The Justice Department said in a court filing Thursday night that holding people in jail purely because they are too poor to pay a fixed bail fee is a violation of their constitutional rights. This is the first time the DOJ has made this argument in a federal appeals court.
"Although the imposition of bail ... may result in a person's incarceration, the deprivation of liberty in such circumstances is not based solely on inability to pay," the amicus curiae brief said. "But fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for ability to pay and alternative methods of assuring future appearance, do not provide for such individualized determinations, and therefore unlawfully discriminate based on indigence."
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