James Madison was prompted to draft the prohibition against excessive bail in the Eighth Amendment because of abuses under the English common law. In our state, recently, the use of “standing bail orders” and other arbitrary use of money bail as a condition to secure pretrial freedom have been found or are being contested as constitutionally offensive as they relate to poor people who lack the ability to pay. Federal courts are being asked to find—or have concluded—that economic means should not determine one's pretrial status. In addition, Senate Bill 407, prompted by the recommendations of Georgia's Criminal Justice Reform Council, would limit the use of money bail on a most necessary statewide basis.

Until we get a statewide solution, we should be grateful to the Southern Center for Human Rights, the ACLU and others for attacking the misuse of money bail in some of the most egregious instances (Calhoun, Atlanta Municipal Court, Glynn County). In the meantime, citizens from all across the political spectrum should recognize that having poor people kept in jail because of their inability to make money bail results in serious adverse consequences: They are unable to support their families, keep their jobs and meet other obligations. In the majority of these misdemeanor cases, the accused will not receive a custodial sentence after entry of a plea or a conviction. It is absurd for the individuals involved and for our community to suffer the private pain and public expense of detention—at a time when the individuals are Constitutionally presumed to be innocent—only to receive noncustodial sentences after entering a guilty plea or being convicted.

Often, common sense and constitutional compliance agree.

W. Terence Walsh

Chair Emeritus

Truancy Intervention Project