Equal Justice Protection Threatened by Bail Policies

A circuit court has held that keeping low-risk defendants in jail that are unable to pay bail until trial “has become a threat to equal justice under the law”

Curry v. Yachera, 2016 BL 286194, 3d Cir., No. 15-1692, 9/1/16.

   The Third Circuit held that a no contest plea given by a defendant held in jail bars him from seeking a claim for malicious prosecution. The dismissal, however, noted that holding low-risk defenders in jail until their court date threatened equal justice. The defendant was arrested after falsely returning $130 of items to Wal-Mart, later being held in jail for two months because he could not make the $20,000 bail that was set. The defendant then made his no contest plea, which released him from jail but only after losing his job and missing the birth of his first child.

   The court affirmed the district court’s dismissal with a modification, but it went further and espoused hope that bail reform would be forthcoming. The court stated, “It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail…Further, those unable to pay who remain in jail may not have the ‘luxury' of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.”


http://www.bloomberglaw.com/public/document/Curry_v_Yachera_No_151692_2016_BL_286194_3d_Cir_Sept_01_2016_Cour.

Government Must Quickly Place Aliens Recently Released from Jail into Detention

Under the Immigration and Naturalization Act (INA), the government must act quickly to place an alien into mandatory detention after they are recently released from jail to hold them without bond 

Preap v. Johnson, 2016 BL 252253, 9th Cir., No. 14-16326, 8/4/16.

   The Ninth Circuit joined a minority of jurisdictions in requiring the government to act quickly to place aliens recently released from jail into mandatory detention without bond under the INA. The controversy arose because of the statute’s language that requires the government to take an alien into custody “when the alien is released” from jail. Relying on statutory context and legislative history, the court held that there cannot be a lengthy period between an alien’s release and subsequent detention. It said, “[B]ecause Congress’s use of the word ‘when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.” The circuit court suggested that the individual circumstances of each case should be considered to determine if government detention occurred quickly after a release from jail.

https://www.bloomberglaw.com/public/desktop/document/Preap_v_Johnson_No_1416326_NO_1416779_2016_BL_252253_9th_Cir_Aug_?1470942090

Government Must Notify Bail Bond of Material Modification of Bond Conditions

A bail bond company is not liable for any material modifications of the bond’s conditions without actual notice by the court first

United States v. Mohammed-Ali, 2016 BL 156093, 6th Cir., No. 15-6003, 5/17/16.

   Constructive notice of a change in a bond’s conditions is not sufficient for a bail bond agency to be liable.  Actual notice of a change in conditions by a company is both fair and practical, the court noted, further stating that it was “unrealistic to expect a bail bond company to constantly sift through every motion in all its cases to check whether a bond’s conditions have been altered.” Moreover, the burden of notice is better placed on some other party, including the court, defendant, or prosecutor. In enforcing a bond’s liability, the court must send actual notice by mail, a benefit that should be extended to bail bond companies when “a motion that leads to the condition…creates the bail bond’s liability in the first place.”

http://www.bloomberglaw.com/public/document/United_States_v_MohammedAli_No_156003_2016_BL_156093_6th_Cir_May_