Judge Diarmuid O'Scannlain (left) and Judge Beverly Martin (Photos: Jason Doiy and Aaron Hayes/ALM)

The U.S. Court of Appeals for the Eleventh Circuit has ruled in a split decision that the city of Calhoun's controversial cash bail system is constitutional.

The opinion vacates the preliminary injunction granted by U.S. District Court Judge Harold Murphy of the Northern District of Georgia, who has twice ruled that Calhoun's misdemeanor bail policy is unconstitutional for allowing those with cash to bail out of jail while holding others.

“That conclusion was based on legal error by (1) failing to recognize a presumption that a bail determination made within 48 hours is constitutionally valid and (2) wrongly assuming that the Equal Protection Clause forbids jurisdictions from offering comparatively speedier release to those able to meet a bail schedule,” Ninth Circuit Judge Diarmuid O'Scannlain, sitting by designation, wrote for the majority. “A district court abuses its discretion … when it applies the incorrect legal standard.”

O'Scannlain was joined by Judge Julie Carnes. They remanded the class action lawsuit to Murphy for consideration of other claims.

“We're very pleased that the city of Calhoun's standing bail order has been ruled constitutional,” said J. Anderson Davis, an attorney with Brinson Askew Berry in Rome, who is defending the city.

The ruling drew immediate cheers from the American Bail Coalition, a bail industry organization of businesses who lend money for that purpose. The group sent out a news release calling the decision “landmark” and quoting its own executive director, Jeff Clayton: “We take enormous satisfaction that we have prevailed in our historic defense of America's bail system. We never doubted the constitutionality of bail and bail schedules. We felt strongly that the lack of adequate due process in many of the cases that challenged cash bail was the actual central factor behind plaintiffs and their complaints against the system—not the core concept of bail itself. “

Judge Beverly Martin wrote a stinging dissent.

“Maurice Walker was jailed by the City of Calhoun for six days because he was too poor to pay his bail,” Martin said. “He challenges the City's practice of jailing people before trial when they are too poor to make bond, arguing it violates the constitutional guarantees of due process and equal protection. The Majority rejects this claim, characterizing the pretrial jailing as 'merely wait[ing] some appropriate amount of time to receive the same benefit as the more affluent.'”

“I believe the Majority rewrites this court's binding precedent in Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc), which held that '[t]he incarceration of those who cannot [pay for pretrial release], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements,'” Martin said. “The Majority fails to recognize this infringement on the rights of indigents, so I dissent.”

Sarah Geraghty of the Southern Center for Human Rights said Thursday that the plaintiffs' team will be conferring to decide whether to ask for en banc review.

“Maurice Walker was arrested in the City of Calhoun for being a pedestrian under the influence of alcohol. He could not afford to pay the preset bail sum of $160. Under the City's original policy, Mr. Walker would have had to wait 11 days after his arrest to see a judge for a bail hearing,” she said by email. “During the litigation, the City changed its policy to require that ability to pay hearings would occur within 48 hours after arrest. The federal trial court then enjoined the revised policy, reasoning that it violated the Constitution since it permitted people of means to go free while detaining indigent people for up to 48 hours, only because they could not pay.”

She said the decision sanctions the 48-hour timeline to see a judge. “Specifically, the Court held that 'indigency determinations for purposes of setting bail are presumptively constitutional if made within 48 hours of arrest,'” she said.

Geraghty said the decision means “at the very least, jurisdictions that detain arrestees for longer than 48 hours before conducting an inquiry into ability to pay bail would be wise to revise their money bail policies.”

She added, “A better, more morally defensible, and economically sound response would be to follow the lead of jurisdictions as diverse as Chicago, New Orleans, Nashville, and Atlanta in eliminating wealth-based detention all together.”