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  • Posted Friday, August 26, 2016

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Justice Department deems mandatory fixed bail unconstitutional

Directly following the Department of Justice’s (DOJ) announcement suspending the use of private prisons, the DOJ deemed the ability to hold defendants in jail because they can’t afford bail as unconstitutional. The decision has been hailed a huge victory in bail reform for Criminal Justice Advocates.

The court filing came in the case of a Georgia man who was kept in jail for six nights after police arrested him for misdemeanor charges due to his inability to pay the fixed bail amount of $160. DOJ civil rights lawyers argued that courts must consider a person’s ability to pay and look at other ways of guaranteeing an appearance in court.

The court filing was the first time the government has taken such a position before a federal appeals court, and the latest step by the Obama administration in encouraging state courts to move away from imposing fixed cash bail amounts and jailing those who can’t pay.

Rather, “pretrial liberty must be the norm and detention prior to trial the carefully limited exception.” Those arrested on misdemeanor offenses should be released on their own recognizance, and other changes in post-arrest procedures must be made, such as the effective use of pretrial services.

APDS believes in a fair and equitable criminal justice system that does not discriminately punish based on indigence. We are deeply gratified to see that the US Department of Justice has come to the same conclusion, and applaud the decision based on democratic principle alone.

Read the Justice Department’s fixed-bail briefing here