Constitutional Law

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A federal appeals court has upheld a revised cash bail system in Calhoun, Georgia, that required a hearing within 48 hours of arrest to determine whether a person can be released because he or she can’t afford to pay the amount on a bail schedule.

The Atlanta-based 11th U.S. Circuit Court of Appeals ruled in a 2-1 decision on Wednesday, report the Atlanta Journal-Constitution and the Daily Report. The decision overturned an injunction issued by Senior U.S. Judge Harold Murphy.

The judge committed legal error when he insisted on a 24-hour window for a hearing, according to the majority opinion by Judge Diarmuid O’Scannlain of the San Francisco-based 9th U.S. Circuit Court of Appeals, who was sitting by designation. Judge Murphy also erred by adopting an affidavit process for determining inability to pay, O’Scannlain said.

“There is no constitutional basis for the district court’s imposition of its preferred method of setting bail,” O’Scannlain wrote.

The court ruled in the case of Maurice Walker, an unemployed man arrested on a charge of being a pedestrian under the influence of alcohol. Under the system at the time, arrestees who couldn’t make bail got a court hearing on the following Monday, as long as that day didn’t fall on a holiday. Walker was arrested before Labor Day, which would have meant he wouldn’t get a hearing for 11 days. He sued after spending five days in jail, and the city released him.

After the city shortened the hearing period, Murphy ruled that poor arrestees were treated differently than people of means, who could pay bail and be released without having to wait 48 hours.

The 11th Circuit rejected that argument in a section of the opinion that found no need to evaluate Walker’s claim using heightened scrutiny.

The majority said that, under the city’s bail order, “Walker and other indigents suffer no ‘absolute deprivation’ of the benefit they seek, namely pretrial release. Rather, they must merely wait some appropriate amount of time to receive the same benefit as the more affluent. Indeed, after such delay, they arguably receive preferential treatment, in at least one respect, by being released on recognizance without having to provide any security.”

If Walker were correct that wealth should be given the same level of scrutiny as claims based on race, sex and religion, “the courts would be flooded with litigation,” the majority said.

“If the postal service wanted to continue to deny express service to those unwilling or unable to pay a fee, it would have to justify that decision under the same standard it would have to meet to justify providing express service only to white patrons,” the court said. “The University of Georgia would be unable to condition matriculation on ability to pay tuition unless it could meet the same constitutional standard that would allow it to deny admission to Catholics.”

The American Bail Coalition applauded the decision in a press release. Sarah Geraghty of the Southern Center for Human Rights told the Daily Report that the lawyers for the plaintiffs were considering whether to ask for a hearing of the full 11th Circuit.

The ABA had filed an amicus brief in the case that urged the 11th Circuit to affirm the trial court order enjoining Calhoun’s bail system. The ABA House of Delegates adopted a resolution in August 2017 that opposes bail schedules and backs policies favoring release on unsecured bonds.

The case is Walker v. City of Calhoun.

See also:

ABAJournal.com: “There is no constitutional right to cash money bail, 3rd Circuit rules”

ABAJournal.com: “5th Circuit says cash bail system in Texas county is unconstitutional”

ABA Journal: “Bail industry battles reforms that threaten its livelihood”