This week saw two victories for criminal justice in the South, as a Tennessee appeals court and the city of Atlanta both struck down criminal fee payment structures.
On Tuesday, Atlanta Mayor Keisha Lance Bottoms signed a law eliminating cash bond requirements for certain low-level offenders. The same day, a Tennessee appeals court ruled that a state law requiring individuals to pay fees for their own DUI convictions is unconstitutional.
Bottoms signed the Georgia ordinance after it was unanimously approved by the Atlanta City Council. It will allow people charged with nonviolent misdemeanors to be released without paying bail.
The change follows a letter sent to Bottoms by civil rights groups outlining the constitutional issues with the practice of mandatory cash bail regardless of defendants’ ability to pay. The letter, written by the Southern Center for Human Rights and the Civil Rights Corps, also noted that the city could leave itself open to lawsuits if it failed to make changes.
“Money bail systems that detain only low-income people devastate families and communities, overcrowd our country’s jails, lead to increased crime, cost municipalities billions of dollars in excess costs, and violate basic constitutional rights,” the letter said. “There is no place for them in our society.”
Under Obama in 2016, the U.S. Department of Justice argued that similar preset bail amounts in nearby Calhoun, GA unlawfully discriminated against poor defendants.
In one case covered by Atlanta public radio station WABE, a pregnant woman who had a dispute with her roommate was jailed for three weeks because she couldn’t pay bail, causing her to lose both her job and apartment. In another, a mentally ill man charged with disorderly conduct sat in jail for over two months due to an inability to pay bail of $500.
Criminal justice reform organizations celebrated Tuesday’s legal change.
“This was a win for fairness and equality in our legal system. Our City Council members saw through the bail industry propaganda and did the right thing,” said Southern Center for Human Rights Managing Attorney Sarah Geraghty.
Civil rights advocates have increasingly focused on the elimination of cash bail as a key strategy to chip away at mass incarceration. Across the country, low-level offenders are jailed for long stretches of time simply because they can’t afford bail, while their wealthier counterparts are released.
According to a 2017 analysis by the Prison Policy Initiative, over 70 percent of people held in local jails have not been convicted of a crime, and 68.8 percent of those are not accused of a violent crime. The Prison Policy Initiative also found in a 2016 report that the median income of people in jail is 54 percent lower than that of their non-incarcerated counterparts.
Cash bail also perpetuates racial disparities in the prison system.
“Unsurprisingly, white men have the highest incomes before incarceration while Black women have the lowest incomes before incarceration,” the 2016 Prison Policy Initiative report found. “Although, on paper, it is illegal to detain people for their poverty, such detention is the reality in too many of our local jails.”
Also on Tuesday in Tennessee, an appeals court ruled that a law requiring those convicted of drunken driving to pay $250 to a state agency is unconstitutional.
The law requires individuals convicted of DUI through a blood or breath test to pay a fee to the Tennessee Bureau of Investigation (TBI) to help pay for intoxication testing costs. Such fees amount to more than $3 million per year in funding.
More than 20 people charged with DUI in Tennessee argued that the system gives TBI forensic scientists a financial incentive to falsify results, because when the tests don’t lead to DUI convictions, defendants aren’t required to pay. Individuals who can’t afford to pay for an independent blood test have no way to challenge the state’s findings.
A DUI attorney testified before the state appeals court that “judges and prosecutors relied heavily on the accuracy of the TBI’s test results and that these test results influenced whether a defendant would fight the case, which was very expensive, or enter a guilty plea.”
In addition, the court was presented with evidence that 85 percent of people plead guilty after seeing the state test results, rather than hiring an independent expert to dispute the results.
The appeals court ruled that blood and breath test results collected under the $250 fee law should not be allowed as evidence, because the law violates due process.
“Because the state has the duty to pursue truth and justice, it has the obligation to provide an accurate, unbiased BAC [blood alcohol concentration] result, not a result that is deemed correct until disproved by the defendant,” the court held. “Under the scenario suggested by the state, the defendant is forced to obtain an independent test… and to hire an expensive expert to challenge the BAC result in order to do what an unbiased TBI forensic scientist should have done from the beginning.”