Justice Department files brief urging no bail for poor people

The Department of Justice filed a friend of the court brief in the case of an indigent Georgia man who spent six days in jail for public intoxication because he couldn't afford bail.  The DoJ believes that all poor people should be allowed release on their own personal recognizance if they can't afford the bail.

NBC News:

Justice Department's civil rights lawyers said in their brief that courts must consider a person's indigence and look at other ways of guaranteeing an appearance in court.

"Fixed bail schedules that allow for the pretrial release of only those who can play, without accounting for the ability to pay," the government said, "unlawfully discriminate based on indigence."

A federal judge in January ruled in Walker's favor, ordering the city to let those arrested on misdemeanor offenses be released on their own recognizance and to make other changes in its post-arrest procedures.

In appealing that order, the city said the preset amounts of the city's bail schedule are tied to the seriousness of each offense and are specifically allowed under Georgia law.

Related: Reformers Seek to Undo Growth of New 'Debtors' Prisons'

"A system of unsecured recognizance bonds," the city said in its appeal," greatly reduces the incentive for defendants to appear."

The city is supported by the Georgia Sheriff's Association and by a group representing the nation's bail bondsmen. They argue that the Constitution does not guarantee bail, it only bans excessive bail.

"It thus simply cannot be that any defendant arrested for any crime must be immediately released based on a bare assertion of indigence," the group said in its court filing.

Barry J. Pollack, president of the National Association of Criminal Defense lawyers, said Friday said he applauded the Justice Department's for making "critically important arguments."

Bail is meant to ensure the appearance of a defendant in court.  But it also has the practical effect of taking someone off the streets who may be a danger to others.  That apparently is not a criterion for releasing a prisoner, although you would think a serial killer or someone arrested for murder for hire would be an exception.

But what about a gang-banger who can prove no income and is arrested on drug or weapons charges?  Ostensibly, he would be able to walk out of the courthouse a free man in the afternoon and participate in a drive-by shooting that evening. 

I can see the idea of no bail for all defendants – rich or poor in many misdemeanor cases.  But great care should be taken when adopting new rules on bail when it comes to serious felonies.  Put bluntly, I don't trust the do-gooders to get it right, and we're liable to see many defendants who belong in jail released unnecessarily.

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