A federal judge in New Orleans has ruled that city’s cash bail system is unconstitutional, similar to a case argued unsuccessfully in Arkansas state court last year.

The court said the policy denies due process to poor people to hold them when they can’t afford cash bail.  This follows a similar ruling by a federal appellate court in a Texas case.


The New Orleans decision also ruled unconstitutional diverting a portion of bail fees to a court operations fund.

The court decisions are in courts without jurisdiction in Arkansas, but we also have a cash bail system. It was challenged in state court and upheld 5-2 last year by the Arkansas Supreme  Court, with Howard Brill quoting Johnny Cash’s “Starkville City Jail” in support of his dissent. Brill said requiring cash-only for bail strips a person of a constitutional right to provide sufficient surety for their release.


Sen. Bernie Sanders has proposed legislation to end cash bail nationwide. It’s had a disproportionate impact on people of color and the poor.

As The Nation notes, 70 percent of the people in jail have not been convicted of a crime, they just couldn’t post bail.


Here’s the background from New Orleans on a long look at the unfairness of the practice.

The ruling came today in a class action suit over practices in a magistrate court that included minimum bail amounts with little to no opportunity for testimony by defendants on ability to pay. The magistrate argued the case was moot because he intended to change procedures, including taking ability to pay into account, but the federal court said a voluntary statement wasn’t enough to dismiss the case.


Wrote Judge Eldon Fallon:

As discussed above, the record indicates that Judge Cantrell’s bail procedures have not provided notice of the importance of the issue of the criminal defendant’s ability to pay, inquiry into the ability to pay, findings on the record regarding ability to pay and consideration of alternative conditions of release, or application of a legal standard in the determination of the necessity of pretrial detention. Accordingly, these procedures violate Plaintiffs’ procedural due process rights; Plaintiffs’ are entitled to summary judgment on Count One and it is appropriate to grant Plaintiffs’ motion for declaratory judgment.