Bail out.

• Author: Clayton, Jeffrey J.
• Position: Law & Justice - Bail system

AROUND the country, we see stories highlighting the bail system as unfair because it creates two justice systems--one for those who have money and another for those who do not. Embracing that theory, the Justice Department launched a movement in 2015 to end the use of bail schedules by state and local governments. In the existing system, bail is pre-set based upon the alleged crime and the accused is released immediately without a court appearance if that individual posts bail. The Justice Department united with a nonprofit legal foundation called Equal Justice Under Law, which was founded expressly for the purpose of eliminating all monetary conditions of bail. Their efforts have resulted in a national movement that started in a Walmart parking lot and which ultimately may end up in the Supreme Court.

On Jan. 13, 2015, Christy Varden was arrested in Clanton, Ala., in front of a Walmart store, accused of shoplifting, resisting arrest, failure to obey a police officer, and possession of drug paraphernalia. The Equal Justice Under Law attorneys filed a Federal class action lawsuit against the city two days later, alleging that the bail system was unconstitutional because Varden could not afford her bail and because court is in session only on Tuesdays. She would have to wait to see a judge, who, at the time, could decide to reduce the bail amount or simply release her. On Feb. 13, then-Attorney General Eric Holder filed in the case a statement of interest on behalf of the Department of Justice. In a flash, a shoplifting charge in a small town went from a routine police matter to the beginnings of a national constitutional debate on bail.

In his statement, Holder argued that bond schedules, a list of crimes, and bail amounts for each crime used when court is not in session were incompatible with the equal protection clause because they create a two-tiered system of justice. In fact, many courts around the country do not use schedules--they set bail 24 hours a day. Yet, all that do, including Clanton, have an inherent time lag between when the schedule sets bail and when a judge reviews that bail if not posted. In most areas, the delay is a matter of hours or days. Without the schedules, every individual would be detained until court is in session for those locations where court is not held 24 hours a day. The question posed by Holder was this: under the equal protection clause, assuming that schedules discriminate based on wealth (rather than, say, based on alleged conduct), can plaintiffs...