Justice Department: Bail for Indigents Unconstitutional

amicus brief

“Deprivation of liberty pending trial is harsh and oppressive, subjects defendants to economic and psychological hardship, interferes with their ability to defend themselves, and, in many instances, deprives their families of support. This impact may be exacerbated for indigent individuals who, as a consequence of their poverty, are already in vulnerable situations.

“In short, bail practices that fail to account for indigence are not only unconstitutional, but also conflict with sound public policy considerations.”


The Huffington Post has distinguished itself as an essential news source in a world in which control over the flow of news is increasingly concentrated in a smaller number of hands.1

Yesterday, the Post published an article entitled “Obama Justice Department Joins The Fight Against America’s Bail Industry.” What made the article unique is that it was entirely lacking in spin, and was entirely backed by hard facts. As columnist Ryan J. Reilly explains:

Bail practices in the United States often leave poor people languishing in jail simply because they cannot afford a certain amount of money to purchase their freedom. Many of the more than 800 jail deaths logged by The Huffington Post between July 2015 and July 2016 involved individuals who were incarcerated after being arrested for minor offenses and who were unable to afford their bail.2

Just how these figures came about is in and of itself a story. Subsequent to the death of Sandra Bland, the Huffington Post “gathered names, causes of death, dates of arrest and death, and other data for more than 800 people who died in jails and police lockups in the year following Sandra Bland’s death on July 13, 2015.”

It is apparently quite difficult difficult to obtain details of fatalities that occur in jails, and, as a result, many of the deaths in the database had not previously been reported. “A number of states collect some form of death data from all their jails. In others, the reporting process is far from comprehensive. Some, like Texas, collect information from counties but not from municipalities. Others, like Louisiana, only track deaths of inmates in state custody — a tiny fraction of the jail population,” the Post explains.

To get as clear a picture as possible, their reporters did as reporters should do. They “scoured news reports and press releases, gathered official records, filed public records requests, and called hundreds of jails. When news reports omitted details like the date of arrest or official cause of death, reporters requested that information, either from the jail or the office of the medical examiner who conducted the autopsy.”

The reporters “particularly focused on jails with more than 500 inmates.” All told, it was a formidable task, but someone had to do it. Someone had to particularly focus on getting this information together, and getting it out to the public. Clearly, the handful of news media conglomerates with resources far more vast than that of the Huffington Post weren’t interested in conducting this kind of an inquiry.

The result was “Since Sandra,” which explores “the 815 people (and counting) who have lost their lives in jail in the year after Sandra Bland died.” The Huffington Post also documented the timing of 623 jail deaths. At least one third of them occurred within just three days.

Deaths in custody were sorted by state, and many people died within days of their arrest or booking. Some were arrested for more serious crimes – theoretically considered to be innocent until proven guilty – while others were arrested for minor possession charges, an alleged DUI, or a missed court appearance.

Kara Noakes was arrested for allegedly driving with a suspended or revoked license, and died within 3 days of arrest or booking. John Quaresimo died within 3 days of arrest or booking, the cause of death said to have been hanging with an arm sling. Cedric Dunn died “unexpectedly” within 5 days of arrest or booking, and was detained for a misdemeanor stealing charge for an item or items valued at under $500. Jessie David Vautier died with 33 days of arrest or booking, having been arrested for allegedly resisting arrest without violence. Gregory Green died within 3 days of arrest or booking, and “was being held on second-degree burglary charges. The cause of death was hanging, using a sheet.”

Mine has always been a site dedicated to issues involving child welfare and foster care. And that hasn’t changed. What has changed is that it is now crystal clear that revenue maximization continues to evolve, and that it continues to impact on families in many creative and insidious ways.

It is when a Black, a Latino, a Native American, or a poor White lands in jail on a relatively minor offense unable to post bond that the next question arises: Does he or she have any children? If the answer is yes, you can count on the next step being a call to the local department of social services, such that they can conduct a “welfare check” on the kids.

In some instances, there may be “enough of a family” to take care of the children to satisfy the case workers. In many other cases, however, there may not be. This would be particularly so if it was mom who went to the slammer for driving on a suspended license. With no one to care for them, off go the children to that Dickensian world of foster care.

