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Money Bail System Undercuts Public Safety, Prosecutors Say in Appeals Court Filing

November 21, 2017 —

Amidst a growing movement resisting the unjust use of money bail around the country, more than 25 current and former prosecutors and law enforcement officials have expressed deep concerns about the ongoing use of this practice.

In a new amicus (friend of the court) brief filed by Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) and organized by Fair and Just Prosecution (FJP), these justice system leaders from around the nation argue that the City of Calhoun, Georgia’s practice of detaining misdemeanor defendants before trial based solely on their inability to pay money bail “offends the Constitution, undermines confidence in the criminal justice system, impedes prosecutors, and fails to promote safer communities.”

Former Acting Attorney General and Deputy Attorney General Sally Yates, currently a distinguished lecturer at Georgetown Law, along with current sitting District Attorneys Mark Dupree (Kansas City, Kan.), Stanley Garnett (Boulder, Colo.), Mark Gonzalez (Corpus Christi, Texas), Christian Gossett (Winnebago County, Wisc.), David Soares (Albany, N.Y.), Raúl Torrez (Albuquerque, N.M.) and Cyrus Vance (New York County, N.Y.), State Attorney Marilyn Mosby (Baltimore, Md.), and Prosecuting Attorney Carol Siemon (Ingham County, Mich.), and former Police Chiefs William Lansdowne (San Diego and Richmond, Calif.) and Brendan Cox (Albany, N.Y.) are among the signatories to the amicus brief filed Monday in Maurice Walker v. City of Calhoun, Georgia, a class action suit now pending before the U.S. Court of Appeals for the Eleventh Circuit.

“A bail system that indiscriminately jails indigent individuals charged with misdemeanors based solely on their economic status while immediately releasing those who can afford to post a bond is inconsistent with our country’s promise of equal justice,” Yates said.

The brief was drafted by ICAP Senior Litigator Mary McCord, who served for 20 years as a federal prosecutor and was Acting Assistant Attorney General for National Security before joining the Georgetown Law faculty. In August, ICAP filed a similar amicus brief on behalf of prosecutors in ODonnell v. Harris County, a suit challenging the money bail system in that Texas county.

“As career prosecutors, we know that using bail to keep poor people detained pretrial solely based on their inability to pay not only offends the Constitution, but also is counterproductive from a law enforcement perspective,” McCord said. “We depend on victims, witnesses, and jurors to participate in a criminal justice system they see as fair, and a system that determines freedom on the basis of wealth undercuts that notion.”

FJP Executive Director Miriam Krinsky, a former federal prosecutor and one of the signatories, added: “It is well settled that alternatives to money bail – in place in jurisdictions around the country -- are not simply the right approach, but are also a more sensible strategy that keep our communities safe by using individualized determinations of risk of flight and dangerousness. It is heartening to see prosecutive leaders coming together to speak out on the need to move away from a broken cash bail system and promote fair and equitable bail practices that enhance trust in, and contribute to the legitimacy of, our justice system.”

Although the brief acknowledges the City of Calhoun’s initial response to the suit – adoption of a standing bail order requiring bail hearings within 48 hours and the release of those who can establish the inability to pay – it argues that detention for even a limited amount of time can “yield serious harms such as loss of a job or disrupted family connections.” The brief further argues that the City’s standing bail order does not go far enough to dispel the harm that the inequitable treatment of indigent misdemeanor defendants causes to the public’s perception of the criminal justice system, and thus to law enforcement efforts.  

The brief points out that this is especially so because some of the offenses to which the order applies are not even offenses for which jail time is possible. Such was the case for the plaintiff, Maurice Walker, who spent six days in detention for being a pedestrian under the influence of alcohol, which is not a jailable offense. Additionally, because the bail amounts are set at the exact figures of the fines applicable for the charged offenses (plus surcharges), the schedule contributes to perceptions that bail is being used as a mechanism to extract a fine from the defendant prior to a finding of guilt.  

The full list of 28 signatories is listed in the amicus brief.

Watch Mary McCord break down the problems with money bail in our new "Legalese" video below:

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