Is it a crime to be poor?   by Scott Miner

Lightnin’ Hopkins, the most heavily recorded blues musician once wrote a song entitled “It’s a sin to be rich, it’s a low-down shame to be poor”.

The United States Justice Department recently issued a ruling stating that holding defendants in jail is unconstitutional based on the fact that they can’t afford to make bail. The court filing said that it is a violation of the US Constitution Fourteenth Amendment. This is the first time the government has taken a position like this before a federal appeals court.

It’s the latest step by the current presidential administration in encouraging state courts to distance themselves from the process of mandating fixed cash bail amounts with the result of jailing those who are unable to pay.

The Department stated in a friend of the court brief that bail bond customs that end up jailing persons unable to pay for pretrial release is where the violation of the Fourteenth Amendment comes from, citing the Constitution’s guarantee of equal protection

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.

The Department’s civil rights attorneys stated that courts need to consider a person’s indigence and search for other ways of guaranteeing an attendance for a court date. They felt that set bail schedules that permit the pretrial release of only those who can afford to pay, without taking into consideration an individual’s ability to pay unlawfully discriminates against destitute members of society.

Many civil rights advocates have accused local judges of operating modern-day debtor’s prisons (which were banned under Federal law in 1833. The Fourteenth Amendment affirmed the unconstitutionality of the practice in 1983). There are examples of these types of abuses alive and well in today’s society, due to the rise of private probation companies, like Judicial Correction Services.

A woman in Illinois was arrested and taken to jail because she owed a debt related to an unpaid medical bill. Unbeknownst to her, a collection agency had filled a lawsuit against her, and never having received the appearance notice, missed her court date.

Another woman in Alabama spent seven weeks in her local county jail without ever appearing in court. Her crime was a failure to pay the monthly fees mailed to her by the aforementioned Judicial Correction Services.

Until recently, the effort to help the indigent in the question of excessive bail and sentences was led by organizations like the American Civil Liberties Union, the Southern Poverty Law Center, and Human Rights Watch. They’ve sued courts around the country in an effort to force reforms. But the recent filing from the Justice Department’s Civil Rights Division has put chief justices and court administrators on notice that the Feds are joining the fight. U.S. Attorney General Loretta Lynch has made a priority of fighting what she calls “the criminalization of poverty”.

A statement from the ACLU’s racial justice program said “The DOJ is sending a strong message that judges should voluntarily comply and examine closely their policies before they get in trouble.”

It’s a rare move on the Court’s part, because it tries to change policies in courts it does not control. The efforts began with the Civil Rights Division’s looking into Ferguson, Missouri, lately a powder keg of racially related events. Investigators found a court system that emphasized revenue over justice, forcing people into debt (and jail), with blacks bearing a disproportionate burden. The filing reminds judges that it’s illegal to jail people because they cannot pay a fine, a protection safeguarded by Supreme Court decisions.

Back to the case of Maurice Walker: a federal judge in January ruled in Walker’s favor, ordering the city to allow those arrested on misdemeanor offenses be released on their own recognizance (aka “o.r.”) and to make other changes in its post-arrest procedures.

Appealing that order, the city said the preset amounts of the city’s bail schedule are tied to the seriousness of each offense and are specifically allowed under Georgia law.

“A system of unsecured recognizance bonds,” the city said in its appeal,” greatly reduces the incentive for defendants to appear.”

The city is supported by the Georgia Sheriff’s Association and by a group representing the nation’s bail bondsmen. They argue that the Constitution does not guarantee bail, it only bans excessive bail.

“It thus simply cannot be that any defendant arrested for any crime must be immediately released based on a bare assertion of indigence,” the group said in its court filing.

Barry J. Pollack, president of the National Association of Criminal Defense lawyers, said Friday said he applauded the Justice Department’s for making “critically important arguments.”

A spokesman for the defense lawyers group said it believes “pretrial liberty must be the norm and detention prior to trial the carefully limited exception.

An argument can be made for pretrial set bail schedules in that bail is not just for the accused as much as it is for victims, society and the interest of justice. Yes, mistakes can happen, but the catalyst for an arrest is usually probable cause, so therefore, at face value, defensible.

An accused person has a right to a reasonable bail (the key word here is reasonable, the preceding argument being against excessive or unaffordable bail). Society has the right to know that an accused person will show up for trial. History has shown that the most effective way to insure that someone shows up for a court appearance is a fully guaranteed bail bond written by a licensed bail bondsman. An unsecured release, as proposed by the Court’s filing is unenforceable. With absolutely nothing to lose, why would any accused person show up for a court appearance? Only commercial bail bonds guarantee an appearance in court or payment of the full bail amount if an offender fails to appear.

Here at Orange County Bail Bonds, we of course believe in the effectiveness of bail, but have always been willing to work with all our clients in tailoring bail bonds payment options to accommodate any and all economic situations. (see our YouTube video on financing https://www.youtube.com/watch?v=DcXTLB2iqSM  as well as the blog post here from June 14th regarding financing)