Jenner & Block

Firm’s Amicus Brief Challenges Constitutionality of Georgia’s Bail Practice

On November 20, 2017, Jenner & Block filed an amicus brief in the Eleventh Circuit Court of Appeals on behalf of the American Bar Association (ABA) in a suit challenging the constitutionality of the City of Calhoun, Georgia’s practice of detaining defendants prior to trial pursuant to a preset money-bail schedule that exclusively relies on the offense charged to assess the bail amount due, without an initial determination of an individual defendant’s ability to pay.

In Walker v. City of Calhoun, GA, the plaintiff, a mentally disabled individual, was arrested for a misdemeanor and detained for 11 days due to his inability to afford a standard $160 cash bond to secure his release.  A federal district court issued a preliminary injunction ordering the municipal defendant to “implement post-arrest procedures that comply with the Constitution.”  While further proceedings were pending, the City of Calhoun issued a new Standing Bail Order governing pre-trial detention of arrestees.   The plaintiff again challenged the constitutionality of the new Standing Bail Order, and the federal district court found that the Standing Bail Order “still violates the Constitution insofar as it permits individuals who have sufficient resources to post a bond (or to have one posted for them) to be released immediately, while individuals who do not have those resources must wait forty-eight hours for a hearing.”  The federal district court issued a second preliminary injunction prohibiting the City of Calhoun from detaining indigent misdemeanor arrestees who are otherwise eligible for release but are unable to pay money bail because of their poverty, and directing the city to provide indigent arrestees with an individualized hearing assessing their inability to pay within 24 hours of their arrest.  The City of Calhoun appealed to the US Court of Appeals for the Eleventh Circuit.

The brief in support of the plaintiff-appellee argues that money-bail systems that fail to adequately consider a defendant’s ability to pay violate the ABA’s Criminal Justice Standards and that jailing otherwise release-eligible defendants solely because they cannot buy their freedom is unconstitutional.  It explains that, after studying the issue over many decades, the ABA has concluded that money-bail systems harm criminal defendants, do not serve the fair and proper administration of justice and do not advance public safety or the interests of justice.  The brief also explains that a consensus has developed that money-bail schemes are unfair and do not work.  It urges the Eleventh Circuit to affirm the decision of the district court.

The Jenner & Block team includes Partner Elizabeth A. Edmondson and Associates Jessica M. Ly and Jonathan M. Diaz, borrowing substantially from and building upon an amicus brief submitted to the Fifth Circuit on behalf of the ABA by Partner Lindsay C. Harrison and former Associates Peter A. Goldschmidt and Grace C. Signorelli-Cassady in O’Donnell v. Harris County and McGruder et. al. v. Harris County.

PEOPLE: Elizabeth A. Edmondson

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