U.S. District Court Judge L. Troy Nunley ruled against the U.S. Justice Department’s equal protection bail theory that was first advanced by the Eric Holder and the U.S. Justice Department in Clanton, Alabama some twenty-two months ago.  A group of plaintiffs lawyers have filed as many as fifteen cases around the country, alleging that the American bail system is a “wealth-based detention scheme” employing the use of fixed schedules based on the criminal charge that violates the equal protection clause.  That talking-point has also been driving policy conversations regarding bail.

Judge Nunley first started by noting that wealth is not a suspect class like race or gender under the equal protection clause.  As such, the standard is whether there is a rational basis for the system employed.  Judge Nunley said the state has an interest in making sure defendants show up for trial, and detention until arraignment is rationally related to that purpose.

This ruling is contrary to the Judge Murphy’s ruling in the Northern District of Georgia, which is presently on appeal before the U.S. Court of Appeals for the Eleventh Circuit.  In that case, the U.S. Justice Department is encouraging the court to hold that “any” period of detention based on wealth violates the equal protection clause.

Judge Nunley did leave alive the possibility of a future due process claim, but said the current complaint is insufficient on the facts to state a claim for relief.  The plaintiff was given leave to file an amended complaint.   Judge Nunley also dismissed the case as a class action, meaning the named plaintiff, Mr. Welchen, is the only plaintiff left in the case.

The plaintiff can instead now proceed directly on appeal to the U.S. Court of Appeals for the Ninth Circuit to try to save the equal protection bail claim.  In a few weeks, we will know what direction the plaintiff plans to go.

For today, however, this represents a complete reversal of fortunes for the Justice Department and their equal protection bail theory they have used to bully small jurisdictions in what was called a guerilla campaign.  While the Department won one case, that is presently on appeal, in a tiny town in Georgia last fall challenging a $160 bail, when the theory was considered in the capitol City of the most populous State in the Country challenging all “wealth-based” detention by all persons including violent felony cases, the theory was clearly rejected.  A copy of Judge Nunley’s order is here.


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