Mary Hooks, co-director of Southerners on New Ground, at the bonding station at Fulton County Jail. (DAVID BARNES / DAVID.BARNES@AJC.COM)
Photo: The Atlanta Journal-Constitution
Photo: The Atlanta Journal-Constitution

Court upholds jail for some too poor to post bail

The 11th Circuit upheld Calhoun’s cash bond policy

The federal appeals court in Atlanta has upheld as constitutional the city of Calhoun’s practice of jailing some low-level offenders unable to post bail.

In a 2-1 decision, the 11th U.S. Circuit Court of Appeals said Calhoun’s revised bail policy provides indigent defendants enough due process protections. Adopted shortly after its prior practice was challenged, the new policy requires defendants who can’t post bail to appear before a judge within 48 hours of arrest, be represented by court-appointed counsel and be able to object to a bail amount on claims of indigency.

Critics expressed disappointment in the ruling, which still allows the poor to spend time behind bars before they can make their case,while those with means can post bail and walk out free.

“A better, more morally defensible and economically sound response would be to follow the lead of a number of jurisdictions across the country that are moving away from wealth-based detention altogether,” said Southern Center for Human Rights lawyer Sarah Geraghty.

Southern Center for Human Rights lawyer Sarah Geraghty. (Photo courtesy of the Southern Center for Human Rights)
Photo: The Atlanta Journal-Constitution

But the decision drew praise from the bail bond industry, which had joined forces to defend Calhoun’s new policy.

“We never doubted the constitutionality of bail and bail schedules,” said Jeff Clayton, executive director of the American Bail Coalition.

The coalition and the Georgia Association of Professional Bondsmen hired former U.S. Solicitor General Paul Clement to argue the case before the 11th Circuit.

“My clients are pleased that the 11th Circuit has reaffirmed that the longstanding practice of using a bail schedule backed with a prompt hearing for those who cannot afford to post the bail required by the schedule comports with the Constitution,” Clement said.

Paul Clement, the former U.S. solicitor general, represented the bail bond industry before the 11th U.S. Circuit Court of Appeals.

The litigation began after Maurice Walker, a 54-year-old unemployed man with a mental health disability, was arrested on Sept. 3, 2015, for being a pedestrian under the influence of alcohol. The misdemeanor offense, which does not call for any jail time, can be punished with a fine of up to $500.

When Walker was taken to jail, he was told he would not be released unless he posted a $160 bond. Walker, whose only income consisted of $530-a-month Social Security disability payments, said neither he nor his family could pay it.

At that time, Calhoun’s practice was to detain defendants who were unable to post bail until court was held on the following Monday, provided it wasn’t a holiday. In Walker’s case, because the following Monday was Labor Day, he would have had to spend 11 days in jail before he saw a judge.

After five days in custody, Walker sued the city, contending its policy was unconstitutional because it jailed the poor because they couldn’t pay a small amount of money. The city released Walker shortly after the suit was filed.


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Calhoun later changed its bail policy to the one approved Wednesday by the 11th Circuit.

Writing for the majority, visiting Judge Diarmuid O’Scannlain threw out an injunction against Calhoun’s policy issued by a Senior U.S. Judge Harold Murphy in Rome. That injunction allowed newly arrested detainees in Calhoun to fill out sworn statements of indigency, which then had to be reviewed by a clerk, jail official or a judge within 24 hours.

O’Scannlain noted that the U.S. Supreme Court has determined probable cause hearings held within 48 hours of a defendant’s arrest were prompt enough to satisfy due process.

Because a suspect can be held in custody for 48 hours before probable cause behind the arrest is established, O’Scannlain wrote, “it stands to reason that the city can take the same 48 hours to set bail for someone held with probable cause.”

The 11th Circuit U.S. Court of Appeals in Atlanta upheld Calhoun’s cash bond system.
Photo: Bob Andres?AJC

O’Scannlain, joined by Judge Julie Carnes, also said the city may have good reason to require a hearing, instead of a “paper-based process,” to determine indigency.

“It may reasonably prefer that a judge have the opportunity to probe arrestees’ claims of indigency in open court, where the importance of honesty may more clearly be impressed on the arrested than would be the case in filling out an affidavit at the jailhouse,” O’Scannlain wrote.

In light of the 11th Circuit’s ruling, jurisdictions holding detainees for longer than 48 hours before conducting an inquiry into their abilities to pay bail would be wise to revise their policies, said Geraghty, one of Walker’s attorneys.

She said Atlanta, Chicago, New Orleans and Nashville are among the jurisdictions that have moved away from cash bail.

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