DOJ Argues Bail Schedules Unconstitutional, as Studies Reveal How Discriminatory Bail Is



The US Department of Justice filed an amicus brief in a Georgia case last week, challenging the use of financial bail.  The DOJ back in February of 2015 argued “that bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violates the Fourteenth Amendment.”

The current case goes further, arguing that the use of a bail schedule by the city of Calhoun, Georgia, which sets bail amounts based on the nature of offenses, violates the 14th Amendment due process and equal protection rights of those arrested.

The DOJ addresses one key question: “Whether a bail practice that results in the incarceration of indigent individuals without meaningful consideration of their ability to pay and alternative methods of assuring their appearance at trial violates the Fourteenth Amendment.”

Here the DOJ argues that fixed 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.”

Under such bail schemes, “arrestees who can afford to pay the fixed bail amount are promptly released whenever they are able to access sufficient funds for payment, even if they are likely to miss their assigned court date or pose a danger to others. Conversely, the use of such schedules effectively denies pretrial release to those who cannot afford to pay the fixed bail amount, even if they pose no flight risk, and even if alternative methods of assuring appearance (such as an unsecured bond or supervised release) could be imposed.”

The DOJ argues, “Such individuals are unnecessarily kept in jail until their court appearance often for even minor offenses, such as a traffic or ordinance violation, including violations that are not punishable by incarceration.”

This creates harm for people who are presumed innocent under the law, making it more difficult to mount an effective defense and more likely for them to cop a plea, and producing strains on local budgets.

Last week, new research from the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School found that, for those defendants who cannot make bail, the repercussions do not end with pretrial confinements.

Two new studies from the Center found that defendants subject to pretrial detention “are more likely to be convicted and less likely to receive favorable plea terms than similarly situated defendants who make bail.”  Moreover, “those who experienced pretrial detention committed more crimes after their release than similarly situated individuals who made bail, calling into question the public safety benefits of widespread detention through money bail, particularly in low-level cases.”

In a press release, the Center “recommends that jurisdictions consider reducing reliance on money bail in misdemeanors and other non-violent, low-level offenses. Such strategies advance a variety of bipartisan community goals, including reducing costly incarceration, while actually improving public safety and reducing crime overall.”

The first of the studies, conducted by Quattrone Center academic director Paul Heaton and Center fellows Sandra Mayson and Megan Stevenson and forthcoming in the Stanford Law Review, examines the consequences of misdemeanor pretrial detention in Harris County, Texas — the third largest county in the United States — using data from 380,689 misdemeanor cases filed between 2008 and 2013. The second study, by Megan Stevenson, analyzes pretrial detention in Philadelphia for all criminal cases which had a bail hearing between September 13, 2006, and February 18, 2013.

Paul Heaton is a leading economist looking at the criminal justice system, specializing in data-driven studies of crime, courts and legal policy. Sandra Mayson is a lawyer and criminal law scholar, and Stevenson is an economist studying crime and the criminal justice system.

“Often the poor can’t afford even relatively low amounts of money bail, and the effects of even a few days of jail can be severe, such as the loss of a job or housing,” said Ms. Stevenson.

The study found that, in Harris County, roughly 50 percent of misdemeanor defendants do not make bail, and in Philadelphia that number is around 25 percent. Even at bail bond amounts of $50, almost half of Philadelphia defendants are detained for more than three days.

“Defendants in these cases have an incentive to plead quickly to secure release, which may contribute to widespread errors in case adjudication, and have ripple effects as individuals come into further contact with the criminal justice system down the line,” said Mr. Heaton.

These misdemeanor convictions can result in jail time, heavy fines, invasive probation requirements, and collateral consequences that include deportation, loss of child custody, ineligibility for public services, and barriers to finding employment and housing.

In Harris County, the study found that misdemeanor defendants incarcerated pretrial were 25 percent more likely to plead guilty and 43 percent more likely to be sentenced to prison, and they received sentences more than double the length of those received by similarly situated defendants who were not incarcerated pretrial.

In Philadelphia, the study found that felony and misdemeanor defendants detained pretrial were 13 percent more likely to be convicted than similarly situated defendants who were not detained. In addition, detained defendants received sentences five months longer and owed an average of $128 more in court fees.

“Our research suggests that the bail hearing is a critical stage in the criminal process,” said Ms. Mayson, “which would mean that defendants have a Sixth Amendment right to representation.” Currently, many jurisdictions, including Philadelphia and Harris County, do not provide representation for poor defendants at the bail hearings. Bail hearings often last only a minute or two and occur over video conference.

