Pretrial Detention of Indigents: A Standard Analysis of Due Process and Equal Protection Claims

Authors

Robert William G. Wright, University of Georgia School of Law

Publication Date

2020

Abstract

Over the past several years, criminal justice activists
have sought to reform misdemeanor bail policies that
condition pretrial release on an arrestee’s ability to pay
a predetermined cash bond. Activists have challenged
such bail polices by filing lawsuits on behalf on indigent
persons who have been exposed to such policies. Often,
these lawsuits allege that bail policies violate both the
Due Process and Equal Protection Clauses of the
Fourteenth Amendment. While due process and equal
protection analyses are generally well-defined, U.S.
Supreme Court precedent does not offer a clear analysis
for courts to apply to due process and equal protection
claims alleging wealth-based discrimination by the
criminal justice system. As a result, courts have
struggled to apply a standard approach to such claims,
which has resulted in inconsistent decisions. Two recent
circuit court cases illustrate the mixed batch of analyses
that courts have applied. This Note advocates for a
standard approach to analyze all due process and equal
protection challenges concerning wealth-based
discrimination by the criminal justice system.

Recommended Citation

Wright, Robert William G. (2020) "Pretrial Detention of Indigents: A Standard Analysis of Due Process and Equal Protection Claims," Georgia Law Review: Vol. 54: No. 2, Article 7.
Available at: https://digitalcommons.law.uga.edu/glr/vol54/iss2/7