ACLU of Florida sues Leon County Clerk for violating Eighth Amendment

Gwendolyn. Marshall ART
The Tallahassee Bail Fund uses public donations to post cash appearance bonds to pay for an arrested person's release from jail.

The American Civil Liberties Union of Florida is filing a lawsuit against Leon County Circuit Court Clerk Gwendolyn Marshall on behalf of the Tallahassee Bail Fund for excessive bail, excessive fines and due process.

The lawsuit challenges a statute that “improperly confiscates charitable organizations’ money to punish them for helping accused persons access their freedom.”

The 15-page complaint was filed in the U.S. District Court for the Northern District of Florida in Tallahassee.

The ACLU of Florida says Marshall’s enforcement of Florida Statute 903.286 wrongfully takes away charitable organizations’ money to “punish them for helping accused persons access their freedom.”

“Clerk Marshall’s policy particularly harms people charged with relatively minor charges who cannot afford to purchase a professional bond,” the complaint states.

According to the Monday complaint, Marshall’s enforcement of the statute violates the Eighth Amendment by allowing 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 enforcement of this statute is yet another unprecedented attack on bail funds,” said ACLU of Florida Staff Attorney Jerry Edwards.

“Wealth-based incarceration in the name of cash bail does not make communities safer, it lines the pockets of government and private interests. While we wait for the Leon County Clerk of the Circuit Court to enact key systemic change, it’s important to continue to support groups like the Tallahassee Bail Fund, not place undue burden on them.”

The Tallahassee Bail Fund posts cash appearance bonds to pay for an arrested person’s release from jail, using public donations.

“We are grateful for the ACLU of Florida’s legal support in helping interrupt a crippling practice of court fines and fees that, on top of cash bail, makes the price tag of freedom untenable for us and families across Leon County,” said Tallahassee Bail Fund co-founder Hannah Schwadron.

“For a group working every day to get people out of cages and home to their loved ones, this justice effort is a beacon of light and a lifeline.”

The Tallahassee Bail Fund is asking the court to declare the statute unconstitutional and bar Marshall from enforcing it.

Aimee Sachs

Aimee Sachs covers politics in her hometown of Tallahassee and the Panhandle. The University of Florida graduate began her career as a sportswriter for the Tallahassee Democrat, Lakeland Ledger and MLB.com. She has also worked for Courthouse News Service and was a senior reporter for The Florida Channel before joining Florida Politics. You can email Aimee at [email protected] Follow her on Twitter @AimSachs.


24 comments

  • SteveHC

    August 15, 2022 at 5:39 pm

    The statute is CLEARLY unconstitutional; its enactors knew this right from the very beginning but passed and enforce it anyway as a cheap and idiotic method of political grandstanding by public ignoramuses.

    • Paul Passarelli

      August 16, 2022 at 9:16 am

      Which statute are *you* referring to? Bail? Or that fools that post bail for people with an elevated chance of failing to appear, might not be playing with a full deck?

  • Paul Passarelli

    August 16, 2022 at 12:34 am

    Wait. If the accused appear for trial then he bail money is returned to the bail poster. The only reason the TBF would lose the money is if the accused fail to appear for trial. Which is either a clear indication of guilt, or an incredibly bad decision process regarding who they post bail for.

    If the court is confiscating the TBF’s funds, there is a reason. I don’t get how they would be entitled to file suit for an 8A violation for posting bail if the person fails to appear! Their beef is with the deadbeat they bailed out. The one who *DECIDED* not to appear in court. They could do what any bail bondsman does, they could put a bounty on the head of the bail jumper. Or they could stop bailing out people with a high change of skipping out.

    But their lawsuit seems like it lacks merit and they lack standing for a decision they made voluntarily.

    • Andres

      August 16, 2022 at 2:01 pm

      You clearly didn’t read the very short statute:
      (1) Notwithstanding s. 903.31(2), the clerk of the court shall withhold from the return of a cash bond posted on behalf of a criminal defendant by a person other than a bail bond agent licensed pursuant to chapter 648 sufficient funds to pay any unpaid costs of prosecution, costs of representation as provided by ss. 27.52 and 938.29, court fees, court costs, and criminal penalties.

      They’re not withholding funds from these organizations for the defendants failure to appear. They’re withholding funds for other reasons unrelated to bail, and only punishing non bail bond agents to discourage anyone from posting bail for a criminal defendant..

      • It's Complicated

        August 16, 2022 at 3:44 pm

        Andres – with the assumption that the defendant shows up for their day in court, does this statute require the Clerk to withhold part of the cash bond for persons who are adjudicated “not guilty,” or are they only withholding part of the cash bond for those who are adjudicated “guilty”? In any event, it seems like the defendant should be personally liable for all court imposed costs, and not the party that posts the bond. What if I post bond for my brother, and I go to the trouble to make sure he shows up for trial? Am I going to be saddled with paying for his court imposed costs, because I’m not a licensed bail bond company?

