A small Missouri town in St. Louis County agreed this week to stop jailing residents for municipal offenses just because they can’t pay hundreds of dollars for their release. The agreement to significantly curb the use of bail in Velda City was approved Wednesday by a federal judge, and may be the first court-approved pronouncement of its kind.
In strong, sweeping language, the agreement declares, “No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond.”
“I don’t think people have really applied these [equal protection] principles to the bail context, at least in the past 30 or 40 years,” said Alec Karakatsanis, who represented the plaintiffs in the case along with local lawyers from ArchCity Defenders in St. Louis.
The case was initially filed by Donya Pierce, a 26-year-old mother of two who was arrested for several traffic-related offenses, including having a headlight out, driving while suspended, failure to produce a driver’s license, and no proof of insurance. Pierce was told that she would be held in jail unless she could pay $650. But the bail money wasn’t to prevent her from fleeing pending a court date. Instead, she would be released after three days if she failed to pay.
Pierce was working a low-wage job, and living paycheck to paycheck. The initial complaint challenging the jail practice warned that during the three days Pierce was held, she would not be able to care for her kids and could potentially lose her job.
Bail was initially devised as a way of ensuring that individuals who are arrested return to court for later proceedings or don’t pose a danger to the public. The idea was that if an individual is forced to leave assets with the court, they’ll be more likely to return later. But over the years, bail has become an increasingly common practice, imposed more frequently and in higher amounts. What’s more, Velda City was imposing bail based on a schedule of fixed payments that ratchet up with each charge. The city did not make any individualized determination about whether an individual was likely to flee, was dangerous, or could afford to pay.
“The whole point of bail is to get someone to come to a court date,” Karakatsanis, who co-founded the nonprofit Equal Justice Under Law, pointed out. The federal government reformed its bail system decades ago so that a judge has to make an assessment about whether a defendant is a danger or at risk of not appearing for their court date, before deciding whether to hold that individual in jail pending trial or other court proceedings.
Pierce was released in the agreement between the parties, and the court-approved consent decree also prevents the city from imposing similar payment requirements on any other individuals arrested for other municipal offenses, including things like marijuana possession or shoplifting. The agreement imposes several other reforms that prevent the city from holding individuals simply because they cannot afford to pay.
Velda City is one of a host of tiny municipalities in St. Louis County surrounding Ferguson, Missouri, where tensions erupted this summer after the fatal police shooting of Michael Brown. In the wake of his death, national attention turned to the criminalization for profit of poor residents, mostly African Americans, in Ferguson and many of the surrounding towns.
“This order will change the lives of poor people in the region. We’ve been putting poor and mostly black people in jail over traffic tickets in St. Louis and across the country,” ArchCity Defenders’ Executive Director Thomas Harvey said.
But similar practices also occur around the country. In fact, another similar lawsuit in Clanton, Alabama, received the backing of the U.S. Department of Justice earlier this year. Like Velda City, Clanton has a schedule of bail fees imposed on residents for municipal violations, and holds individuals in jail who can’t afford to pay. In a motion filed in that case in February, the Justice Department argued that this practice violates the Constitution.
“Fundamental and long-standing principles of equal protection squarely prohibit bail schemes based solely on the ability to pay,” the Justice Department’s court filing said. “Fixed-sum bail schemes do not meet these mandates. By using a predetermined schedule for bail amounts based solely on the charges a defendant faces, these schemes do not properly account for other important factors, such as the defendant’s potential dangerousness or risk of flight.”
New Jersey reformed its bail practices last summer to make jail time less dependent on poverty, after a study found that 75 percent of New Jersey jail inmates had not even been convicted, and 40 percent of those were there simply because they could not afford bail. And with increased focus on the bloated U.S. prison and jail population, some are calling for the elimination of bail altogether.