In a new paper, the former attorney general argues that using bail to jail low-income defendants is unconstitutional.
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.
The former attorney general’s entry into this public debate comes at a crucial time in Maryland, where the state’s attorney general is also currently pushing to base pretrial detention on public risk rather than ability to pay. Adoption of such legal reforms could lead to far more pretrial releases if implemented.
In 1991, D.C. began requiring judges set an affordable bail, which has nearly eliminated the use of money in bail setting (and also done a number on the local bail bond industry). Last year, 91 percent of those arrested in D.C. were released pretrial. This does not appear to have resulted in major public safety concerns: According to the Washington Post, over the last five years, nearly 90 percent of those released were not arrested again before their cases were resolved. By providing defendants with outside supervision programs, instead of jail, the district saves more than a million dollars every day and at least $398 million annually, according to Cleveland.com.
Not everyone, however, is so supportive bail reform. University of Pennsylvania law professor Stephanos Bibas told the L.A. Times that even if it “feels wrong to punish people who are not dangerous and who are on the margins of society,” the Supreme Court has not previously ruled that the "equal protection" clause forbids policies that discriminate against poor people.
Former U.S. Solicitor Gen. Paul Clement, who was hired by the American Bail Coalition and the Georgia Association of Professional Bondsmen to counter a lawsuit against wealth-based pre-trial detention in Clayton County, Georgia, goes further, contending that the commercial bail industry allows defendants of all financial means to use their community ties to obtain pretrial release by letting them post bail with only a fraction of the required amount. ”The modern system of bail is fundamentally not about poverty or wealth,” wrote Clement in the brief, “but instead about preserving liberty while ensuring community safety and appearance in court.”
Paul DeWolfe, a Maryland public defender who supports bail reform, points out that there are other, better alternatives to secured financial bail, such as electronic monitoring or unsecured bond (a court fee that’s only paid if the person fails to appear in court or violates the terms of their release). But adoption of these could be slow. “Bail has been relied upon for many years, and culture change is always a challenge,” he says in an email. “As judges become more aware of these tools, we are hopeful that they will reduce their reliance on money bail.”