The City of Calhoun, Georgia, adopted a scheme by which bail was set to a pre-determined amount, resulting in Maurice Walker being held in jail for nearly 2 weeks on misdemeanor public drunkenness charges. Walker challenged detention on behalf of himself and those similarly situated, including persons held on traffic offenses. 

The federal district court got it right and enjoined the city from enforcing its scheme: when setting bail for criminal defendants, basic due-process principles require a judge to take into account the defendant’s income and set an individually payable amount. That rule exists to ensure against a manifest injustice, converting pre-trial liberty from a right into a privilege of the wealthy. But Calhoun is pursuing an appeal, now making its second appearance before the U.S. Court of Appeals for the Eleventh Circuit. As Cato points out in our amicus brief supporting Walker (essentially the same one we filed at an earlier stage of litigation), the due-process rule that the city violated is quite literally as old as the common law.

That right to individualized bail has existed at law for nearly a millennium. Following the Norman Conquest of England in 1066, England developed a robust bail system which ensured the right to pre-trial liberty. The 1215 Magna Carta enshrined that right: “No free man shall be arrested or imprisoned … or victimized in any other way … except by the lawful judgment of his peers or by the law of the land.” When the Stuart Kings of England attempted to impose further absolute monarchy, they chose to attack the right to pretrial liberty and aggrandize royal detention powers. In 1627, Charles I arrested five knights for unnamed offenses. Counsel for the knights challenged their detention on the ground of the Magna Carta’s liberty guarantee. The royalist King’s Bench denied that defense—contravening 400 years of law—but the House of Commons overruled the case in 1628 by passing the Petition of Right: “no freeman in any such manner as is before mentioned, be imprisoned or detained.”

Charles I was eventually beheaded in 1649 by rebel forces under parliamentary command for his constant usurpation of English constitutional rights. When his son Charles II was restored to the throne, he also attempted to impose absolutist policies, particularly regarding the power to detain. His abuse of jurisdictional loopholes led to the 1679 Habeas Corpus Act. Charles II was also (in)famous for setting very high bails, an issue Parliament addressed in 1689.

The same right to individualized bail is protected in the U.S. Constitution’s due process clauses—the Supreme Court has said as much in United States v. Salerno (1987) and Stack v. Boyle (1951)—as well as the Eighth Amendment’s prohibition on excessive bail. Constitutional history could not be clearer about bail and pretrial liberty: it must be available and affordable to all but the most dangerous defendants.

The City of Calhoun now stands with the Stuart Kings among the tyrants of history who usurp ancient rights—and on appeal is trying to defend that title. The city’s best course would still be to abandon its defense and comply with basic due-process requirements that preserve the freedom of the poor. That would save its taxpayers some legal fees to boot. But it has refused to do so, so this winter the Eleventh Circuit will again be hearing Walker v. City of Calhoun.