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Herefore, Has Roots That Extend Back to Medieval England, Where Bail Originated “As a Device to Free Untried Prisoners.” See Daniel J No. 18-814 In the Supreme Court of the United States __________ MAURICE WALKER, on behalf of himself and others similarly situated, Petitioner, v. CITY OF CALHOUN, GEORGIA, Respondent. __________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit __________ BRIEF OF THE CATO INSTITUTE AS AMICUS CURIAE SUPPORTING PETITIONER Michael Gervais Clark M. Neily III SUSMAN GODFREY LLP Jay R. Schweikert 1900 Avenue Of The Stars, Counsel of Record Suite 1400 CATO INSTITUTE Los Angeles, California 90067- 1000 Mass. Ave. NW 6029 Washington, DC (310) 789-3100 20001 [email protected] (202) 216-1461 [email protected] January 28, 2019 i TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................ ii INTEREST OF AMICUS CURIAE ............................. 1 SUMMARY OF ARGUMENT ..................................... 2 ARGUMENT ................................................................ 4 I. The Historical Development of Bail Confirms the Right to Pretrial Liberty Through Bail for Misdemeanants. ..................................................... 4 A. English Authorities Confirm the Right to Pretrial Liberty Through Bail for Misdemeanants. ................................................ 4 B. Constitutional and Common Law in the United States Confirm the Right to Pretrial Liberty through Individualized Bail. .......................... 10 C. Bail Schemes Like the City of Calhoun’s Are Inconsistent with the History and Doctrine Recognizing the Right to Pretrial Liberty. ..... 12 II. Protecting Pretrial Liberty Is All the More Important Given the Major Role that Money Bail Schemes Play in Facilitating Coercive Plea Bargaining. ........................................................... 18 CONCLUSION .......................................................... 21 ii TABLE OF AUTHORITIES Cases Barker v. Wingo, 407 U.S. 514 (1972) ....................... 20 Bates v. Pilling, 149 Eng. Rep. 805 (K.B. 1834) (Richards) ............................................................... 10 Bearden v. Georgia, 461 U.S. 660 (1983) .................. 17 Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989) ........................................ 15 Darnel’s Case, 3 How. St. Tr. 1 (1627) ........................ 7 Ex Parte Hutchings, 11 Tex. App. 28 (Tex. 1881) ..... 16 Griffin v. Illinois, 351 U.S. 12 (1956) ........................ 16 Jones v. Kelly, 17 Mass. 116 (Mass. 1821) ................ 16 Jones v. United States, 526 U.S. 227 (1999) ............. 19 King v. Bowes, 99 Eng. Rep. 1327 (K.B. 1787) ......... 10 Lafler v. Cooper, 566 U.S. 156 (2012) ....................... 19 Neal v. Spencer, 88 Eng. Rep. 1305 (K.B. 1698) ....... 10 Stack v. Boyle, 342 U.S. 1 (1951) ............. 12, 13, 14, 15 Tate v. Short, 401 U.S. 395 (1971) ............................ 16 United States v. Barber, 140 U.S. 164 (1891) ........... 13 iii United States v. Brawner, 7 F. 86 (W.D. Tenn. 1881) ................................................................................ 15 United States v. Edwards, 430 A.2d 1321 (D.C. 1981) .................................................................................. 6 United States v. Motlow, 10 F.2d 657 (7th Cir. 1926) ................................................................................ 15 United States v. Salerno, 481 U.S. 739 (1987) ... 13, 14, 18 Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018) ................................................................... 3, 20 Walker v. City of Calhoun, No. 4:15-CV-0170, 2016 WL 361612 (N.D. Ga. Jan. 28, 2016) ....................... 3 Williams v. Illinois, 399 U.S. 235 (1970) .................. 17 Constitutional Provisions U.S. CONST. amend. V ................................................ 13 U.S. CONST. amend. XIV, § 1 ..................................... 13 U.S. CONST., amend. VIII .................................... 12, 15 Statutes 18 U.S.C. § 1343(f) ..................................................... 14 Article I, § 9, of the Virginia Declaration of Rights of 1776......................................................................... 15 Bill of Rights, 1 W. & M., s.2, c. 2 (1689) .............. 9, 15 iv Frame of the Government of Pennsylvania of 1682, art. XI...................................................................... 11 Habeas Corpus Act of 1679, 31 Car. 2, Ch. 2 (1679) .. 8 Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 73 ........... 12 Northwest Ordinance of 1787, Art. 2 ........................ 11 Petition of Right, 3 Car. 1, Ch. 1 (1628) ...................... 7 Statute of Westminster I, 3 Edw. 1, c. 15 (1275) ........ 