Eric Holder Wants to End Bail as We Know It

Nationwide, a movement is growing to address what civil rights advocates have called a “wealth-based detention scheme”—the traditional bail system, which often holds arrestees who can’t scrape together the funds to post bail, even for minor offenses. About 450,000 Americans are held in jails each day because of inability to pay, according to the Southern Center for Human Rights in Atlanta and Equal Justice Under Law, a Washington-based civil rights group.

Eric Holder, the former attorney general, has now added his voice to this chorus of concern. In an October white paper to Maryland Attorney General Brian E. Frosh, Holder argues the state’s pretrial detention system is unconstitutional because it largely jails people based on their inability to post bond. To address this situation, Holder argues that judges must only set bail that individuals can actually afford, while denying bail to those deemed likely to be a flight risk or a danger to public safety.

The report, co-authored with five of Holder’s colleagues at the law firm Covington & Burling, is focused on court practices in Maryland, where judges often set unaffordable bail to defendants as a way to keep people in jail. A 2014 state commission found that pretrial detainees made up two-thirds of the state’s overall inmate population; 68 percent of these detainees were incarcerated solely because they could not post their bail bond. But as Covington & Burling spokesperson David Schaefer observes in an email, “these issues are not limited to Maryland, and indeed, the memo references various court cases around the country.”

Holder’s memorandum contends these long-standing court practices hit the poor the hardest, and thus violate the 14th Amendment’s equal protection and due process clauses. In Baltimore City, for example, the average bail in 2013 for low-risk defendants was $51,000—nearly double the city’s median income at the time, according to a 2016 Abell Foundation report. Holder points out such bail standards effectively force the average Baltimore defendant to choose between jail or losing nearly a fifth of their annual salary to a bail bondsman. (Bail bondsmen’s nonrefundable fees are typically 10 percent of the bail amount.)

To address this problem, the white paper argues that bail should be set with an “individualized consideration of ability to pay,” so that, if used at all, it is solely to ensure people have sufficient incentive to show up to court and refrain from criminal conduct.

In recent years, legislative efforts to reform bail along the lines of Holder’s vision have been popping up across the country. Since 2013, Colorado and New Jersey have moved to prioritize perceived flight and community risk, rather than ability to pay, in deciding a detainee’s release. And New Mexico is now voting on a ballot initiative that would ban judges from imposing bail amounts poor defendants cannot afford.