If You Can’t Pay $500, You Can Get Sent to Prison for Committing a Misdemeanor

Department of Justice intervenes in Clanton, Ala. lawsuit to stop discriminatory bail practices
February 16, 2015 Updated: October 8, 2018

In Clanton, Ala., people arrested for misdemeanor offenses like petty theft are sent straight to jail if they can’t pay a $500 cash bond, according to a recent class-action lawsuit filed in federal court.

For DUI (driving under the influence) offenses, the amount is set at $1,000. These bail amounts are applied to everyone, regardless of their financial situation—in violation of the Constitution and federal laws. Unless the arrested individual can pay up, he must wait in jail until the following Tuesday, when the city holds its weekly court session, according to the court complaint filed in January.

Those who can afford the amount are released immediately after booking.

When Tuesday rolls around, jail inmates appear in the courtroom via video conferencing, and the sessions are closed to the public.

The situation in Clanton, a city of roughly 8,700, sounds so egregious that the federal Department of Justice (DOJ) has gotten involved. Last Friday, the DOJ filed a statement of interest to provide guidance on the case.

The DOJ said in its statement that incarcerating people because of their inability to pay for their release violates the Constitution.

“Any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy,” the DOJ said.

Bail Rules

The lawsuit was filed on behalf of Christy Dawn Varden, a 41-year-old mother who was arrested outside a Walmart store in Clanton last month, and charged with shoplifting, resisting arrest, failure to obey an officer, and possession of drug paraphernalia.

Varden, who was unemployed and living on less than $200 in food stamps to care for herself and her two children, was taken to jail afterwards. She was told that she had to pay $500 for each charge in order to get out of jail.

The vast majority of people in these cases end up in court without a lawyer, said Alec Karakatsanis, co-founder of the pro-bono legal organization Equal Justice Under Law, which is also one of the parties representing Varden.

“And people often plead guilty to get out of jail,” Karakatsanis said.

If the person is found guilty after paying bail, the amount will then go towards any other court fees or fines the person owes. If the individual is acquitted of the charges, the cash is returned.

And people often plead guilty to get out of jail.
— Karakatsanis

The Bail Reform Act, passed in 1966, requires federal judges to evaluate an individual’s circumstances—such as whether he or she poses any danger to the community, and whether he or she is likely to return to court—in order to determine if the person should be detained in jail before a trial.

The U.S. Code of Laws states: “the judicial officer may not impose a financial condition that results in the pretrial detention of the person.”

But poor defendants are commonly placed in jail throughout the country due to their inability to post bail. At a conference on pretrial justice in 2011, U.S. Attorney General Eric Holder deplored the fact that three-quarters of a million people are incarcerated in U.S. jails—two-thirds of whom are awaiting trial.

“Many of these individuals are nonviolent, nonfelony offenders, charged with crimes ranging from petty theft to public drug use. And a disproportionate number of them are poor. They are forced to remain in custody—for an average of two weeks, and at a considerable expense to taxpayers—because they simply cannot afford to post the bail required,” Holder said.

In other jurisdictions, lawsuits have been filed against cities that place poor defendants in jail when they cannot pay traffic fines and other court-related fees. Some cities pursue the individuals to pay their debts even after they’ve served jail sentences. Such lawsuits are pending in Ferguson and Jennings, Mo.

In regards to the Clanton case, Holder said in a press statement: “[W]e will not accept criminal justice procedures that have discriminatory effects.  We will not hesitate to fight institutionalized injustice wherever it is found.”

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