Former U.S. Solicitor General Paul D. Clement Files Amicus Brief in Defense of the Constitutional Right to Bail

Former U.S. Solicitor General Paul D. Clement Files Amicus Brief in Defense of the Eighth Amendment Constitutional Right to Bail on Behalf of the American Bail Coalition, the Georgia Association of Professional Bondsmen, and the Georgia Sheriffs’ Association

June 21, 2016

Atlanta, GA—Lawyers from the Washington, D.C.-based Equal Justice Under Law foundation have been suing cities and counties across the country for the past 16 months in order to achieve their ultimate stated goal of eliminating monetary conditions of bail. Since Eric Holder’s Justice Department filed a statement of interest in the Clanton, Alabama case in February, 2015, the “bail is unconstitutional” talking point has caused severe damage to the rule of law in this country, making people wonder when this novel theory of bail and equal protection will come to some resolution.

That answer began to be formulated some months ago when ABC and GAPB teamed up to hire former Solicitor General of the United States Paul D. Clement to file a brief in support of the City of Calhoun, Georgia in the case of Walker v. City of Calhoun, Georgia, where a U.S. District Judge upheld the plaintiffs theory of bail that if an individual cannot afford their bail and another individual is released immediately because they can, the system is unconstitutional. Mr. Clement filed the brief today, June 22, 2016, on behalf of ABC, GAPB, and the Georgia Sheriffs’ Association, an association of the 159 elected sheriffs in Georgia. The brief is here:

Said ABC’s Jeff Clayton: “Mr. Clement is one of the finest constitutional lawyers of our time, and we are honored that he agreed to take up the cause of defending the constitutional right to bail on our behalf. I am pleased to announce this development on behalf of our member companies, Accredited Surety and Casualty Company, Inc., American Surety Corporation, AIA Surety, Bankers Surety, Black Diamond Insurance Company, Lexington National Insurance Corporation, Sun Surety, Universal Fire & Casualty Insurance Company, and Whitecap Surety, and also our agent-affiliate members. I would also like to thank American Contractors Indemnity Company, BailUSA, Inc., and Palmetto Surety Corporation for contributing to this effort.”

GAPB President Scott Echols explained why the issue was critical and had ramifications beyond this case: “We heard from hundreds of lawyers, judges, law enforcement, and others throughout the 11th Circuit and beyond who were all telling us, we need constitutional guidance. We need to understand what is constitutional and what is not when it comes to bail. That is why you saw the Georgia Sheriffs’ Association join with us in this important effort.” GAPB’s Charles Shaw added, “We knew at that point that hiring Mr. Clement was necessary not just to get the Walker case overturned, but to get cities, towns, counties, and states the direction they need to be able to run an efficient criminal justice system that is blessed by the United States Constitution.”

In the brief, Mr. Clement wasted no time getting right to the point: “Bail is a liberty-promoting institution as old as the republic,” he wrote. After detailing the history of bail and the problems with the plaintiffs’ theory of bail, Mr. Clement succinctly summarized the argument: “Plaintiffs would have this Court effectively abolish monetary bail on the theory that any defendant is entitled to immediate release based on an unverified assertion of indigency. Nothing in the Constitution supports that extreme position. In fact, the text and history of our founding charter conclusively confirm that monetary bail is constitutional.”

Mr. Clement noted that the plaintiffs’ attorneys have been “touting” their efforts as the coming end of monetary bail in the United States. “But the Constitution clearly permits communities to adopt monetary bail procedures aimed at securing appearance at trial and protecting society from dangerous individuals,” he explained. “As a textual matter, the Eighth Amendment pre-supposes the permissibility of monetary bail. If Plaintiffs’ theory were correct, the Eighth Amendment would read, ‘no bail shall be required.’”

The plaintiffs’ attorneys will file their opening brief, followed by any other briefs in support of the plaintiffs, which we are expecting. The case will then be set for oral argument, likely sometime later in the fall.

ABC Chairman Mark Holtschneider said the cooperation between ABC and GAPB was “crucial” in moving this effort forward. “We chose to embrace the importance of this moment by setting everything else aside and bringing our best effort to the table, which is what it is going to take to finally put an end to these unmeritorious lawsuits.”


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