Eleventh Circuit Indigent Bail Decision Slows Push for Cash Bail

The U.S. Court of Appeals for the Eleventh Circuit on July 29 overturned a federal district judge’s decision holding that the bail system in Cullman County, Ala., was unconstitutional in a case precipitated by the singular efforts of then-US Attorney General Eric Holder.

Holder launched the legal movement against monetary bail in 2015 in the case of Jones v. The City of Clanton.

The latest case of Schultz v. Alabama concerned a basic question: If someone cannot afford bail, is it impermissible discrimination, based on wealth, when a person with means would avoid jail on the same bail amount?

The court, in a 2-1 decision, determined that Cullman County did not engage in discriminatory bail practices and as a consequence, indigent defendants were not deprived of equal protection under the law. This marked the second time that the Eleventh Circuit rejected claims made by plaintiffs.

Although the plaintiffs may appeal the ruling, the US Supreme Court has previously denied cert in two similar cases, so it is considered unlikely.

Circuit Rejects Indigent Bail Theory

Like many places in the country, Cullman County determines bails by a schedule, which are preset by judges based on the criminal charges. Defendants who cannot meet the bail amount, or wish to seek a reduction, are given the opportunity to argue that in court later.

In Schultz, several defendants alleged that they could not afford their misdemeanor bail. One of the named plaintiffs said he faced a $1,000 bail he could not afford, was not represented by counsel, and given a single two-minute hearing.

During the intervening months after the lawsuit was filed, the judges in Cullman County issued a new bail order that was starkly similar to the one adopted in the Jones case by Clanton County, Ala. In essence, all defendants would have a meaningful opportunity to argue bail, set by a schedule, within 72 hours of arrest.

The Eleventh Circuit rejected the notion that everyone should be able to get out of jail on a bail they can afford—the core concept of Holder’s indigent bail theory. In its ruling, the court once again denied the posited right to release of defendants on bails they could afford.

The majority opinion said the right to pretrial release is not absolute, but is conditional, based upon the accused providing adequate assurance that they will stand trial and serve their sentence if found guilty. The very premise that all individuals would be released if they only had money proved to be a flimsy one.

Further, the court ruled that indigent defendants actually do not face discrimination at all under the Equal Protection Clause. The court ruled that “indigent pretrial detainees in Cullman County are not discriminated against solely based on their inability to pay, and neither do they suffer an absolute deprivation of a meaningful opportunity to obtain pretrial release.”

It further determined that the conclusion they drew was amply supported by case law.

The court reiterated its position that bail serves an important purpose, while explaining that indigent versus non-indigent arrestees differ by their very nature. Only the non-indigent have demonstrated they will appear in court as ordered by virtue of their being able to meet the terms of Cullman County’s bail schedule.

On the other hand, arrestees unable to satisfy these terms are not being discriminated against due to a lack of funds. Rather, “they are being discriminated against for failure to ensure in the first instance their future appearance at trial,” the majority said.

The provision of a hearing was also addressed by the federal appeals court, as it said it afforded the indigent with the opportunity to provide the necessary assurances to guarantee their appearance in court. Such conditions may be monetary or non-monetary, provided they sufficiently protect public safety.

Lastly, the court also rejected the plaintiffs’ substantive due process claim calling it a “nonstarter.” It held that they had failed in their attempt to conflate the difference between substantive due process and impermissible discrimination in this case by “smuggling a substantive due process claim” into the Equal Protection Clause.

Adequate Due Process is the Solution

Now in private practice, Holder has been active in local jurisdictions, causing unwarranted turmoil and litigation expenses over the last seven years.

Fortunately, the nation has reason to celebrate now that the answer of adequate due process has been determined to be the solution to the indigent bail problem. We can also rest much easier now as we can finally stop the wholesale release of hardened criminals under the rubric of class warfare.

The decision in the Schultz case stands to mark the end of this bumpy chapter in the history of the right to bail in this country. It affirmed what we knew all along: Indigence is not a shield that excuses criminal behavior.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Write for Us: Author Guidelines

Author Information

Jeffrey J. Clayton is executive director of the American Bail Coalition. He has worked as a public policy and government relations professional, and represents clients in legal, legislative, and policy matters and government service, including the Colorado judicial branch and labor department and the US Department of Transportation.