Assuming that all goes well, the family may be quickly reunited. But, there may come a bill for “child support” for that time that mom spent in jail. The state, you see, wants to be “reimbursed” for that time spent in foster care twice. First, from the parent or parents, and then from the State and Federal Government. This kind of double dipping has gone on for decades unchallenged.

In March of 2014, I wrote about a case in Georgia, where falling behind on child support obligations led to incarceration, which invariably caused people to lose their jobs and to fall even further behind on their child support obligations. This pattern, not surprisingly, may ultimately result in the loss of one’s children completely. At that time, I explained:

The heart of the matter is that as states redoubled their efforts to reimburse themselves for TANF, juvenile justice, and foster care costs, they waged aggressive campaigns against non-custodial parents for the lion’s share of the reimbursements. By cloaking debts to the state as “child support,” a veritable Pandora’s Box is opened allowing the state to use means that may not otherwise be available to it if the debt were treated as a conventional debt owed to the state. Precious little of the money collected directly benefits children.

I also provided evidence that the maximization of revenue has become the raison d’être of many a court system. Of course, I framed the issue from the perspective of its potential impact on families and children. See “Parental representation, child support case on way to Georgia Supreme Court,” March 21, 2014.

In an article of more recent vintage, I used Nebraska’s miserably failed effort at privatizing child welfare services as a springboard into an analysis of privatization of other government services, with the aid of a report issued by the firm of Hornby Zeller Associates, Inc. In “Privatization Update 2015: Nebraska’s $22 Million Only Tip of the IceBerg,” I cite Nebraska Health and Human Services CEO Kerry Winterer as explaining: “We haven’t been able to be in a position to claim federal funds, because we are now playing by the rules.” (They used to call the heads of these agencies Commissioners, or Chiefs, now they are CEOs. That’s a sign of the times).

I noted also that: “Nebraska’s mad grab at federal dollars isn’t strictly limited to foster care. According to a report issued in October 2014 by the Inspector General of the federal Department of Health and Human Services, ‘Nebraska Incorrectly Claimed Federal Reimbursement For Inpatient Claims With Sterilization And Delivery Procedures For The Period April 1, 2011, Through December 31, 2013.'”

Also from the Health and Human Service OIG came a report from August 2014, entitled “Nebraska Claimed Unallowable Federal Reimbursement For Some Medicaid Physician-Administered Drugs.” The report explains, “The State agency did not always comply with Federal Medicaid requirements for billing manufacturers for rebates for physician-administered drugs.” By failing to follow procedures, “the State agency improperly claimed Federal reimbursement for these single-source drugs and top-20 multiple-source drugs.”

Another report from the HHS OIG was issued in March 2014, aptly entitled “Not all of Nebraska’s Controls for its Child Care Subsidy Program Claims were Effective.”

I’ve been reading reports much like these since 1996, and it just goes on and on and on, with no end in sight.

On March 4, 2015, the United States Department of Justice, Civil Rights Division, released its report “Investigation of the Ferguson Police Department.” The report stated, in part, that

Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety.

Since that time, considerably more information has come to light about these practices in other municipalities. The Las Vegas Review-Journal recently exposed the Las Vegas Municipal Court as running what some have described as an “extortion racket” in a series of articles, a particularly illuminating one being entitled “Las Vegas Municipal Court criticized for being ‘money hungry’“.

There would appear to be no end to the variations that municipalities will devise to maximize revenue. In this particular case, the Las Vegas Municipal Court would endeavor to pressure people into paying fines to avoid jail time, rather than actually incarcerate them. And, rather than forming an unholy alliance with its bail bond companies, it went so far as to charge the local bail bond company the amount of the bond if its own police force had conducted the arrest, rather than the bondsman. Now that is double dipping as I’ve never seen it done before.

Up until quite recently, it would have sounded radical to use the term “debtor’s prisons,” as they were abolished long ago. Well, it is no secret that they have made a tremendous comeback, and they hold people incarcerated for debts as diverse as failure to post a bond for a minor offense, to falling behind on a child support obligation.

At long last, the United States Justice Department has stepped in with an Amicus Brief asserting that keeping people behind bars simply because they are too impoverished to pay their bail is unconstitutional.

