Will The US Justice Department Backtrack On Bail Reform?

What is at stake is the single most vital component of our criminal justice — accountability. If the court upholds the plaintiff’s contention that money bail is unconstitutional, there will be little incentive for a person who has been freed from jail to show up for court. 

by, Jeffrey Clayton

At issue is the snowball effect initiated by then-Attorney General Eric Holder and his Department of Justice in 2015. At that time, he intervened in an Alabama case (Varden v. City of Clanton) essentially contending that poverty alone is a reason for a person who has been arrested to not be held in jail.

This became the first of many copycat lawsuits around the country, each contending the same issue.

The endgame was to establish legal precedent. From a practical standpoint, if the court held in any of these cases that it was unconstitutional to hold an individual who can’t afford bail one minute longer than an individual who can, it would open a Pandora’s Box of federal lawsuits to any individual for whom a money bail has been set.

The net result would spell the end of the bail system.

Fast-forward to today. There are currently four cases — all essentially charging the same thing — at the appellate court level (two in California, one in Houston and one in Atlanta), any of which stands an excellent chance at making it to the U.S. Supreme Court.

The Department of Justice’s continued involvement under Holder, in the specifics of local bail policy was seen by some as puzzling, especially considering their lack of any movement in reforming the federal bail system which had (and has) been widely characterized as broken.

What is at stake is the single most vital component of our criminal justice — accountability. If the court upholds the plaintiff’s contention that money bail is unconstitutional, there will be little incentive for a person who has been freed from jail to show up for court.

If that individual gets out for free and knows that no one is coming to get them, there is, in fact, no oversight. And without oversight and accountability, public safety is put at substantial risk, with potentially dangerous individuals allowed to roam the streets.

The case in Atlanta, Maurice Walker vs. the City of Calhoun, Georgia, was heard last month and was almost immediately returned to a lower District Court on a technicality.

Paul Clement, Solicitor General under President George W. Bush had submitted an amicus brief on behalf of the defense. Considered by many as one of the greatest constitutional litigators of our time, Clement said, “bail is a liberty promoting institution as old as the Republic” adding, “our modern system of bail is not about poverty or wealth.”

Meanwhile, the Clanton case which started the whole thing, concluded with a settlement order that sets bail in all offenses in a monetary amount, with the condition that a judge must review it within 48 hours.

In other words, the use of monetary bail was already established and upheld with the settlement of this case.

A key thing to watch in the weeks and months ahead is what the influence of the Donald Trump presidency, under his new Attorney General, Jeff Sessions and his DOJ, means to the existing court cases and to the concept of bail reform in general. 

About Jeffrey Clayton, Executive Director of the American Bail Coalition: Jeff Clayton joined the American Bail Coalition as Policy Director in May 2015. He has worked in various capacities as a public policy and government relations professional for fifteen years, and also as licensed attorney for the past twelve years.

Most recently, he worked as the General Counsel for the Professional Bail Agents of Colorado, in addition to serving other clients in legal, legislative, and policy matters. Jeff spent six years in government service, representing the Colorado State Courts and Probation Department, the Colorado Department of Labor and Employment, and the United States Secretary of Transportation.

He is also a prior Presidential Management Fellow and Finalist for the U.S. Supreme Court fellows program. Mr. Clayton holds a B.B.A. from Baylor University, a M.S. (Public Policy) from the University of Rochester, N.Y., and a J.D. from the Sturm College of Law, University of Denver.