LOS ANGELES (CN) – Judges must consider a detainee’s ability to pay when setting bail in immigration court, a Ninth Circuit panel ruled Monday.
Writing for the majority, Circuit Judge Stephen Reinhardt said it doesn’t make sense for the government not to consider financial circumstances when setting bond since the whole point of bail is to incentivize an arrestee to show up to their next court date.
“Since the government’s purpose in conditioning release on the posting of a bond in a certain amount is to ‘provide enough incentive’ for released detainees to appear in the future, we cannot understand why it would ever refuse to consider financial circumstances: the amount of bond that is reasonably likely to secure the appearance of an indigent person obviously differs from the amount that is reasonably likely to secure a wealthy person’s appearance,” Reinhardt wrote.
“Nor can we understand why the government would refuse to consider alternatives to monetary bonds that would also serve the same interest the bond requirement purportedly advances. This is especially true in light of the empirically demonstrated effectiveness of such conditions at meeting the government’s interest in ensuring future appearances.
“By maintaining a process for establishing the amount of a bond that likewise fails to consider the individual’s financial ability to obtain a bond in the amount assessed or to consider alternative conditions of release, the government risks detention that accomplishes ‘little more than punishing a person for his poverty,’” Reinhardt added, quoting Bearden v. Georgia, a 1983 Supreme Court case ruling it a violation of due process to revoke a person’s probation due to failure to pay a fine without first considering that person’s financial circumstances.
Michael Tan, an attorney with the ACLU’s immigration rights project in New York, called the ruling historic.
“It’s the first ruling that requires judges to consider people’s financial circumstances when setting bond,” he said. “Much like the criminal justice system, authorities over-rely on cash bail as a means of ensuring people show up for court when we know from the wealth of research that’s been done, when you rely on cash bail you end up discriminating against people based on wealth.”
Tan represents a class of immigrants detained pending removal proceedings at four detention facilities in Adelanto, Irvine, Santa Ana and Orange, California. According to the federal complaint, these facilities have the capacity to hold several thousand people at any given time.
Lead plaintiff Xochitl Hernandez came to the United States as an adolescent 25 years ago. In 2016, she was rounded up during an LAPD raid of a friend’s house and was transferred to ICE custody, where her bail was set at $60,000. Unable to come up with even $1,500, she remained in jail for months until a community organization called the National Day Labor Organizing Network raised $5,000 and a different immigration judge accepted that amount.
The other named plaintiff, Cesar Matias, is an asylum seeker who fled Honduras to escape persecution for being gay. He was arrested in 2012 and was held at an ICE detention center for nearly four years because he couldn’t afford his $3,000 bond. He was eventually released after his case garnered so much attention that the community organization Community Initiatives for Visiting Immigrants in Confinement raised enough money for him to bond out.
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