ACLU lawsuit against Leon County Clerk of Courts says Florida bail system is unconstitutional

The America Civil Liberties Union (ACLU) is suing Leon County Clerk of Courts Gwen Marshall on behalf of the Tallahassee Bail Fund for her enforcement of a Florida law that allows the withholding of bail money put up by any person or charitable organization.

The argument anchoring the complaint — filed Monday — says Florida Statute 903.286 violates the Eighth Amendment by requiring "clerks to use cash bail to impose criminal penalties on innocent parties, such as bail funds, which deprives them of the money that makes their operation possible."

The Eighth Amendment prohibits the federal government from imposing excessive bail, fines or "cruel and unusual punishments" on criminal defendants.

Back story: 'They saved my life': Tallahassee Bail Fund releases nearly 30 people in its first year

"While it is the Clerk’s policy not to comment on ongoing litigation, it is the Clerk’s responsibility to follow the law," wrote Kenneth Kent, the chief deputy clerk of the circuit court and comptroller.

Though the lawsuit — filed in U.S. District Court for the Northern District of Florida — has named Marshall, its targeting what an ACLU attorney described as a statute that "needed rethinking."

"It's hard to blame (Gwen Marshall) here; she's kind of stuck between a rock and a hard place," Jerry Edwards, an staff attorney for the ACLU attorney, told the Democrat.

"Because she's the person enforcing it, she's who has to get sued. There's no way to challenge a statute just by itself, you have to challenge the enforcement of a statute through a federal suit."

The ACLU has also sued Leon County previously for what it regards as an unconstitutional bail system.

In 2017, the ACLU filed a class-action lawsuit against Leon County Sheriff Walt McNeil challenging the constitutionality of imposing an unaffordable bail amount on defendants — effectively forcing them into pretrial detention.

The following year, a North Florida federal judge said the practice in Leon County of setting an unaffordable bail as a way to keep defendants in jail seems unconstitutional.

The case, however, was dismissed on procedural grounds.

Previous lawsuit: ACLU lawsuit claims Leon County bail system unconstitutional

More: Federal judge: Leon County setting unaffordable bail is unconstitutional

Florida's bail system

As per Florida statutes, an initial bail requirement is satisfied in one of two ways: the accused person either pays the full bail amount in cash, or a bond for the full amount is issued by a professional surety, like a bail bondsman.

Each bond serves the purpose of incentivizing the accused person to show up to court. If a person fails to appear as directed, the bond may be forfeited.

Once the case is resolved with a judgment, acquittal, dismissal, or otherwise, the bond is canceled or returned as long as the defendant appeared in court as required.

If a bail bondsman was involved, Florida clerks cancel and return the full amount to the agent.

If anyone else posted the bail amount — like a family member, a friend or a bail fund — clerks are required to withhold any unpaid fines, fees or restitution from any of the defendant's previous cases from the cash bond.

If there is any money left over, its returned to whoever paid the bail.

Nearly half of the Tallahassee Bail Fund's donations have been absorbed because of Florida law, complaint says

The Tallahassee Bail Fund, a nonprofit that began in May 2020, is a grassroots organization made up entirely of volunteers.

The money used by the bail fund is obtained through donations, which are then applied to cash appearance bonds. The bail fund, however, is not a surety insurer like a typical bail bondsman, exposing it to the Florida statute being challenged by the lawsuit.

Within the last two years, the Tallahassee Bail Fund deposited 17 cash appearance bonds in Leon County, totaling about $12,700, the complaint says.

And according to the complaint, $2,000 has been forfeited under other statutes; $2,750 has been returned to the fund after the charges against the accused were dismissed; and $2,750 in cash bonds remains undisposed.

In total, $5,200 has been held from the bail fund and been used to pay unpaid fines and fees.

Florida law causes bail fund to turn away more people than it serves

Since the bail fund runs on a model of money cycling, the fund has had to turn more people away than it has been able to bail out — a direct result of the statute, court records state.

The bail fund also generally does not post bonds of more than $2,500 because of the local enforcement of the Florida law, according to the complaint.

As of Aug. 3, the fund has less than $6,000 left in donations. Since the start of 2022, the mean cash bond posted by the fund is $660 and the median cash bond is $500.

"If not for Clerk Marshall’s enforcement of § 903.286, the Bail Fund could and would have posted cash bonds on behalf of between eight (mean bond) and ten (median bond) more accused persons," court records state.

Jennifer Copp, a Florida State University associate professor whose research focuses on the cash bail system's effectiveness, said the statute being challenged "disincentives" the creation and operation of bail funds by rendering their model unsustainable.

"This statute could be perceived as an abusive collection practice, because it targets individuals who posted bail through someone other than a bail bondsman, which is disproportionately going to impact poor people, Copp said.

The bail system's disproportionate effect on the poor

The main criticism against the cash bail system is that it creates a two-tier system of justice, where those who can afford bail get out, and those who can't remain detained.

The Tallahassee Bail Fund focuses its efforts to help the latter.

"So with few exceptions, people in jail are people that simply didn't have the resources for their release," Copp said, adding that pretrial detention can have cascading effects on the defendant's lives and leads to higher rates of conviction through guilty pleas.

Many incarcerated individuals "face mounting pressures as work and family responsibilities go untended, are unable to provide for their own medical needs or those of dependents, and are left in unsafe and unsanitary conditions," the complaint said and which Copp agreed.

"Most people that are incarcerated pretrial pose little risk to the community," she said. "What the research evidence supports is that we should be making every effort to get people out as quickly as possible."

Contact Christopher Cann at ccann@tallahassee.com and follow @ChrisCannFL on Twitter.

This article originally appeared on Tallahassee Democrat: ACLU sues Leon Co. Clerk of Courts on behalf of Tallahassee Bail Fund