Is Bail Unconstitutional?

Our broken system keeps the poor in jail and lets the rich walk free.

Pre-trial detention and bail
Reformers say it makes no sense to decide whether someone should be detained based on how much money they have.

Photo illustration by Slate. Photo by Thinkstock.

Anthony Cooper was going to jail because he couldn’t afford to buy his way out. After being picked up for public intoxication at a bus station in Dothan, Alabama, at about 1 a.m. on June 13, Cooper was told that unless he paid $300 in bail money, he would have to spend six days behind bars while awaiting a court hearing. If Cooper, who is illiterate and suffers from mental illness, had had the money on hand, he could have gone free on the spot. But the 56-year-old’s only source of income comes from his Social Security benefits, and he didn’t have $300. And so Cooper, like many down-on-their-luck Dothan residents before him, was locked up.

It was shortly thereafter that Alec Karakatsanis, a civil rights lawyer based in Washington, D.C., who graduated from Harvard Law School in 2008, entered the picture. Working with a like-minded Alabama attorney named Mitch McGuire, Karakatsanis filed a class-action lawsuit in federal court on behalf of Cooper and others in his position, contending that Dothan’s bail policy, which called on people arrested by local police for misdemeanors and traffic offenses to come up with fixed sums ranging from $300 to $500, was unconstitutional. Specifically, Karakatsanis and McGuire argued, by allowing some people to purchase their freedom while detaining the indigent just because they were too poor to make bail, the city was in violation of the Equal Protection Clause of the 14th Amendment.

Last week, in response to Cooper’s lawsuit, the city of Dothan announced that it had changed its bail policy: Going forward, people awaiting hearings in Dothan Municipal Court will no longer be required to pay bail upfront. The city will move to an “unsecured bond” system in which defendants only owe money if they don’t appear in court when they’re supposed to. While the lawsuit against Dothan has not been dropped—Karakatsanis intends to get a court-ordered settlement that will enshrine the new policy and make it semipermanent—it has already resulted in getting Cooper, along with an unknown number of other pre-trial detainees in Dothan, out of jail.

For Karakatsanis, co-founder of the nonprofit civil rights organization Equal Justice Under Law, Dothan is just one pot on a big stove: Since January, he has filed class-action lawsuits against four other small cities with bail schemes that don’t take into account people’s ability to pay, and he plans to file more. The suits are the opening moves of an ambitious campaign to abolish, on a national level, the practice of demanding secured money bail (i.e., cash) from pre-trial detainees as a condition of release. Taken together, they represent the first major effort since the dawn of the mass incarceration era in the 1980s to use the legal system to force reform in this area.

“Nobody should be held in a cage because they’re poor,” Karakatsanis told me. “Detention should be based on objective evidentiary factors, like whether the person is a danger to the community or a flight risk—not how much money’s in their pocket.” 

One of Karakatsanis’ suits, against Velda City, Missouri, was filed on behalf of a 26-year-old mother of two who had been asked to pay $650 to avoid jail after being charged with having a broken headlight on her car and driving without insurance on a suspended license. That case, in which Karakatsanis worked with Thomas Harvey of the nonprofit pro bono law firm ArchCity Defenders, ended earlier this month with a settlement that forbids the municipal court in Velda City—where most local arrestees brought in on misdemeanor charges and ordinance violations are prosecuted—from making people pay bail in order to avoid pre-trial detention.

“No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond,” the court-ordered settlement read. That seemingly unequivocal declaration caused reformers around the country to take notice and prompted Tim Schnacke, the executive director of a research center focused on bail policy, to write an enthusiastic blog post about why “these 36 words” turned “every single thing we’ve been doing in bail in America on its head.” Jurisdictions that have “grown accustomed to poor people in jail and only rich people out of jail pretrial,” Schnacke wrote, should “get ready to change.”

Another city Karakatsanis has sued—Clanton, Alabama—is heading in the same direction as Velda City, in a case that moved the Department of Justice to file a statement of support in February. Like Dothan, Clanton stopped requiring secured money bail from new arrestees in response to the suit; Monday night, Karakatsanis filed a settlement agreement to a federal judge aimed at forcing Clanton to abide by the new policy for at least three years.

On their own, each of these lawsuits makes only a tiny dent in the population of Americans who are incarcerated because they can’t afford to make bail. The cities Karakatsanis has gone after so far—which also include St. Ann, Missouri, and Moss Point, Mississippi—are home to very small jails, and the number of people who have been let out thanks to his efforts looks positively inconsequential when you consider that, according to the latest Department of Justice statistics, there are almost a half-million Americans on any given day in pre-trial detention, waiting for court dates in jail even though they haven’t been convicted of any crime. But if Karakatsanis is successful, the work he’s doing could have serious ramifications for that population: Not only does his litigation strategy promise to put pressure on cities around the country to change their bail practices in order to avoid getting sued, the victories he has already notched against municipalities suggest that brandishing the 14th Amendment could represent an effective way to challenge money-based detention policies at the state level as well.

The ostensible point of bail is to make sure that people who are accused of crimes show up to their court dates. (Bail is returned if you do show up for court.) The reasoning is that if defendants have money on the line they are less likely to skip town before the justice system has held them accountable for their actions. Karakatsanis and other advocates for reform argue that bail is not necessary for this purpose. Cherise Burdeen, the executive director of the nonprofit Pretrial Justice Institute, noted in an interview that simply calling people before their court date, or sending them a text message reminder, has been shown to be extremely effective at reducing failure-to-appear rates.

More to the point, reformers like Burdeen and Karakatsanis say, it makes no sense to decide whether someone should be detained based on how much money they have: Not only is it unfair to keep an almost-certainly harmless person like Anthony Cooper in jail because he’s broke, it’s also irrational to release a potentially dangerous suspect like, say, alleged serial killer Robert Durst just because he has millions in the bank.

Karakatsanis is playing a long game, picking off low-hanging fruit in the form of small municipalities that require cash bail for minor violations in an attempt to lay the groundwork for constitutional challenges he hopes to mount later, both in larger cities and at the state level.

The reasons for this are strategic. For one thing, Karakatsanis’ small victories are useful to other reformers, like Nancy Fishman from the Vera Institute of Justice, who told me that in working with jurisdictions around the country on improving their incarceration policies, she and her colleagues at Vera can point to something like the Velda City settlement as evidence that cash bail regimes really do need to be overhauled. Secondly, bringing cases against cities that require cash bail for all misdemeanors, including very minor ones, highlights the unfairness of the practice.

“It’s so obvious to any person who spends even a small amount of time thinking about any of this stuff that there’s absolutely no reason to even have pre-trial detention in these minor cases,” Karakatsanis said. “There’s no reason why someone should be held in jail for a week or even four days for not having a leash on their dog or a headlight being out or driving with a suspended license. There’s no reason why an arrestee should be held in jail because he’s poor in one of those cases, and there’s no question that any of these people are dangerous to the community.”

But the argument works when applied to all kinds of crimes, he said. “The constitutional principles that we’re applying in these cases that involve more minor arrests are equally applicable to drug distribution or burglary or armed robbery or rape or murder.”

That doesn’t mean Karakatsanis thinks people who have been charged with serious crimes like rape or murder should be able to walk free just because they haven’t been convicted yet—only that people’s fates should be determined as objectively as possible, based not on how rich or poor they are but on whether or not there’s evidence that says they ought to be detained.

For now Karakatsanis is focused on taking incremental steps. “I’m looking to find other cities that want to work with us to change their practices without being sued,” he said. “But we’ll continue to bring lawsuits against cities and counties that insist on keeping these blatantly illegal practices alive.”