In addition to affecting the outcome of the immediate case, in Harris County pretrial detention had a criminogenic impact – “it appeared to cause an increase in crime after those detained had served their sentences.” After carefully accounting for the possible fact that those detained pretrial are more criminally involved than those who post bail, the research showed that detainees committed, on average, 22 percent more misdemeanors and 33 percent more felonies than similarly situated releasees within 18 months after the bail hearing.

Reducing reliance on cash bail, as the Center recommends, would have had a significant financial and public safety impact on the county. If Harris County had eliminated cash bail for individuals whose bonds were set at $500 during the study’s time period (2008–2013), the county would have reduced incarceration by 400,000 inmate days and saved $20 million in jail supervision costs, and could have reduced crime in Harris County by 1,600 felonies and 2,400 misdemeanors.

On November 19, the Vanguard Court Watch will have its annual dinner and fundraiser.  This year the topic will be bail reform and the keynote speaker will be San Francisco Public Defender Jeff Adachi, a leader in the bail reform movement.  Tickets will go on sale on September 6, 2016 and proceeds will fund Court Watch operations.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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26 thoughts on “DOJ Argues Bail Schedules Unconstitutional, as Studies Reveal How Discriminatory Bail Is”

  1. quielo

    The other part of this which is not addressed is that the bail is often set at whatever the fine will be and so makes it easier for the court to keep your bail as the fine.

      1. quielo

        OK David,


        You inspired me by your thorough article today to substantiate my earlier claims.


        From the Orange County Courts, however most courts in CA use the same system.

        “In cases where a court appearance is required by a court, the amounts set forth in the Uniform Bail and Penalty Schedules do not necessarily indicate the appropriate total penalties; rather, they ensure that, in most cases, when bail is posted, sufficient funds will be available to meet the defendant’s obligations. Upon conviction, however, “additional penalties” are added to any fine. It is incumbent upon the judge who hears each case to determine the proper total penalty (fine and “additional penalties”) based on the particular facts presented. ”

        So the official policy of the court is to publish a bail schedule where the bail amount equals the expected penalty. Convinced?

    1. quielo



      “First of all, the fine amount is usually equal to the bail amount. Usually, if you plead “not guilty” the court will order you to post bail in an amount equal to the fine amount so that if you decide not to show up, then the court enters a guilty verdict, and converts the “bail” into the fine… So now they have their money, they don’t have to come after you to collect it. That is the way it works for an adult.”

      1. David Greenwald Post author

        That’s not how it works in California from what I have seen, but maybe that’s for misdemeanor offenses. Regardless if you are unable to make bail, the point is kind of irrelevant. And that’s the point at issue here.

        1. quielo

          The vast majority of people in jail are there for infractions and misdemeanors. FTA for an infraction is likely the single most common reason to be arrested in CA.

          1. David Greenwald Post author

            Almost all of those guys are let out on OR, at least here in Yolo. It’s very rare to see an in-custody in misdomeneaor court

        2. quielo

          OK David let me explain it to you. Many of the laws are enforced for revenue enhancement. As I noted in my earlier post most people in CA are arrested because they got a jay walking ticket, did not pay the fine and went to warrant through Failure To Appear (FTA). The person gets stopped again and they get arrested since FTA is a misdemeanor despite the original charge being an infraction. Now they are in jail and have a court date in two or three days. However they have work to go to our children to take care of. The bail is set at the amount of the fine. The point of this is not to ensure they will appear, it’s to endure that the court gets the money and the person cannot plead poverty or ask for community service. If you wait in jail you will often get time served and don’t have to pay anything. If you bail out the court keeps the money.


          So instead of the original intention of bail (monetary or otherwise) making certain that you appear it is now used by the court as advance payment of the fine as the presumption is that you are guilty. As it mentions above “The DOJ argues, “Such individuals are unnecessarily kept in jail until their court appearance often for even minor offenses, such as a traffic or ordinance violation, including violations that are not punishable by incarceration.””

        3. quielo

          “Almost all of those guys are let out on OR, at least here in Yolo. It’s very rare to see an in-custody in misdomeneaor court” In other places with overcrowded jails someone who gets 5 days or $500 will most likely take the 5 days, report to the jail in the evening, and kicked kicked out at 4AM. I don’t know the situation in Yolo but other places, with jail off the table, bail is how you get people to pay.

  2. Sam

    Even at bail bond amounts of $50, almost half of Philadelphia defendants are detained for more than three days.

    You must be something special if your friends and relatives won’t even pool together $50 to come get you out of jail.

    1. quielo

      For people in the grip of addiction or other negative life styles it likely less a question of the money than a determination that Jail is safer for the individual than the outside.

        1. Marina Kalugin

          jail even in Yolo – even in hours may mean death..- .just another woman died within the last few days at Yolo… is a daily occurrence in Oakland jail…

          follow the money…learn the truth

          county is worse than prison….of the three, unless it is a for profit prison- prison is the best, county is worse and halfway houses the absolute worst…

          ask me how I know or don’t ask…I don’t have time to explain.

