​How long must one be deprived of his freedom before the deprivation is considered “absolute?”  For what time period must a person be away from her job, her family, or her home before the loss of liberty is no longer considered a “mere diminishment of a benefit?”  And what is the appropriate amount of time an indigent arrestee must wait to receive the same benefit as someone more affluent?  On April 1, 2019, the Supreme Court of the United States denied a petition for a writ of certiorari filed in the case of Maurice Walker v. City of Calhoun, Georgia, a case which would have allowed it to consider these very questions.  

​In late 2015, Maurice Walker was arrested and charged with being a pedestrian under the influence of alcohol.  At the time of the arrest, Mr. Walker had a mental illness which prevented him from working, and he received $530 per month in disability.  Although the offense with which he was charged carried no jail time, the city of Calhoun, Georgia had a policy of requiring a cash bail for misdemeanor and traffic offenses.  Not uncoincidentally, the cash bail amount equaled the amount of the fine an arrestee would pay if found guilty of the offense plus certain fees.  The bail in Mr. Walker’s case totaled $160.  Mr. Walker had the bad luck of being arrested during a week leading up to a holiday Monday in a small town with only one Municipal Court judge. Because Mr. Walker could not afford the bail, he was set to remain in jail for thirteen days awaiting a hearing which only occurred on non-holiday Mondays.  Instead, Mr. Walker filed suit and was released after six days in jail on an appearance bond, and the City quickly modified their policy to allow for release of indigents after a maximum of forty-eight hours of incarceration.

​The district court granted a preliminary injunction in favor of Mr. Walker, which the 11thCircuit vacated finding that the lower court had erred in applying heightened scrutiny to Mr. Walker’s argument.  This formed the basis for the petition for certiorari.  In his petition, Mr. Walker argued that under the Equal Protection and Due Process clauses of the Fourteenth Amendment to the U.S. Constitution, one could not be subjected to imprisonment solely because one was indigent.  One of the judges on the divided 11th Circuit panel had agreed with Mr. Walker; Judge Martin argued that heightened scrutiny should apply because Mr. Walker, and those like him, suffered an absolute deprivation of liberty.

​The majority of the 11th Circuit declined to see a forty-eight-hour period of incarceration as an absolute deprivation of liberty.  Instead, that court framed the issue as not one of poor people being free from wealth-based incarceration, but as one of poor people merely having to wait an “appropriate” amount of time before receiving the same benefit, namely access to pretrial release, as the wealthy.  The court also likened the forty-eight incarceration period to the identical time period allotted for conducting probable cause hearings, which has been upheld under the Fourth Amendment to the Constitution.

​In failing to hear the case, our nation’s Supreme Court has implicitly blessed a law that allows humans to be deprived of their liberty simply because they cannot afford to post a bail, even when the crime with which they are charged carries no jail time.  Through its silence, the Court has reclassified “freedom from incarceration” as a mere benefit — a benefit that simply can be enjoyed more quickly and easily for the rich, and for which the poor may be forced to wait (in a jail cell) to experience.  While incarcerated and waiting to enjoy their “benefit” of pretrial release, men and women like Mr. Walker face the reality that life might not be the same after a “mere” forty-eight hours in jail.  They may no longer have a job.  Their family relationships could be irreparably broken.  The potential ramifications are endless.  And, although the Supreme Court declined to weigh in this time, the issue is bound to come up again, as long as wealth-based incarceration is allowed to continue.

In fact, at least one state determined it would not wait for the courts to rule on important issue.  In August 2018, California became the first state in the nation to pass a law eliminating the cash bail requirement.  That law focused on a suspect’s risk to public safety and his likelihood to return to court instead of the amount in his bank account, and it was set to go into effect in October 2019.  However, the law drew sharp criticism from multiple sources including the bail bond industry and California chapters of the ACLU who worried the law gave judges and prosecutors too much unchecked discretion to keep arrestees detained until trial.  After the bill was signed into law, the bail bond industry quickly rallied to raise millions of dollars and helped amass 400,000 signatures to halt the law until California’s citizens could put it to a vote.

To learn more about current issues in criminal law visit the DelSignore Law Facebook page.