The Department of Justice filed a statement of interest today with the U.S. District Court for the Middle District of Alabama in Varden v. City of Clanton. In this class action litigation, the plaintiff alleges that incarcerating individuals solely because of their inability to pay a cash bond violates the U.S. Constitution.

In her complaint, Varden alleges that she was required to pay a cash “bond” in a fixed dollar amount for each misdemeanor charge she faced or else she would remain incarcerated. In its statement of interest, the department aims to assist the court in evaluating the constitutionality of fixed-money bail practices. The statement asserts that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes poor public policy. Instead, courts should make an individualized assessment of each defendant to determine whether the defendant is a threat to public safety or a flight risk. Pretrial detention should be based on an objective evaluation of these factors, not on the defendant’s ability to pay.

“Bail practices that are indifferent to an individual’s ability to pay are incompatible with our Constitution and contrary to our values,” said Attorney General Eric Holder. “By taking action in this case, the Justice Department is sending a clear message: that we will not accept criminal justice procedures that have discriminatory effects. We will not hesitate to fight institutionalized injustice wherever it is found. And we will never waver in our effort to ensure that all Americans – regardless of background or circumstance – receive the equal rights and protections to which they are entitled under the law.”

“The criminal justice system should not work differently for the indigent and the wealthy” said Acting Assistant Attorney General Vanita Gupta of the Civil Rights Division. “Bail practices that create a two tiered system of justice by treating the indigent and the wealthy differently undermine fundamental fairness in our nation’s criminal justice system.”

The statement of interest provides the court with a framework to assess the plaintiff’s claim of an unlawful bail scheme. As the department explains in the statement of interest, “Fundamental and long-standing principles of equal protection squarely prohibit bail schemes based solely on the ability to pay. Fixed-sum bail schemes do not meet these mandates. By using a predetermined schedule for bail amounts based solely on the charges a defendant faces, these schemes do not properly account for other important factors, such as the defendant’s potential dangerousness or risk of flight. The federal government recognized as much when it reformed its bail system over fifty years ago.”

Varden v. City of Clanton was filed in January 2015. The plaintiff seeks declaratory, injunctive and compensatory relief. A preliminary injunction hearing will be held on Feb. 24.