review hearing would allow a judge to take into consideration a person’s indigent status as well as other factors. A judge could also decide to release a defendant on his or her own recognizance. In the settlement, the court agreed that they would make hearings available to the public and would follow and open court policy.
United States District Judge Myron H. Thompson in his opinion agreed that the settlement was fair and was impressed with how quickly the city was able to make changes. The judge did not in any way find that a fixed bail schedule was unconstitutional, but instead agreed that defendants have the right to a bail review hearings and that there must be meaningful consideration for other possible alternatives to bail. The settlement did not state in any terms that a fixed bail schedule was unconstitutional but instead remedied the issues that Clanton had with their pre-trial requirements. In fact, Clanton still has a bail schedule, which is posted as a part of the settlement agreement.
It is unfortunate that bail has fallen victim to a group of opponents that cannot see the bigger picture. Bail is a constitutional right. Without bail we put the public’s safety in jeopardy and we put the defendant’s rights in jeopardy. Simply because there is an option to be released on your own recognizance does not mean that you cannot have bail requirements. A judge has the right to consider all options, all alternatives. Limiting the arsenal that a judge has to protect the public and ensure that a defendant will show up at future court appearances, takes away their autonomy and their ability to uphold the constitution. Let’s not rely on sound bytes to decide what a case stands for. Let’s get to the bottom of the issue.