Sally Yates (Photo: John Disney/ ALM)

Sally Yates, famously fired by President Donald Trump as acting attorney general, has joined with 28 prosecutors and law enforcement officials from around the country in filing an amicus brief with the U.S. Court of Appeals for the Eleventh Circuit opposing the City of Calhoun's so-called money bail system.

The issue is as framed in the brief is “whether the use of a fixed money bail schedule that results in the detention of indigent misdemeanor defendants for up to 48 hours solely based on their inability to pay is constitutionally permissible where the City of Calhoun has offered no explanation for why it needs 48 hours to determine indigence and where other more effective alternatives exist.”

“A bail system that indiscriminately jails indigent individuals charged with misdemeanors based solely on their economic status while immediately releasing those who can afford to post a bond is inconsistent with our country's promise of equal justice,” Yates said in a news release Tuesday from Georgetown Law School, where she now teaches.

The brief was drafted by Georgetown law's Institute for Constitutional Advocacy and Protection Senior Litigator Mary McCord, who served for 20 years as a federal prosecutor and was acting assistant attorney general for national security. In August, the institute filed a similar amicus brief on behalf of prosecutors in O'Donnell v. Harris County, a suit challenging a money bail system in Texas.

“As career prosecutors, we know that using bail to keep poor people detained pretrial solely based on their inability to pay not only offends the Constitution, but also is counterproductive from a law enforcement perspective,” McCord said in the news release. “We depend on victims, witnesses, and jurors to participate in a criminal justice system they see as fair, and a system that determines freedom on the basis of wealth undercuts that notion.”

Another signer, former federal prosecutor and Fair and Just Prosecution Executive Director Miriam Krinsky, said in the news release: “It is well settled that alternatives to money bail—in place in jurisdictions around the country—are not simply the right approach, but are also a more sensible strategy that keep our communities safe by using individualized determinations of risk of flight and dangerousness. It is heartening to see prosecutive leaders coming together to speak out on the need to move away from a broken cash bail system and promote fair and equitable bail practices that enhance trust in, and contribute to the legitimacy of, our justice system.”

The brief acknowledged the City of Calhoun's initial response to the lawsuit over money bail was to adopt a standing order requiring bail hearings within 48 hours and the release of those who can establish the inability to pay. But the prosecutors argued that detention for even a limited amount of time can “yield serious harms such as loss of a job or disrupted family connections.” The prosecutors said Calhoun's standing bail order “does not go far enough to dispel the harm that the inequitable treatment of indigent misdemeanor defendants causes to the public's perception of the criminal justice system, and thus to law enforcement efforts.”

Furthermore, some of the offenses to which the order applies are not even offenses for which jail time is possible, the prosecutors said. For example, Maurice Walker—the named plaintiff—spent six days in detention for being a pedestrian under the influence of alcohol, which is not a jailable offense.

Additionally, the prosecutors said the bail amounts are set at the exact figures of the fines applicable for the charged offenses after conviction. So the schedule contributes to perceptions that bail is being used to extract a fine from the defendant prior to a finding of guilt.

The signers include current sitting District Attorneys Mark Dupree (Kansas City, Kansas), Stanley Garnett (Boulder, Colorado), Mark Gonzalez (Corpus Christi, Texas), Christian Gossett (Winnebago County, Wisconsin), David Soares (Albany, New York), Raúl Torrez (Albuquerque) and Cyrus Vance (New York County, New York), State Attorney Marilyn Mosby (Baltimore) and Prosecuting Attorney Carol Siemon (Ingham County, Michigan) and former Police Chiefs William Lansdowne (San Diego and Richmond, Calif.) and Brendan Cox (Albany, New York).

Correction: The initial version of this article misstated that the Calhoun case is before the U.S. Supreme Court. It is before the U.S. Court of Appeals for the Eleventh Circuit.