Justice Department: Requiring Accused Criminals to Post Bail is Discrimination
This column by ACRU Policy Board member J. Christian Adams was published September 16, 2016 by PJ Media.
The Department of Justice Civil Rights Division has filed a brief in a federal court arguing that requiring bail, the money accused criminals must post to be released from jail, is discriminatory. To support their legal position, the Justice Department cites studies published by the George Soros funded Open Society Institute.
The case is before the Eleventh Circuit Court of Appeals. The case involves a man arrested in Calhoun County, Georgia, for public intoxication. Bail was set at $160 and the defendant challenged the bail as unconstitutional.
Bail is a condition of release to ensure that accused criminals return for trial. It discourages their flight and helps ensure that the justice system works efficiently and on time. Once the accused criminal appears for trial, the bail is refunded.
The brief highlight’s Attorney General Loretta Lynch’s comment that she seeks to “ensure that in the United States there is no price tag on justice.”
The Attorney General has done more than simply push the radical notion that bail is discriminatory. In February 2015, the Department filed a pleading with a federal court arguing that bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violates the Fourteenth Amendment.
This means, for example, if a poor person is arrested for armed bank robbery and bail is set at $100,000, the Justice Department is arguing that if the person is not released from jail solely because they cannot produce the $100,000 bail, then the Constitution is violated.
This argument would effectively create a constitutional right for the poor to oppose bail in state court criminal proceedings. Since 2015, the Justice Department has hassled other local jurisdictions into adopting their radical view, including Ferguson and Velda City, Missouri.
The Justice Department’s radical argument is contrary to the Anglo-American legal principle that all people should be treated equally before the law, and that no special legal rights inure based on wealth or status of the accused.
Instead, the Justice Department has made the radical argument to the Eleventh Circuit that bail should be set that sets a bail payment from each defendant according to his ability to pay as a constitutional mandate.
In the current case, the Department of Justice is arguing that setting bail at $160 violates the Fourteenth Amendment if the defendant says they cannot afford to pay it.
The Justice Department relies on a case that held that an indigent defendant cannot be denied access to an appeal of a conviction if they cannot afford to pay for the trial transcript.
The brief filed by the DOJ states:
[F]ixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for ability to pay and alternative methods of assuring future appearance, do not provide for such individualized determinations, and therefore unlawfully discriminate based on indigence.
The DOJ brief also cites the Soros-funded Open Society Justice Initiative. The Department argued that incarceration for accused criminals is “harsh and oppressive.” The brief cites a Soros-funded study, The Socio-economic Impact of Pretrial Detention, for this proposition:
This impact may be exacerbated for indigent individuals who, as a consequence of their poverty, are already in vulnerable situations.
The brief was filed by Principal Deputy Assistant Attorney General Vanita Gupta, who once blamed slavery for the Baltimore riots. Also on the brief was Tovah R. Calderon and Christine Ku. Calderon once refused to sign a brief at the Justice Department when she disagreed with it. The case before the Eleventh Circuit is Walker v. Calhoun County, Georgia.