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The American Bar Association (ABA) has urged the US Supreme Court to consider whether Alabama’s bail system is unconstitutional. The ABA submitted an amicus brief in support of Bradley Hester, who is challenging the bail system in Cullman County. Hester was arrested for possession of drug paraphernalia in August 2017 but could not afford the $1,000 bail, resulting in a two-day detention before he could appear before a magistrate judge. The district court later sided with Hester, but the 11th US Circuit Court of Appeals in Atlanta reversed the decision and reinstated the county’s bail system in July 2022.
The ABA’s amicus brief argues that Cullman County’s bail system is discriminatory and violates the Equal Protection Clause by treating indigent defendants differently than those with means. The bail system primarily relies on fixed cash bail amounts, meaning defendants who can afford bail are released within 90 minutes of their arrest, regardless of their likelihood to flee or pose a danger. However, arrestees who cannot afford the fixed bail amounts are jailed for at least three days and often longer, pending an initial appearance. They remain detained until and unless they prove without counsel or the opportunity to present evidence or cross-examine witnesses that they pose no flight risk or danger to others.
The ABA contends that the absence of physical restraint has always been a core liberty interest protected by the Due Process Clause, and being arrested does not extinguish that interest. The association emphasizes the significance of the Supreme Court’s guidance on this “critical constitutional issue,” which it says is “long overdue.”
Moreover, the ABA argues that Cullman County’s bail system flouts half a century of its pretrial detention and bail policies and standards, including the ABA Standards for Criminal Justice for Pretrial Release. The association’s standards counsel jurisdictions to impose monetary release conditions only after considering the individual circumstances of each defendant. Additionally, a defendant’s finances should never prevent their release.
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According to the ABA, Cullman County’s bail system can only be constitutional and consistent with its standards if a compelling interest justifies detention. However, the association argues that the county’s “two-tier system” contradicts any possible interest. Although the county claims it must detain defendants to assess dangerousness and flight risk, it only requires that assessment for indigent defendants. Thus, the county’s bail system is discriminatory because it detains only indigent criminal defendants who pose a real and present danger to the public, while dangerous defendants with means enjoy pretrial liberty.
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The ABA’s submission is the latest in a series of challenges to cash bail systems across the US. Critics argue that cash bail systems violate the constitutional principle of equal protection under the law by keeping poor people detained before trial while allowing those who can afford it to go free. Some states, including California and New Jersey, have already passed laws eliminating or significantly reducing the use of cash bail. In contrast, others have adopted risk assessment tools to determine the likelihood of a defendant showing up for court or committing another crime.
The ABA’s amicus brief reflects the association’s ongoing efforts to advance the fair administration of justice and the rule of law. The ABA believes that pretrial detention and bail practices must conform to constitutional standards and that defendants should not be detained solely because of their inability to pay.
