Georgia appeal has potential to upend bail bonding system as we know it

Ripples from Georgia bond case echo in Tennessee

In this photo taken Tuesday, July 7, 2015, a bail bonds sign hangs on the side of a bail bonds business near Brooklyn's courthouse complex and jail in New York. (AP Photo/Kathy Willens)

A mentally disabled Georgia man challenging municipal bail bond regulations in his hometown of Calhoun has powerful allies who say some cash bonds violate the rights of the poor and should be abolished.

Maurice Walker already has won a preliminary injunction and certification of a federal class-action lawsuit against Calhoun's system of preset bail bonds for city ordinance violations.

Attorneys for the city of Calhoun say in documents filed with the 11th U.S. Circuit Court of Appeals that this case and others across the country are supported by groups "whose stated objective is to end the cash bail system in this country."

Now the American Bar Association and the U.S. Attorney's Office for the Northern District of Georgia have weighed in, telling the 11th Circuit that money bonds that don't account for a defendant's inability to pay amount to "a bail system that jails only the poor and lets those with means go free."

People on all sides of the criminal justice system locally are watching the Calhoun case. Some say it's long past time to reform bail-bonding practices they say park people in jail before trial at the taxpayers' expense and considerable costs to the life and liberty of the defendants.

"Justice shouldn't be about money," said Hamilton County District Attorney General Neal Pinkston.

He's seen people charged with low-level, nonviolent crimes await trials in jail because they couldn't make bond, then not receive any incarceration time when they're convicted.

"If you're charged with something and the law shows you're never going to serve jail time, why do they sit in jail?" Pinkston said.

Reform advocates argue that the flourishing private bail bonding industry - with $2 billion in revenue in 2012, according to the nonprofit Justice Policy Institute - profits from the poor.

By the numbers

* 24 percent: Share of defendants released on commercial bond in 1994* 42 percent: Share released on commercial bond in 2004* 41 percent: Share released on their own recognizance in 1992* 28 percent: Share released on their own recognizance in 2006* $25,400: Average cost of bail in 1992* $55,500: Average cost of bail in 2006* $14 billion: Amount of bail bonds written annually in U.S.* $2 billion: Bail bond industry revenue in U.S.Source: The Marshall Project the Justice Policy Institute, both 2012

Other options

› Valid risk assessments to predict those most likely to come to court and obey judicial mandates› Citations rather than arrest for low-level, nonviolent crimes› Expand own-recognizance (no money) bonds for low-risk defendants› Conditional release with mandatory supervision, alcohol/drug testing or other requirements› Pretrial services to monitor e defendants before trial› Court notifications via automation or call centers to ensure defendants know their court datesSource: Justice Policy Institute, 2012


Sept. 3, 2015: Maurice Walker arrested for walking while drunk in Calhoun, Ga.Sept. 8, 2015: Walker files federal lawsuit, asks for injunctionSept. 9, 2015: Walker released from Calhoun jail on own recognizanceOct. 12, 2015: $160 present bond paid; case dismissed by bond forfeitureJan. 28, 2016: Temporary injunction granted and class action certified in U.S. District CourtJune 14, 2016: Calhoun files appeal in 11th U.S. CircuitJune 21: American Bail Coalition, Georgia Association of Professional Bondsmen and Georgia Sheriff’s Association file amicus brief on behalf of city of CalhounAug. 16, 2016: Walker files response to Calhoun’s appealAug. 18: ABA and U.S. Attorney’s Office file amicus briefs on behalf of Maurice Walker

However, the bonding industry says it provides services - such as monitoring defendants' behavior and helping make sure they show up for court - that protect public safety and spare governments assuming the burden.

" [U]niform pretrial detention would impose a significant cost-burden on local communities, while placing additional stress on overcrowded jail facilities. But releasing all accused on the mere promise to appear would wreak untold consequences on our communities," the American Bail Coalition argues in its own brief on the case. That position is supported by the Georgia Association of Professional Bondsmen and the Georgia Sheriffs Association.

"Released defendants would have significantly less incentive to appear for their court hearings and might commit additional crimes," the groups argue. "When a defendant fails to appear, local courts must reschedule proceedings, wasting the time of court personnel, judges, lawyers, and testifying witnesses, including victims, and inhibiting the community's ability to enforce its laws."

Maurice Walker was jailed for walking while drunk in early September 2015. Calhoun has what is called "preset bonds" - essentially the person can put up the amount of the fine and court costs and be set free. Walker didn't have any money, so he sat in jail for six days until he could be brought before a judge, who released him on his own recognizance.

The Constitution and the U.S. Supreme Court say bonds should be "reasonable." Where things hang up is on the definition of reasonable.

Walker's attorneys say preset bonds, which don't account for an accused person's ability to pay, are unconstitutional, denying people due process and equal justice under the 14th Amendment. They said anyone who had the $160 would have been set free immediately, regardless of public safety, flight risk or how drunk he or she might still be, while Walker, neither a threat nor a flight risk, remained in jail.