7 Regulations O.C.G.A. § 40-6-95 ....................................................... 2 Other Authorities 1 J. Chitty, A Practical Treatise on the Criminal Law (Philadelphia ed. 1819) ............................................ 9 2 Frederick William Polluck & Frederic William Maitland, The History of English Law Before the Time of Edward I (2d ed. 1984 [1898]) .................... 9 A. Howard, Magna Carta: Text and Commentary (1964) .................................................................. 6, 13 Caleb Foote, The Coming Constitutional Crisis in Bail: I, 113 U. PA. L. REV. 959 (1965) ............... 8, 11 Daniel J. Freed & Patricia M. Wald, Bail in the United States: 1964 (1964) ....................................... 4 v Elsa De Haas, Antiquities of Bail: Origin and Development in Criminal Cases to the Year 1275 (1940) ........................................................................ 4 Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV. OF BOOKS, Nov. 20, 2014 ................................ 19 John M. Beattie, Crime and the Courts in England: 1660-1800 (1986) .................................................... 19 Juleyka Lantigua-Williams, Why Poor, Low-Level Offenders Often Plead to Worse Crimes, THE ATLANTIC (July 24, 2016), https://www.theatlantic.com/politics/archive/2016/0 7/why-pretrial-jail-can-mean-pleading-to-worse- crimes/491975/ ........................................................ 20 June Carbone, Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, 34 SYRACUSE L. REV. 517 (1983) .................................................................... 5, 6 NAT’L ASS’N OF CRIM. DEF. LAYWERS, THE TRIAL PENALTY: THE SIXTH AMENDMENT RIGHT TO TRIAL ON THE VERGE OF EXTINCTION, AND HOW TO SAVE IT (2018) ...................................................................... 19 Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711 (2017) ............................................................... 21 Proceedings in Parliament Relating to the Liberty of the Subject, 3 How. St. Tr. 59 (1628) ....................... 8 vi The Bail Project, Why Bail?, https://bailproject.org/why-bail/ (last visited Jan. 28, 2019) ................................................................. 21 Timothy R. Schnake, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform (Sept. 2014) ......................................................................... 5 William F. Duker, The Right to Bail: A Historical Inquiry, 42 ALB. L. REV. 33 (1977) ................. 6, 7, 10 1 INTEREST OF AMICUS CURIAE1 The Cato Institute is a nonpartisan public policy research foundation founded in 1977 and dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s Project on Criminal Justice was founded in 1999, and focuses on the scope of substantive criminal liability, the proper and effective role of police in their communities, the protection of constitutional and statutory safeguards for criminal suspects and defendants, citizen participation in the criminal justice system, and accountability for law enforcement officers. The Cato Institute has a strong interest in this case because the City of Calhoun’s practice of detaining indigent misdemeanor defendants based solely on their inability to pay a predetermined money bail amount offends the right to pretrial liberty and is inconsistent with the historical purposes of bail. 1 Rule 37 statement: All parties were timely notified and consented to the filing of this brief. No part of this brief was authored by any party’s counsel, and no person or entity other than amicus funded its preparation or submission. 2 SUMMARY OF THE ARGUMENT On September 3, 2015, petitioner Maurice Walker was arrested by the Calhoun Police Department (“CPD”) and charged with being a pedestrian under the influence, a misdemeanor offense that carries a fine, but no jail time. O.C.G.A. § 40-6-95. CPD officers brought Walker to the local jail, booked him, and detained him in a holding cell. The City of Calhoun uses a money bail schedule to determine how much individuals—like Walker— arrested and charged with misdemeanor offenses must pay for pretrial release. The schedule provides a predetermined bond amount for each offense. Walker had two options: either he could be released immediately by paying the standard $160 bond set for his charge pursuant to the predetermined money bail schedule or he could remain in jail and request— at his first appearance—that the court set his bond amount by taking into account his individual circumstances, including his indigence. Neither Walker nor his family could pay the standard $160 bond, so he remained in jail pending his first appearance scheduled for September
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