    2. quielo

      “ask me how I know or don’t ask…I don’t have time to explain.” My real question is how you post with both arms strapped behind your back? Do you use some freeware speech to text program which would account for the punctuation issues or an adaptive device of some kind?

  3. Delia .

    Wow. Sounds rather callous. People who are alone and broke deserve to be in jail? What if they are travelling. What if they cannot get thru to anyone? The jails’s auto dialer system is faulty and does not even play the entire recording informing your loved one the location of the jail. Pray you never have to choose who to call for that one phone call. Because they don’t care if that person answers. Then you very well could sit in jail for several days, even if you could afford bail.

  4. Marina Kalugin

    of course, it is callous…and what does one expect…

    I got caught in a little ole speed trap in Baja a couple of weeks ago…just outside the wealthy american section….the nice young, well dressed “federales” aka national police in his brand new black car pulls me over..impeccable manners, perfect English….the triplicate paperwork is in both english and spanish.

    It explained the fine as 60 “days of work”….in Mexico the minimum wage is $8 per day so one could pay $250  US  or spend 60 days in jail….of course, I could get a huge discount of 50% off for paying up within 15 days…of course, one had to go to a website to find the info on how and where to pay ….in Baja…or course I was on my way back across the border….of course, it took more than 72 hours to post, though they claimed it could be seen the next day…

    Fortunately my TJ attorney was with me as we were on business down there… and he went to pay it for me … after he returned from another business trip..

    Of course, did I have time to drive back down to Baja and pay it???

    this happens all over..

    people are “trapped”   and then made to pay for freedome..

    it is discriminatory to the max…and should be illegal, right????

    does anyone care? and who is making sure this is made illegal……in the US it is even worse..

    at least in MX< they only stop those with US licenses right???

    in the USA< one gets stopped for random illegal things like DWB….



      1. Marina Kalugin

        Because,  it is way worse here in this so called and wonderful USofA….

        did someone miss that part of the post?

        did anyone miss the connection between what is being done to others in the name of bail, CPS, and so on in this county of ours?

        Ajay Dev….mamabear,….ms green…..

        and on and on…on so many similar yet not the same topics….

        Some rarely get a clue nor see the forests for the trees…..

        the true recent story in a third world country which shares the “US” border…and btw almost all of the US used to be part of that third world country….

        is to illustrate that no matter how bad it is in that third world country it is way worse here…

        where so many resources are wasted on nonsense and so much is being actively done by the highly paid and  most powerful against the increasing group of have nots…

        and even many who used to have, like the Chancellor Emeritus….

        did someone miss the reference to DWB….that means Driving While Black….  even happens a lot in our little ole pc town of Davis….

        what the friggin does anything have to do with anything? really?

        it is so easy to try and look at things in a vacuum and attempt to espouse one’s own agenda by pushing back on anything one is not familiar with, not comfortable with   – like “see no evil, hear no evil, speak no evil”….

        well, that is not working folks….  and until some truly start waking up…

        likely, some never will, until some unfortunate incident to themselves or a family member and boy that will jolt those eyes wide open…



  5. Delia .

    They don’t care if your kids are waiting for you to pick them up from school, either. Just let the principal deal with that sh*tstorm, not their problem. Who cares if now involved with a perfectly safe child? Who cares if c.p.s. now cannot help a battered bruised child because the jail employee was callous? It would be nice to hear from someone who works for C.D.S.S. re: this subject of wasted precious c.p.s. resources.

  6. Frankly

    For non-violent arrestees I would support a one-strike rule.  You are let go on your word to appear or pay the fine.  If you do neither, then the next time book em’ Dano.  Otherwise you can keep screwing up and paying the fine or appearing to fight it in court and pay the fine if you lose.

  7. Delia .

    I’m guessing quielo has never observed an inmate receive narcotics in jail?  How sweet and naive. Jail is not a 100% safe haven.

    And I guess it is also acceptable for a person who is 100% innocent to be an ally raped while being admitted.  Cause some folks think they have to search you for drugs.

    What if you are a first time offender on the cusp of a dui, according to the breathalyzer, you can’t afford bail,  and you were taken down to jail, strip searched and raped? How would you like that?

  8. Marina Kalugin

    and, I have a close family member who was arrested for driving under the influence when he was not the driver…and so much else on that….. his life was ruined as a result….now more than a decade later……still trying to get over much injustice…and that is why I speak out….still …always…ever day actually…in this country and others….of course, most of my sharing is scrubbed away …even when it is on topic…

    THEY don’t care if you take the fifth..and if all of the evidence points to the driver was a short skinny underage kid…not a very tall and very large 18+ do they? no

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