U.S. District Judge Harold Murphy, in Rome, Ga., agreed. He granted a preliminary injunction telling Calhoun officials to rethink the city's preset bonds when a defendant is too poor to pay, and certified a class-action lawsuit for others who had been harmed by the system.

Calhoun appealed to the 11th Circuit, defending its procedures, and that's when the ABA and U.S. Attorney's Office filed what's called friend of the court briefs on Walker's behalf.

"Under our system of justice, the right of any individual to liberty, as well as the right to mount an effective defense to criminal charges, should not depend on that person's ability to pay," the ABA's brief states.

Assistant U.S. Attorney Vanita Gupta noted in her brief that the Justice Department has been working since 2010 to reform bail practices it says violate constitutional rights, harm citizens and their families and contributes to jail overcrowding.

And in a March letter to the American judicial community, the U.S. Justice Department's Office of Civil Rights wrote a "Dear Colleague" letter reminding attorneys, judges and others that, among other ills, "courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release "

"It's wonderful that the Justice Department is making that argument," said Hamilton County Public Defender Steve Smith. "For whatever reason, judges tend to listen to prosecutors more than they do to defense lawyers."

Overcrowding is a constant in local jails, and a recent check with five county facilities showed a roughly 5-to-1 ratio of pretrial detainees over people actually serving sentences.

In Tennessee, anyone arrested on any charge except murder is entitled to bond, a sum of money that is supposed to ensure the defendant will show up for court.

That doesn't mean all those pretrial detainees are simply too poor to make a bond. Many of those detainees are being held on accusations of violating probation or parole, failure to appear in court, or other reasons that may keep them locked up.

But being eligible for bond isn't the same thing as being able to actually get one. Area district attorneys, public defenders, sheriffs, jailers and others pretty much agree: The money bond system for people charged with crimes - preset or not - is unequal in its effects.

"The mantra in Tennessee has always been you're entitled to a bail; you're not always entitled to a bail you can make," said Steve Crump, 10th Judicial District Attorney General.

People charged with crimes in Tennessee see a magistrate soon after they're booked into jail. They can argue they can't afford to pay much, if anything, to get out of jail. Magistrates and judges everywhere may let defendants go on their own recognizance, which means they pledge to come to court and don't have to put up any money.

Tenth District Public Defender Richard Hughes said he doesn't see a lot of high bonds in his district's General Sessions Court, but there's an issue with bonds being set based on the offense rather than on the defendants' individual circumstances.

"There's always a sizable number of people that are held pre-trial, no finding of guilt, waiting to be charged in Criminal Court, which obviously creates crowding in the jail."

Some local defense attorneys also argue the system is subject to manipulation. They say high bonds can be leveraged to induce guilty pleas and keep dockets moving, which disproportionately affects indigent defendants.

Fees, fines and costs are another tripping point, Chattanooga defense attorney John Wolfe said.

"When you go through the court system it's like a turnstile. Miss any of those payments, you go back to jail."

Reliance on a money bond system isn't standard in the United States. Walker's attorneys note that 21 states provide for a "presumption in favor of releasing defendants on personal recognizance or an unsecured bond." Another 16 require courts to impose the "least restrictive condition" on pretrial release.

Reform advocates say many tools are available, such as monitoring and supervision, pretrial services and court notifications, to make sure people charged with crimes make it to court.

The nonprofit Justice Policy Institute cited Multnomah County, Ore.'s, use of an automated phone system to remind people of their court dates. In two years, that program reduced failure-to-appear rates by 45 percent, the Justice Policy Institute reported in 2012.

Kentucky abolished private bonding and allows defendants to post appearance bonds with court clerks. Those who show up for court get all their money back and can use it to pay lawyers, satisfy restitution requirements or otherwise help their cases.

Local county officials see the lack of alternatives. Walker County, Ga., Sheriff Steve Wilson said half his jail population is parole violators on their "second, third, fourth or fifth time."

Catoosa County Sheriff Gary Sisk says he's talked to judges and magistrates about bond conditions and treatment programs for the many people in his jail with addictions. He doesn't want to abandon the bonding system, though he'd support ensuring that people get before a magistrate soon after they're arrested. Now, he said, that may take as long as 10 days.

Joe Fowler, chief of corrections at the Hamilton County Jail, says more community alternatives, from supervision to mental health treatment to supportive housing, are needed to help the hapless stay out of jail.

"Ultimately the taxpayers are paying the money for these individuals on feeding, housing and medical care. We have to change our thought process to spend the money on the front end rather than the back," Fowler said.

"We're going to spend that money anyway. It's kind of counterproductive to keep them in jail if there's no real risk to themselves or the community."

An 11th Circuit decision in Walker's favor would have no legal effect in Tennessee, but area officials say they would expect a flood of similar constitutional challenges from local defendants.

"The writing would be on the wall," said state Sen. Mike Bell, R-Riceville, who sits on the Senate Judiciary Committee.

Crump said technology such as GPS trackers and alcohol/drug monitoring systems are effective tools for keeping up with people , could that can track and monitor people.

"But before we throw out the bail system and expose local, state and federal governments to potential liability, I think a real studied approach to this is important," he said.

Contact staff writer Judy Walton at [email protected] or 423-757-6416