In Hester Amicus Brief, American Bar Association Says “Money Bail” Systems are Unconstitutional and Deserve Supreme Court Review
On behalf of the American Bar Association (ABA), Zuckerman Spaeder LLP today filed an amicus brief urging the U.S. Supreme Court to address the constitutionality of “money bail” systems that require payment to obtain pretrial release. In supporting the petition for a writ of certiorari in Bradley Hester v. Matthew Gentry, the ABA says that Cullman County, Alabama’s use of such a system represents “overt discrimination” based on wealth, “violates core constitutional guarantees, and raises a recurring question long overdue for this Court’s resolution.”
The case concerns Cullman County, Alabama’s use of a fixed money bail schedule, which requires an upfront payment to secure release after most arrests. As a result, those with financial resources are released almost immediately, regardless of risk of flight or danger to the community, while those unable to pay must remain in jail for days—and usually, for weeks—as they await a court hearing and their first opportunity to seek release. And as the brief explains, “While defendants with means walk free immediately, poor arrestees remain detained until and unless they prove—without counsel or any opportunity to present evidence or cross-examine witnesses—that they are neither a flight risk nor a danger to others.”
Among the ABA’s vital contributions are the promulgation of comprehensive recommendations related to the practice of criminal law. The ABA Standards for Criminal Justice, which have been developed over more than 50 years, urge against the use of money bail—and call for pretrial detention decisions to be “based on the facts and circumstances of the defendant and the offense” and not made “categorically.”
In its brief, the ABA says that its “longstanding and deeply considered” opposition to money bail is supported by the Supreme Court’s due process and equal protection precedents. Because Cullman County’s “system deprives individuals of liberty pending trial, it can only be constitutional…if a compelling interest justifies detention in each instance,” according to the brief. However, “no compelling interest supports detaining defendants who cannot afford scheduled bail amounts—and imposing only on them the burden to prove they deserve to be released—while immediately releasing defendants able to pay bail.”
The money bail systems used in Alabama and elsewhere “serve no legitimate public safety purpose, needlessly harm defendants, and impose unnecessary public costs.” This conclusion, based on decades of research, was affirmed in the district court’s original 2018 ruling, which found that the county’s system did not protect the public or ensure that accused individuals appeared for court.
The ABA’s brief also emphasizes the harmful repercussions of unjustly detaining presumptively innocent people, which can mean “losing jobs and the ability to care for family members; it interferes with preparing a defense and leads to worse outcomes at trial and sentencing.” And systems like the one in Cullman County, in which only the indigent are forced to bear these consequences, “undermine both the actual and perceived fairness of the criminal justice system.”
The brief was filed by Zuckerman Spaeder attorneys Adam Abelson, David A. Reiser, and Casey Trombley-Shapiro Jonas and American Bar Association President Deborah Enix-Ross. The original lawsuit was brought on behalf of Bradley Hester by the Southern Poverty Law Center, Civil Rights Corps, the American Civil Liberties Union, and the American Civil Liberties Union of Alabama.