Justice Department argues fixed-cash bail unconstitutional, disproportionately impacts poor

Keeping people locked in jail before trial without considering whether or not they can afford their bail is unconstitutional, according to a brief filed last week by the U.S. Department of Justice.

"Bail practices that fail to account for indigence are not only unconstitutional, but also conflict with sound public policy considerations," the Justice Department argues.

In the case out of Georgia, Maurice Walker was held in jail for six days on charges of being drunk in public (or more precisely "a pedestrian under the influence"). He was given a bail of $160.00 based on a "fixed-bail" schedule.

The Justice Department argues that "fixed-bail" policies — those that require a certain amount of bail based on the crime and do not consider a defendant's ability to pay — are a violation of the 14th Amendment's equal protection clause. In other words, justice is not served when release or incarceration depends solely on a person's ability to pay.

The Inlander wrote about the issue of money bail last year. In that story, David Hill, who was homeless, was charged with felony drug possession. His bail was set at $500, which means it would have cost him $50 to get out with the help of a bondsman. Instead, he sat in jail for 11 days costing taxpayers $120 per day. He ended up pleading guilty to a lesser charge.

(The Justice Department's stance on fixed bail comes on the heels of its announcement to phase out the use of private federal prisons.)

However, there is at least one key difference between Washington state's and Georgia's systems. In the Georgia case, Walker was required to pay a cash-only bail. Washington's system allows defendants to pay in cash or bond from a bail bond company. (There is no bail schedule for felony charges in Washington.)

"Of course, the bond we set is not always affordable by the defendant. Hence the issue," Spokane Superior Court Judge Maryann Moreno writes via email. "We are attempting to set up a system utilizing conditions and monitoring instead of bail."

Moreno also notes that the discussion happening over in Georgia omits any mention of danger to the community or of not reappearing for court.

"Without consideration of risk, and just considering finances, we have dangerous wealthy individuals posting bond and being released and non-dangerous poor individuals stuck in jail," she writes.

A report out this May from the Prison Policy Initiative revealed that 70 percent of the 646,000 defendants held in local jails nationwide were awaiting trial — innocent in the eyes of the law.

"One reason that the unconvicted [jail] population in the U.S. is so large is because our country largely has a system of money bail, in which the constitutional principle of innocent until proven guilty only really applies to the well-off," according to the Prison Policy study.

According to local data, half of Spokane's jail population in 2014 was awaiting trial, and a one-day snapshot in June 2015 showed that 72 percent of inmates were being held on bail. 

A subcommittee within the Spokane Regional Law and Justice Council is tasked with addressing bail reform. One fix the group is tossing around is an improved risk-assessment tool that will give judges more information for each individual defendant on circumstances possibly fueling the alleged crime: homelessness, addiction and mental health issues, for example. That tool is scheduled to roll out this October.

Another reform is a more robust pre-trial services department, which will allow judges to release people to community supervision rather than hold them in jail. Spokane County is currently hiring more pretrial services employees.

"The repercussions of unnecessary pretrial detention that disproportionately affect indigent individuals can reverberate in other parts of the criminal justice process and impede the fair administration of justice," the DOJ argues in its brief. 

The impact of pretrial detention is well documented, as the DOJ explains. Incarcerated defendants are placed at an extreme disadvantage: 

• Innocent defendants in jail could be more likely to plead guilty just to get out of jail. 
• Incarceration impedes defendants' ability to aid in their defense (gather evidence, contact witnesses, etc.).
• Defendants who can't afford bail could end up spending more time in jail pretrial than they would if convicted and sentenced for the original crime.
• Those locked away pretrial could lose their jobs and possibly family relationships.