ABA asks U.S. Supreme Court to grant challenge to bail system in an Alabama county

The American Bar Association filed an amicus brief Monday with the U.S. Supreme Court, urging review of the bail system of Cullman County, Alabama, which uses a schedule of cash bail amounts without regard to flight risk or public safety.

While centered in one of 67 counties in Alabama, the case could have far-reaching effects. At issue is whether the Due Process Clause of the U.S. Constitution protects a fundamental right to pretrial liberty that prevents states from depriving a presumptively innocent person of physical liberty pending a criminal trial unless a court finds detention is necessary to protect public safety or reasonably assures the person’s appearance at future court proceedings.

In the Cullman County case, the petitioner asking the Supreme Court to review the case was charged with misdemeanor drug-paraphernalia possession and remained in custody for two days until a magistrate conducted an initial appearance because he could not afford the $1,000 bail set by the schedule. Because he could not subsequently pay the amount, he remained in jail until trial.

A U.S. District Court found that the bail system unlawfully discriminates because it treats defendants who are indigent differently than defendants with means. But a divided three-judge panel of the U.S. Court of Appeals for the 11th Circuit reversed the trial court’s decision, upholding the constitutionality of the county’s bail system.

The ABA brief, in support of the petitioner, says the Cullman County system is inconsistent with a near half century of ABA policies and ABA Criminal Justice Standards and notes that under the current system wealthier arrestees in Cullman County who can afford bail are released immediately until trial. It argues that the arrangement is unconstitutional because it establishes a two-tier system of pretrial release between the indigent and non-indigent and fails to serve any compelling government interest while unfairly punishing the poor.

“Detention has immediate and long-lasting impacts on detainees, their families and their communities,” the ABA brief says. “Research confirms the district court’s findings that even a day or two in jail ‘negatively influences a person’s employment, financial circumstances, housing and the wellbeing of dependent family members.’”

The amicus brief in Hester v. Gentry was requested by the ABA Standing Committee on Legal Aid and Indigent Defense. The law firm of Zuckerman Spaeder LLP filed the brief pro bono on the ABA’s behalf.