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Spangenberg Shibley & Liber LLP | Jul 14, 2015

Buying One's Freedom

An illiterate, poor, middle aged man who suffers from mental illness was forced to spend six days behind bars after he could not come up with $300 to pay his bail after being picked up for public intoxication on June 13th (Neyfakh, 2015). If Anthony Cooper had had the money on hand at the time of the incident, he would have walked free.

Civil rights lawyer, Alec Karakatsanis, filed a class action lawsuit in Cooper’s favor. After all, is it fair to allow those who can afford bail to simply buy their freedom while those less fortunate spend days or even weeks in jail awaiting their day in Court?

Nonprofit civil rights organization Equal Justice Under Law, is working to eliminate this problem. They are working to eradicate bail as a prerequisite to the release of pre-trail detainees from jail. A lot of these bail crimes are petty crimes that simply do not require or justify time behind bars. For example, a 26-year-old mother of two was asked to pay $650 bail as a result of a broken headlight on her vehicle and driving without insurance under a suspended license (Neyfakh, 2015). This while potentially dangerous suspects such as Robert Durst, an alleged serial killer, was set free due to the millions of dollars he had readily available to him at the time of his arrest.

The purpose behind bail is to help ensure that those who are indicted of a crime show up to their court date(s) – bail is refunded when you do. When the accused lack the funds deemed appropriate to achieve such bail then they are held behind bars until the designated court date(s). Therefore, it can be argued, as it was by Krakatsanis and like-minded attorney Mitch McGuire, that holding the accused for their inability to post bail violates the Equal Protection Clause of the 14th Amendment.

The role that not just bail but court cost and fines play in our criminal justice system plagues our nation at all levels from cities to federal. If cases such as the ones Karakatsanis has been taking on continue success, we can hope for serious reforms. As Karakatsanis is puts it, “There’s no reason why someone should be held in jail for a week or even for a day for not having a leash on their dog or a headlight being out or driving with a suspended license. There’s no reason why an arrestee should be held in jail because he’s poor in one of those cases, and there’s no question that any of these people are dangerous to the community.”

Karakatsanis is not arguing that all people should be granted the right to simply walk prior to conviction, rather, “people’s fates should be determined as objectively as possible, based not on how rich or poor they are but on whether or not there’s evidence that says they ought to be detained.”