Three federal appeals court judges on Thursday grappled with the potentially far-reaching issue of whether people arrested for minor offenses should remain jailed if they are too poor to post bail.
At issue is the city of Calhoun's use of a schedule that sets bail based solely on the crime being charged — without considering an offender's ability to pay the bond.
During the arguments, the judges appeared to agree that failing to consider an offender’s indigency is, as Judge Adalberto Jordan said, “problematic.” But they often expressed frustration when asking lawyers what practices are constitutional — such as how long may defendants be detained before a determination is made that they cannot afford bail?
The lawsuit was brought by Maurice Walker after he was arrested in the northwest Georgia city in September 2015 for being a pedestrian under the influence of alcohol. Walker, who relies on a $530 monthly disability check, was detained for six days because he could not afford to post a $160 bond, according to court filings.
In January 2016, U.S. District Judge Harold Murphy in Rome declared the city of Calhoun’s practice unconstitutional. He also ordered the city to comply with the Constitution and stop keeping people in custody “for any amount of time solely because (they) cannot afford a secured monetary bond.”
Since that order, Calhoun’s municipal court has allowed people charged with misdemeanors to be released on their own recognizance, Calhoun’s attorney, Sam Lucas, said Thursday. The city also asked the 11th U.S. Circuit Court of Appeals in Atlanta to dissolve Murphy’s preliminary injunction.
Walker, represented by Civil Rights Corps and the Southern Center for Human Rights, is is asking the appeals court to uphold Murphy’s order.
Lawsuits similar to Walker’s that challenge city and county bail practices are pending in other courts across the country, but his case has attracted national attention because it is now one step below the U.S. Supreme Court.
The high stakes are evidenced by legal briefs filed by numerous cities, municipal associations, bail bonds groups and national legal organizations on the issue before the Atlanta appeals court.
The brief filed by the U.S. Justice Department’s civil rights division noted that impoverished people are already in vulnerable situations, and that pretrial custody means the loss of jobs, disrupted families and idleness.
The Georgia Sheriffs Association, the American Bail Coalition and the Georgia Association of Professional Bondsmen enlisted former U.S. Solicitor General Paul Clement to file a motion on their behalf in support of Calhoun’s practices.
The plaintiff in this case effectively wants to abolish monetary bail on the theory that defendants are entitled to immediate release based on an assertion of indigency, Clement wrote. “Nothing in the Constitution supports that extreme position.”
In an unusual twist, Duane and Beth Chapman, who starred in the reality TV shows "Dog the Bounty Hunter" and "Dog and Beth: On the Hunt," attended the arguments to support the city of Calhoun.
“I’m here to help make America safe,” Duane “Dog” Chapman, his dark sunglasses propped atop his trademark long blonde hair, said outside the courtroom.
Beth, president of the Professional Bail Agents of the United States, said, “You can’t allow everybody in jail to be let out for free. There’d be no repercussions, no deterrence, nobody would be out looking for them.”
Inside the courtroom, Judge Bill Pryor called many of the city’s arguments “unpersuasive.”
But Pryor and his colleagues also said they could not understand why Calhoun’s municipal court was now releasing all defendants on their own recognizance without providing a hearing to determine whether they were flight risks or a danger.
Walker’s lawyer, Alec Karakatsanis, told the judges they should forbid any bail system that jails only the poor and allows those who can afford to pay go free. “No period of wealth-based detention is constitutional,” he said.
The court is expected to issue its opinion in the coming months.
