The question posed by the title to Leon Neyfakh’s Slate post seems rather outlandish.  Is Bail Unconstitutional?  Of course not. It’s ridiculous, as bail is obviously constitutional.  Except when it isn’t.

Neyfakh’s error is, at worst, a minor one that happens constantly on the internets. Non-lawyers fail to recognize that law and procedure vary greatly from jurisdiction to jurisdiction, and they focus on one and extrapolate it to others. The others may be vastly different, but lacking knowledge of this, they assume that if bad stuff happens in one place, it happens everywhere. It’s a flawed assumption.

But what Neyfakh is talking about is the arbitrary fixing of bail by police in Dothan, Alabama.

Anthony Cooper was going to jail because he couldn’t afford to buy his way out. After being picked up for public intoxication at a bus station in Dothan, Alabama, at about 1 a.m. on June 13, Cooper was told that unless he paid $300 in bail money, he would have to spend six days behind bars while awaiting a court hearing. If Cooper, who is illiterate and suffers from mental illness, had had the money on hand, he could have gone free on the spot. But the 56-year-old’s only source of income comes from his Social Security benefits, and he didn’t have $300. And so Cooper, like many down-on-their-luck Dothan residents before him, was locked up.

Cooper was not taken before a neutral magistrate within 48 hours of his arrest for the preliminary determination of whether there was probable cause for his arrest, and whether bail was appropriate.  Apparently, County of Riverside v. McLaughlin never made its way to Dothan in the 24 years since it was decided.

Instead, there was a procedure in place that was deemed locally to be good enough, where “people arrested by local police for misdemeanors and traffic offenses [have] to come up with fixed sums ranging from $300 to $500.” How the police arrive at these bail amounts is unexplained; perhaps it’s based on the charge of arrest. Perhaps it’s how much they like or dislike the defendant. Either way, the defendant has to pay cash bail or sit for at least six days until they go before a judge.

This is unconstitutional.  Does it matter? You bet. A lot of bad things can happen during those six days in jail, like losing a job, an apartment, a car, kids, when payments due aren’t made.  None of these things serves to make a safer, more stable, law-abiding environment for anybody. So yes, it matters and it can be gravely damaging.

Two lawyers, one a 2008 Harvard Law grad, Alec Karakatsanis, and another a “like-minded” Alabama lawyer, Mitch McGuire, sought to end this practice in Dothan.

Specifically, Karakatsanis and McGuire argued, by allowing some people to purchase their freedom while detaining the indigent just because they were too poor to make bail, the city was in violation of the Equal Protection Clause of the 14^th Amendment.

The argument would seem so obvious, too obvious to require it to be made, and yet it had to be made, and resulted in Dothan entering into a settlement.

Last week, in response to Cooper’s lawsuit, the city of Dothan announced that it had changed its bail policy: Going forward, people awaiting hearings in Dothan Municipal Court will no longer be required to pay bail upfront. The city will move to an “unsecured bond” system in which defendants only owe money if they don’t appear in court when they’re supposed to. 

While this addresses the flagrantly unconstitutional aspect of having police hold people for whom bail was arbitrarily fixed by the cops at an amount that bears no relation to any statutory factors, what is still striking is that Dothan still isn’t required to bring arrestees before a judge to decide whether their arrest was on probable cause.

There is a Balkanization of law that often evades recognition when issues arise as to local criminal procedure.  The handling of defendants in Dothan, Alabama, seems absurdly unconstitutional when measured against how defendants are handled in New York, for example. But then, New York lawyers don’t hear about, learn of, what some backwater in Alabama does with its defendants.

At the same time, the lawyers who work in places where such peculiar procedures are used grow inured to their normalcy. They handled defendants this way before the lawyers got there, and it’s assumed that’s just the way it will always be.  That’s how they do things ’round here.

There are, no doubt, reasons why Dothan, Alabama decided to use the procedure of having the police fix bail.  Many areas lack easy access to courts and judges, and refuse to put in the money for the creation of legal infrastructure. Sometimes, it makes perfect financial sense, since judges and courtrooms cost money, and there aren’t enough criminal defendants to be arraigned to justify bringing in a judge more than once a week.

The only problem with doing what makes the most sense for “everybody” is that it produces facially unconstitutional procedures for defendants.  As Neyfakh rightly says, financially capable defendants buy their way out of jail, while the poor sit in jail for the inability to pay some arbitrary sum of money.

That procedures like these, and their analogues, persist is, in many respects, shocking.  This is America. Even in Dothan, Alabama, they have the capacity to learn of, and follow, the requirements of running a constitutional criminal justice system.  They just prefer not to, as it’s a burden on their communities and, well, they’ve been doing it their way forever and it works just fine. At least for the people who run Dothan, if not the people who sit in jail for lack of bail.

The answer, unfortunately for Dothan and all the places like it, is that they too have to show a little respect for the constitutional rights of people arrested. Yes, that means changing their time-honored, if not Constitution-honored, procedures, spending money they would prefer to spend elsewhere, and crafting procedures that adhere to the requirements of how a real legal system is to be run.  That’s the price of arresting people in America. Even in Dothan, the Constitution still applies.