The Justice Department would like to limit pre-trial bail for the poor

The Justice Department is making all sorts of changes to the legal system in support of Social Justice Warriors across the nation, so this probably won’t come as too much of a surprise. With the White House reinterpreting the Civil Rights Act to include transgenderism and going after police departments for conducting investigations where the crime actually happens, pretty much all bets were off already. But this one came out of left field in a manner of speaking. The DoJ wants to put an end to pre-trial bail for people who are too poor to afford it, at least in some cases. (NBC News)

Holding defendants in jail because they can’t afford to make bail is unconstitutional, the Justice Department said in a court filing late Thursday — the first time the government has taken such a position before a federal appeals court.

It’s 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.

“Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment,” the Justice Department said in a friend of court brief, citing the Constitution’s guarantee of equal protection.

Before tossing this idea out completely, the specific case being cited in the government’s request is a compelling one which, at least on the surface, merits a look. Maurice Walker of Calhoun, Georgia was arrested for being publicly intoxicated, a misdemeanor. (Technically he was picked up for being a pedestrian under the influence, or walking while intoxicated.) He wound up spending six nights in jail because he couldn’t come up with the $160 bail set by the judge.

Granted, that sounds a bit harsh. Six nights behind bars before you even get to a hearing for being sloshed on the public sidewalk is unreasonable, but only if we were talking about a sentence for the crime. Walker hadn’t been to trial yet. He was simply too poor to afford to pay his bail. (Why he couldn’t obtain a bail bond isn’t stated in the report, but I’ll assume there was a reason.) But the thing to remember here is that we have a system of bail for a reason. It’s built right into the Constitution in the 8th Amendment, with the only restriction being that bail shall not be “excessive.” I suppose one could make the argument that any bail is excessive if you’re dead broke, but I’m not sure that holds up under scrutiny.

Returning to the whole “we have bail for a reason” argument, without forcing defendants to post bail there is much less incentive to bother showing up for a court date. Then we just have a cascading system of bench warrants for minor crimes which law enforcement will never have time to clear up. If the bail system makes it too difficult for indigent persons to obtain a bail bond, perhaps that could be looked into as a possible path to reform. But eliminating bail entirely for people who claim poverty, even for petty crimes, sounds like more trouble, not less.