Bailing on Bail: The Unconstitutionality of Fixed, Monetary Bail Systems and Their Continued Use Throughout the United States
Incarceratingdefendants prior to trial was designed to be
the exception, not the norm. Many state and local
jurisdictionsthroughout the United States, however, employ
fixed, monetary bail systems that result in the systematic pre-
trial incarceration of indigent defendants solely because of
their inability to pay for their release. Not only do such bail
systems violate indigent defendants' constitutional rights,
they also contribute to the billions spent by local governments
each year on maintainingovercrowded jails and have lasting
effects on those indigent defendants wrongfully detained.
This Note explores the constitutionalityof fixed, monetary
bail systems through the lens of a recent Georgiacase, Walker
v. City of Calhoun. The bail system at issue in Walker, which
sets offense-based, pre-fixed bail amounts for misdemeanor
and traffic offenses, violates indigent defendants' due process
and equal protection rights under the Fourteenth
Amendment. Further, this Note explains that the City of
Calhoun's bail system is not alone. Many other jurisdictions
continue to employ similar bail systems that result in the
disproportionateincarcerationof indigent defendants. This
Note concludes by offering recommendationsfor changing the
state of the law regarding bail administrationand practical
advice for implementing new systems that will assure
appearance at trial and public safety, without violating
Margaret, Margaret E.
"Bailing on Bail: The Unconstitutionality of Fixed, Monetary Bail Systems and Their Continued Use Throughout the United States,"
Georgia Law Review: Vol. 52:
3, Article 9.
Available at: https://digitalcommons.law.uga.edu/glr/vol52/iss3/9