Equal Justice Under Law and other bail reform proponents have offered a number of cases as proof of their success in getting rid of the bail system. With cherry-picked quotes often taken out of context, one would think that bail
was being eliminated city by city. In review of these cases, it couldn’t be further from the truth. Over and over again, courts have repeatedly upheld the constitutionality of bail and bail schedules. These cases have not even challenged the constitutionality of bail as groups like Equal Justice Under Law would have you believe. Instead they challenge specific (usually small town) courts that have outdated bail policies that do not comply with state or federal law.
Let’s look at Walker v. City of Calhoun, an ongoing case out of Georgia. Here, a 54-year-old indigent man was arrested for being a pedestrian under the influence. He was held in jail for 6 days prior to being released because he could not afford to pay the $160 cash bond required for this type of crime. The City of Calhoun only held court once a week on non-holiday Mondays. Walker was arrested on the Thursday prior to Labor Day meaning he would be held an additional several days since court was not in session on the Monday following his arrest.
The attorneys on behalf of Mr. Walker posed the question “Whether a bail practice that results in the incarceration of indigent individuals without meaningful consideration of their ability to pay and alternative methods of assuring their appearance at trial violates the Fourteenth Amendment?” This question does not address whether bail itself is constitutional, nor do the plaintiffs even attempt to question its constitutionality. The plaintiff specifically states that they are not asking the court to find bail unconstitutional and are not questioning whether a city has the right to follow a fixed bail schedule. Instead, they are asking the court to consider whether a person’s indigence should be taken into consideration when setting bail.
As we know from previous cases and the bail reform act, the issue has already been decided. Yes, a person should be entitled to a bail review hearing where a judge should take into consideration the seriousness of the crime, the person’s criminal background and whether a person can afford the bond. Furthermore, the courts long ago mandated that a person have a right to a hearing within 48 hours of their arrest if they are unable to post bail. It is unfortunate that there are jurisdictions like the City of Calhoun that have failed to follow the letter of the law, but this does not mean that bail in and of itself has anything to do with the problem. The inequities that our criminal justice system presents are deep rooted and multi-faceted. There is no quick fix. In reading these bail reform cases you start to understand that there are issues in courtrooms throughout the country that need to be rectified but they aren’t the issues that bail reform proponents would have you believe.