THE U.S. JUSTICE DEPARTMENT’S INVOLVEMENT IN LOCAL BAIL POLICY IS NOTHING NEW—THE DEPARTMENT HAS TO REFORM SOMETHING SINCE IT CHOOSES TO DO NOTHING TO REFORM THE BROKEN FEDERAL BAIL SYSTEM

            News media outlets around the Country are reporting on the recent filing of an amicus brief by U.S. Justice Department officials, in what one outlet called a “landmark” decision to file an amicus brief in a case challenging the use of monetary conditions of bail.  That suit is pending before the U.S. Court of Appeals for the 11th Circuit, entitled Walker v. Calhoun, GA.

Instead, this is far from a “landmark” decision.  In reality, this is an obvious and not particularly newsworthy decision by the U.S. Justice Department.  The Department, led by then-Attorney General Eric Holder started the very anti-money bail movement eighteen months ago, when the Justice Department intervened in the City of Clanton case in February, 2015.  That was a “rare move,” as the Wall Street Journal described it at the time.  This set off a wave of copy-cat cases, several of which are now pending around the Country, the Calhoun case being the first to test the “cannot afford” bail equal protection theory.  If the Justice Department’s theory was the law, then certainly they wouldn’t need to file an amicus brief on behalf of the “United States” to counter the arguments made in favor of the City by former U.S. Solicitor General Paul Clement.

Further, the Justice Department makes mention in the brief of the intervention it filed in the Clanton case, although the Department glosses over a critical point.  The Clanton case settlement is nearly identical to the municipal court’s order in Calhoun that is now in effect, which the Plaintiffs and the District Judge believe is unconstitutional.  The settlement order in Clanton sets bail in all offenses in a monetary amount, but all such conditions must be reviewed by a judge within 48 hours.  In fact, Paul Clement informed the U.S. Court of Appeals for the 11th Circuit that the right to bail could not attach before the right to arraignment, which is 48 hours after an arrest pursuant to the City of Riverside case.

Finally, anyone who wants to follow the lead of this U.S. Justice Department on criminal policy may want to first review the facts.  It is particularly ironic that this Justice Department would now cite U.S. v. Salerno for the proposition that “liberty is the norm” and detention the exception.  Certainly the ACLU warned that adopting the federal risk-based detention system would increase incarceration—that is why the ACLU opposed the federal bail reform legislation and similarly joined the suit to call the federal bail reform act unconstitutional.  True to form, this Justice Department now incarcerates, with no bail, 64 percent of all persons charged with a federal crime, which is up by 48 percent over the last 15 years.

Before the Justice Department officials continue their march into federal courts to force small cities like Calhoun, Georgia to run a bail policy endorsed by the Department, the same officials may want to realize they entirely lack credibility on this issue because in the very system over which they preside, detention is indeed the norm and liberty most certainly the exception.