This is an important post by Alec Karakatsanis, of Equal Justice Under Law, counsel in a recent victory in a case dealing with unaffordable cash bail. The lawsuit was brought by Equal Justice Under Law and ArchCity Defenders, a non-profit law firm based in St. Louis that has been working for years with homeless and impoverished people in municipal courts in the St. Louis area. The post speaks for itself.
On June 3, 2015, the federal court in St. Louis, Missouri, issued an injunction ending the use of secured money bail in Velda City and a declaratory judgment affirming that the use of secured money bail schedules to detain impoverished people after arrest violates the United States Constitution.
This is a watershed moment in the movement to rid American courts of the scourge of money bail.
On any given day in the United States, there are about 500,000 human beings in cages because they cannot afford to pay money bail. Of the many grotesque features of the legal system created and perpetuated every day by lawyers and judges, the use of money to determine who is caged and who is freed prior to trial remains one of the most cruel, unnecessary, and irrational.
This lawsuit arose out of the arrest of Donya Pierce, a 26-year-old mother of two. Ms. Pierce was stopped while leaving the parking lot of a Walgreen’s blocks from her house because she forgot to turn on her headlights. Ms. Pierce was issued citations for driving with a suspended license, failing to turn on her headlights, failing to produce a driver’s license, and having no proof of insurance. She was taken to jail and told that she would not be released unless she paid $650. Because Ms. Pierce was indigent, she was unable to make the payment. Like so many impoverished arrestees every day, she was in danger of losing her low-wage job and frightened about being away from her young children.
Without thinking about the goals, the consequences, or the legality of these practices, lawyers and judges around the country have been processing thousands of people like Ms. Pierce through their cages and courts every day. So normalized has this brutal treatment of other human beings become, that no significant challenges to this system on due process or equal protection grounds have been made in decades.
Keeping a person in jail because the person cannot make a monetary payment is blatantly unconstitutional, and the American money bail system is thoroughly illegal as it is practiced in almost every American jurisdiction. It has persisted, however, because of the willingness of lawyers and judges to participate in it. This lawsuit, along with several others filed since the start of the year, brings out into the open this dirty secret of American “justice.” Along with a movement of dedicated pretrial justice advocates and communities of those affected by these practices, these lawsuits will force our courts and our society to confront in the open and with intellectual rigor and honesty the devastation that our irrational money-based pretrial detention practices have brought to many of our society’s most vulnerable people.
Getting rid of the use of money bail will be a long fight because entrenched habits and interests do not die easily. Whether we are lawyers, judges, pretrial services providers, or community members, we must all use our passion, our intellects, and the energy that animates our bodies every day to ensure that fundamental principles of fairness, equality, and logic are not merely slogans etched behind us on walls and buildings. We must ensure that they are applied every day in our streets, in our jails, in our courtrooms, and in the daily lives of real people.
You can read more about our work on these and other issues at www.equaljusticeunderlaw.org. You can read other pieces that I’ve written on this and related topics here, here, and here. My most recent piece, Policing, Mass Imprisonment, and the Failure of American Lawyers, is available here.
I love the clarity and passion from folks who are clearly also highly skilled in the more technical aspects of the profession.
The Order in this case is Here: Final Judgment and Injunction. There is a clear summary of the law in the DOJ’s filing of a Statement of Interest in the Clanton Alabama case, which deals with similar issues.
This post is being cross posted by the National Association of Criminal Justice Attorneys, and the Pretrial Justice Institute. (First link is organizational. Blog link to be added).
Some cases that might be useful are:
Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc) (“At the outset we accept the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.”);
Bearden v. Georgia, 461 U.S. 660, 672-73 (1983);
Griffin v. Illinois, 351 U.S. 12, 19 (1956) (“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”);
United States v. Hines, 88 F.3d 661, 664 (8th Cir. 1996) (“A defendant may not constitutionally be incarcerated solely because he cannot pay a fine through no fault of his own.”);
Lee v. Lawson, 375 So. 2d 1019, 1023 (Miss. 1979) (“A consideration of the equal protection and due process rights of indigent pretrial detainees leads us to the inescapable conclusion that a bail system based on monetary bail alone would be unconstitutional.”);
State v. Blake, 642 So. 2d 959, 968 (Ala. 1994).
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