The Justice Department has taken some courageous steps in the right direction. The complete abolition of debtor’s prisons should hardly come as a radical construct to anyone who knows and cares about the Constitution.


1. To apply some perspective, the Hearst company holds major ownership interests in 15 daily and 36 weekly newspapers, as well as over 300 magazines worldwide. These include Harper’s Bazaar, Cosmopolitan, Esquire, and Elle, among many others. It also controls 31 television stations through Hearst Television, Inc., reaching an estimated market of 20% of U.S. viewers. Its holdings include ownership in leading cable networks including A+E Networks, Marvel Entertainment, and ESPN Inc., as well as business publishing, television production, and newspaper features distribution. The Disney Company owns ABC, Inc. d.b.a. Disney–ABC Television Group, which includes the American Broadcasting Company, ABC News, ABC News Radio, ABC NewsOne, and ABC Enterprises, Inc. ABC Entertainment Group includes ABC Digital, ABC Entertainment, and ABC Studios, formerly Touchstone Television and ABC Television Studios. The company also owns A&E Networks as a joint venture with the Hearst Corporation. It owns Lifetime Entertainment Services, with all of its subsidiaries, as well as having ownership of key ABC television stations including WLS-7 Chicago, KFSN-30 Fresno, KTRK-13 Houston, KABC-7 Los Angeles, WABC-7 New York City, WPVI-6 Philadelphia, WTVD-11 Raleigh-Durham, KGO-7 San Francisco, and more. So much more, that one would hardly imagine that there would be any room left for TIME/Warner and all of its holdings, which would include HBO, Cinemax and all of their respective subsidiaries. Add to the mix the Turner Broadcasting System, including Turner Broadcasting International, Millennium Media Group, Chilevisión, Turner Entertainment Networks and all of their respective holdings. CNN News Group, to include CNN Digital Network, CNNMoney, iReport, CNN Mobile, CNN Newsource, CNN ImageSource and CNN Wire. Don’t forget Warner Bros. Entertainment Inc., including Warner Bros. Consumer Products, Warner Bros. Theatre Ventures, Warner Bros. Pictures International, Warner Bros. International Cinemas, DC Entertainment, DC Comics, and Mad Magazine. And, it just keep getting bigger. See Time Warner Cable, Investor News, “Charter Communications to Merge with Time Warner Cable and Acquire Bright House Networks,” Press Release, May 25, 2015. Let us not forget Rupert Murdoch, who has control as Chairman and CEO of News Corporation, the world’s second-largest media conglomerate, and its successors, News Corp and 21st Century Fox, after the conglomerate split in June of 2013. In July 2016 – after the resignation of Roger Ailes to allegations of sexual harassment – Murdoch was named the acting CEO of Fox News. The Murdoch news empire includes the United Kingdom’s The Sun, The Times, and The Sunday Times. In Australia, the News Corp Australia. Suffice it to say that the list of individual newspapers controlled by News Corp in Australia would fill a chapter of a book. In the United States, holdings include New York Post and the world’s leading financial paper the Wall Street Journal. News Corp holdings include Community Newspaper Group, including The Brooklyn Paper, Courier-Life Publications, TimesLedger Newspapers, Bronx Times Reporter Inc., and The Corning Leader. Control over financial news holdings include Dow Jones & Company, Barron’s, and the Marketwatch financial news and information website. Book publishing assets include HarperCollins, Harlequin Enterprises, Kappa Books, Modern Publishing, Unisystems Inc., Zondervan Publishing, among others. Perhaps this is best summed up by Anita Balakrishnan, “What does Rupert Murdoch own? A little bit of everything,” USA Today, June 11, 2015. Do read that one, as it is far more inclusive than this footnote. Then there is Clear Channel and the subsequent deal with iHeartMedia. While it is a little outdated, see generally Ashley Lutz, “These 6 Corporations Control 90% Of The Media In America,” Business Insider, June 14, 2012. Far and away the most comprehensive resource on this topic would be Columbia Journalism Review’s Database “Who Owns What?” – an easy to use pulldown menu that provides a “guide to what the major media companies own.” In any event, that is why we need independent journalism.

2. Ryan J. Reilly, “Obama Justice Department Joins The Fight Against America’s Bail Industry,” Huffington Post, August 19, 2016.