U.S. Third Circuit - The FindLaw 3rd Circuit Court of Appeals Opinion Summaries Blog

No Constitutional Right to Cash Money Bail, 3rd Circuit Rules

The Constitution does not guarantee the right to bail. That's not news, and the Eighth Amendment explains it.

The Constitution does not guarantee the right to cash-money bail, either. That is news and probably requires some explanation.

In Holland v. Rosen, the U.S. Third Circuit Court of Appeals said a criminal defendant has no federal right to deposit money or to obtain a corporate surety to ensure future appearance in court. It confirmed what lawmakers had been saying in New Jersey for years.

No Money-Only Bail

New Jersey, like most states, allowed defendants to post money bail pending trial or subsequent determinations in criminal cases. However, the state changed the law in 2017 after concluding money-only releases were not fair to poor defendants.

A study showed that poorer defendants -- even when they posed no flight risk and were no danger to the community -- were held longer than other defendants who could afford bail. The poor also pleaded guilty and received harsher sentences more often.

Brittan Holland, who was accused of second-degree assault in a bar fight, challenged the law because it called for a risk assessment rather than allow him to simply post bail. He was assessed and released on an ankle monitor instead.

A trial judge rejected his challenge, and the Third Circuit affirmed. The appeals court upheld the state's non-monetary conditions of release.

No Wallet Liberty

Even if the Eighth Amendment provided a "right to bail," the appeals court said, it did not mean a "right to make a cash deposit or to obtain a corporate surety bond to secure pretrial release." Nor does it mean exclusively monetary bail, the judges said.

"This important decision confirms what bipartisan lawmakers in New Jersey have known for years: there is no reason -- legal or otherwise -- why the thickness of anyone's wallet should dictate their liberty and freedom," said Alexander Shalom, an attorney with the American Civil Liberties Union.

According to its press release, the ACLU filed a brief in the case, in part, to counteract an insurance industry effort to "force NJ to use monetary bail."

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