Court upholds Georgia city's cash bail policy

A federal appeals court has ruled that a Georgia city's practice of jailing people accused of low-level crimes who can't afford to pay bail is constitutional.

The 11th U.S. Circuit Court of Appeals in Atlanta in a 2-1 decision this week upheld the city of Calhoun's policy, saying it doesn't violate due process rights to jail people for up to 48 hours before they see a judge who can rule whether they are too poor to pay bail.

The Southern Center for Human Rights sued on behalf of Maurice Walker, who spent six days in jail after he was arrested in September 2015 on a charge of walking while intoxicated. Walker lived on $540 a month in Social Security disability benefits and couldn't afford the offense's preset $160 bail to avoid jail before his first court appearance.

Walker's lawyers argue the cash bail system allows people with money to go free while the poor languish in jail until they appear in court.

At the time of his arrest, the city used a money bail system in which bond amounts were based on the amount of the fine that would be due if the person was found guilty, plus fees. Anyone who could afford to pay was allowed to go free, while those who couldn't had to wait until a court hearing the Monday after their arrest.

After Walker's suit was filed, the city's municipal court changed its policy. The new policy still allows people who can pay bail to be released immediately. Those who can't afford to pay right away must have a bail hearing with a court-appointed lawyer within 48 hours of arrest and will be freed without paying bail if they can prove they are indigent.

The appeals court upheld the revised policy.

U.S. Circuit Judge Diarmuid O'Scannlain wrote in the majority opinion that under that policy, "Walker and other indigents suffer no 'absolute deprivation' of the benefit they seek, namely pretrial release. Rather, they must merely wait some appropriate amount of time to receive the same benefit as the more affluent."

Authorities can presumptively hold someone for 48 hours without even proving they have evidence he has committed a crime, so it's reasonable that they could take that same amount of time to set bail for someone when they do have probable cause, O'Scannlain wrote.

In a biting dissent, U.S. Circuit Judge Beverly Martin noted that the U.S. Supreme Court has "repeatedly recognized that wealth-based detention is not permitted by our Constitution."

"Consider two people, one who has money and the other who does not. They are arrested for the same crime at the same time under the same circumstances," and both would have the same bail amount set under the policy, she wrote. "The person who has money pays it and walks away."

The commercial bail industry, which had joined Calhoun in defending cash bail policies, hailed Wednesday's ruling as a milestone victory.

"We take enormous satisfaction that we have prevailed in our historic defense of America's bail system," said Jeff Clayton, Executive Director of the American Bail Coalition. "We never doubted the constitutionality of bail and bail schedules."

The Southern Center took some solace, saying in an emailed statement that "at the very least, jurisdictions that detain arrestees for longer than 48 hours before conducting an inquiry into ability to pay bail would be wise to revise their money bail policies."

But the organization argues that a "better, more morally defensible, and economically sound response would be to follow the lead of jurisdictions as diverse as Chicago, New Orleans, Nashville, and Atlanta in eliminating wealth-based detention all together."