Criminal Law

BLOG: Cash Bail, Equal Justice, and the Constitution

One of our most cherished constitutional ideals is equal justice under the law.   

No matter one’s race, religion, upbringing, no matter how much money one possesses, the Constitution’s guarantees of due process and equal protection mean that our criminal justice system must give every person accused of a crime a fair opportunity to safeguard their liberty.   

That principle will be tested this morning when the entire Fifth Circuit hears an important case, Daves v. Dallas County, a constitutional challenge to Dallas County’s system of secured money bail brought by six plaintiffs who were jailed before trial under pre-set bail they could not afford.   

Shannon Daves, an unemployed, homeless woman, was arrested for shoplifting.  After a hearing that lasted twenty seconds, the judge set bail at $500.  Because she could not pay it, Daves was locked up and held in solitary confinement, despite the fact that she was presumed innocent of the chargesThe treatment Daves received was not because of the individual facts of her case. It was because of Dallas County’s assembly-line system of justice. 

Dallas County, Texas has a policy of using secured money bail to impose pretrial detention on criminal defendants too poor to pay.  Those who cannot afford to pay the pre-set bail amounts are locked up until trial solely because they cannot afford to pay for their freedom.   

Dallas County’s bail policy does not consider alternatives that would ensure the defendant’s appearance at trial or community safety.  The amount of money in the accused’s bank account determines whether the defendant is incarcerated or remains free.  Persons with the financial means to pay bail are released—whether or not they pose a danger—while those trapped in poverty are held behind bars, often causing them to lose their homes, jobs, and more.  

Our Constitution does not tolerate this two-tiered system of justice.   

The Fourteenth Amendment’s guarantees of liberty and equality ensure equal justice under the law for every individual charged with a crime, whether rich or poor.  Its majestic guarantees of due process and equal protection give, in the words of its Framers, “the humblest, the poorest, the most despised” of persons “the same rights and the same protection of the law as [they gave] to the most powerful, the most wealthy, or the most haughty.”  Under the Fourteenth Amendment, imprisonment before trial may not be based solely on how much money an individual possesses because such a system punishes those accused of a crime due to their poverty.   

Bail was designed to be a crucial part of our constitutional safeguard of liberty, allowing those awaiting trial to remain free after providing some assurance that they would return to stand trial.  Historically, that did not require upfront payment of moneybut simply a pledge to pay if  the accused did not appear for trial.  This ensured that the promise of bail was available to rich and poor alike.  Policies such as those used in Dallas County, however, turn bail—a fundamental aspect of our heritage of liberty—into an engine of oppression.  They pervert bail into a mechanism for imposing pretrial detention without any consideration of the facts and circumstances of the individual’s case.   

The Constitution does not require governments to get rid of cash bail in all circumstances, but it does require governments to justify bail practices that impose pretrial detention on huge numbers of persons as a matter of course without any consideration of their individual facts and circumstances.   

There is no good reason for a system that lets wealthier defendants purchase their freedom, while indigent defendants languish in jail, regardless of whether they pose any public safety risk, solely because of their inability to pay a pre-set bail amount.  Other alternatives—including pretrial risk assessments and non-financial conditions of release—can ensure attendance at trial and promote public safety.  By utilizing these alternatives, governments can act to further their legitimate interest in community safety, while still respecting the principle of equal justice for rich and poor alike.   

The case of Shannon Daves and her co-plaintiffs comes down to a very simple idea.  The government cannot price those too poor to pay out of the constitutional safeguards for pretrial liberty.  The government should not be allowed to lock up persons still presumed innocent simply because of the amount of money they possess.