It’s no crime to be poor. Why then are poor people held in jail because of it? Maurice Walker was held for six days because he couldn’t pay the $160 required by a bail schedule for being a pedestrian under the influence of alcohol. The City of Calhoun, Georgia, used a bail schedule imposed by its municipal court which based release on the amount of the fine plus costs. It made inadequate accommodation for whether the person in custody had the wherewithal to pay.*
The use of bail schedules has its putative virtues. It’s clear, easily applied, gets people out of jail quickly and applies equally to everyone. It also has its issues, foremost of which is that it bears no cognizable connection to the individual in jail. Why does he need bail at all? Does he have the ability to pay bail? The offense of arrest may be the same, but the person arrested isn’t. If you can’t pay the bail, you sit for no better reason than you can’t pay the bail.
In the first round of litigation in the district court, an injunction issued creating a three-tier system. An arrestee could be released by paying bail according to a Standing Bail Order, or be brought before a judge within 48 hours, or, if only charged with a local violation, released on unsecured bail. The Eleventh Circuit rejected the scheme as insufficiently specific.
In the second round, the district court adhered to its merits finding, and crafted an alternative.
If an arrestee indicates that he or she is unable to pay a secured or money bail, arresting officers, jail personnel, or Municipal Court staff must, as soon as practicable after booking verify the arrestee’s inability to pay a secured or money bail by means of an affidavit sworn before an authorized official.
Key to this plan was that the determination had to be made within 24 hours. For the City, this was too short. For Walker, this was too long. The Eleventh Circuit was left to decide, inter alia, two primary issues: whether an affidavit of indigency was good enough for release and whether 24 hours was the proper length of time to jail someone based upon the inability to pay bail.
To reach the crux of the decision, the Circuit rejected the City’s argument that the constitutional right at issue was the Eight Amendment’s Excessive Bail Clause rather than the Fourteenth Amendment’s Equal Protection Clause. While the former would apply to a challenge to an individual bail determination, the latter applied to a categorical challenge.
But then, it raised the question of whether indigency is a suspect classification, and discrimination on that basis required “heightened scrutiny.” The majority (which included Ninth Circuit Judge Diarmuid F. O’Scannlain) held it was not.
The dissent says there is an equal protection problem because: “The person who has money pays it and walks away. The indigent can’t pay, so he goes to jail.” Dissent at 57 (emphasis added). But this hypothetical could apply to any government benefit contingent on ability to pay, including all the examples we used above. To illustrate, let’s simply switch out, by substituting the italicized phrases, the dispensation sought by the hypothetical persons:
“The person who has money pays it and gets express postal service. The indigent can’t pay, so he goes with snail mail.”
“The person who has money pays it and matriculates at the state university. The indigent can’t pay, so he stays home.”
“The person who has money pays it and satisfies his property tax bill. The indigent can’t pay, so he loses his home to a tax foreclosure.”
Any government benefit or dispensation can be framed in artificially narrow fashion to transform a diminishment into total deprivation.
If indigency was to warrant heightened Equal Protection scrutiny, it would implicate myriad governmental services, not just bail. The court rejected the position. The court accordingly saw no reason to insert itself into the choice of whether proof of indigency by affidavit rather than before a judge was preferable, that being a local option.
But the most curious aspect was whether the 24-hour limitation could be imposed for a determination to be made. The Circuit looked to the Supreme Court’s County of Riverside v. McLaughlin holding that a defendant must be arraigned within 48 hours of arrest.** If a person could be constitutionally held for 48 hours without bail being set, then why not an indigent person?
The problem here arises with the immediate release of a person capable of making the scheduled bail payment, while a poor person is held for two days before seeing a judge. Does this comport with Bearden v. Georgia‘s prohibition of treating people differently based “solely” on being poor? While some might not see 48 hours as being a big deal, it’s more then enough to lose a job, lose a house, lose one’s kids.
It appears that the Eleventh Circuit took for granted that the immediate release opportunity afforded an arrestee who could pay the scheduled bail was a “gratuitous” benefit; there was no right being violated as no one had a right to release before 48 hours passed. Thus, there was no Equal Protection violation, but just Georgia being unnecessarily nice to people who could afford to pay bail, while the “rights” of the indigent were sufficiently protected if they saw a judge within 48 hours.
On the other hand, the alternative might be to refuse to release anyone until they appear before a judge so that every arrestee gets to enjoy the accommodations provided by the State of Georgia for the first 48 hours. It’s not fun to be poor. It’s also no fun to be in jail, especially when the only reason is that some other guy can’t afford bail and so you can’t get out either.
*The original system allowed the defendant to seek release upon arraignment, except that arraignment might not happen until ten days later such that he would spend that period of time in jail.
**For Scalia haters, Nino dissented, holding that an originalist understanding would require a bright line 24 hour test for arraignment or release.