        • Paul Passarelli

          August 16, 2022 at 4:33 pm

          I really really doubt that the court is withholding the bail of defendants found not guilty. But I also kinda doubt that there are very many of them in that particular bucket.

        • Paula Burt

          August 16, 2022 at 8:17 pm

          No they taking the whole bail in some cases and in other case half either way the bail fund shouldn’t be the one pay for cost and fees charged by the courts and I’m surprised that it a issue with people that read something that’s so plainly written and view it totally different

          • Paul Passarelli

            August 16, 2022 at 9:39 pm

            you wrote: ” … either way the bail fund shouldn’t be the one pay for cost and fees …”

            Which is a matter of opinion. Look at it from the court’s perspective. A fine is levied. A sum of money that was set aside (forfeited) beneficially for a defendant in in the possession of the court. The court is supposed to return that money and hold it’s hand on its ass waiting for the convicted to remit a payment?

            Even a Democrat should realise that that doesn’t make sense!

            If Donald Trump were to do it, all y’all would be screaming the opposite. And Trump hasn’t even been convicted if a crime. Again, I’m almost certain that these defendants have been found guilty.

            I’m reading what is written like an engineer (I’m not a lawyer), you seem to be reading the words like a ‘community organizer’ of some other social do-gooder, that doesn’t abide the rule of law.

        • Andres

          August 17, 2022 at 8:22 am

          Criminal defendants are only charged these fees if they are convicted, and yes, the statute requires that the fees be taken from donated bail funds, and not returned to the organization or individual who made the donation. In your example. you would not the money back you posted for your brother because you are not a licensed bail bond company. It discourages anyone, including family members, from posting bail for criminal defendants.

          I think this lawsuit is a heavy lift though, because there have been several cases on this already and it’s been upheld by the courts every time.

      • Paul Passarelli

        August 16, 2022 at 4:30 pm

        I’m quite certain that the terms of the bail were disclosed in whatever set of forms were presented to the agent posting the bail. What they must be claiming cannot be asserted by the agreement they *voluntarily* agreed to by posting bail for defendants that they knew were going to be found guilty.

        Usually the person posting bail, when other than a bail bondsman, knows that their life has been turned to shit by the person they are bailing out.

        That’s why bail bondsman take the 10% posted as their fee. But recall bondsmen serve both the court’s and the accused interests, as a disinterested 3rd party.

        • Andres

          August 17, 2022 at 8:27 am

          You are quite correct. The terms of the bail, including that the donation will not be returned, are spelled out when posted; which is why it’s generally been upheld by the courts.
          I would still argue that the law favors an industry, bail bondsmen, and the wealthy over every other individual.

      • M Martin

        August 16, 2022 at 5:02 pm

        Exactly.

      • Paul Passarelli

        August 16, 2022 at 5:20 pm

        You need to reread the clause: “… sufficient funds to pay any unpaid costs of prosecution, costs of representation as provided by ss. 27.52 and 938.29, court fees, court costs, and criminal penalties.”

        The last three words of the sentence “… and criminal penalties.” which imply that the accused was adjudicated and found to be guilty. Therefore that portion of the bail is deemed forfeit to recover the monetary damages assigned to the convicted. Unfortunate for the bail poster, but they can always collect from the one they bailed out.

  • just sayin

    August 16, 2022 at 7:28 am

    The Left is angry again that a person whose job it is to enact the laws is expected to enact the laws. Government, how does it work?

    • Andres

      August 16, 2022 at 2:02 pm

      The only way to overturn unconstitutional laws is to sue those enforcing them. This is basic, basic stuff. The judiciary is there for a reason.

      • Paul Passarelli

        August 16, 2022 at 4:40 pm

        Agreed. But pissing & moaning that the law as written makes one sad has no bearing on the constitutionality of that law.

        • Andres

          August 17, 2022 at 8:28 am

          The constitutional argument is that it is the taking of property without due process of law. The criminal defendant is not the one being charged, it’s anyone posting bail on their behalf.

          • Paul Passarelli

            August 17, 2022 at 9:50 am

            You’re being deliberately dense. It’s not a “taking” the decision to post bail for someone else is 100% *voluntary*. The org that posts the bail has essentially made a *CASH* donation to the accused. , knowing full well that the accused would hand it over to the court to secure release. Also knowing that the accused would forfeit the cash to the court if (when) found guilty.

            The solution to that situation which would heavily discourage the posting of bailment, are the statutes that protect *LICENSED* bail bondsmen. These are *disinterested* 3rd parties who are only creating the bailment for the purpose of keeping the jails clear and guaranteeing appearance at trial. When a bonded defendant *appears* the bondsman is done. If that defendant is subsequently found to be guilty guilty, he will be remanded, unless he can post *ANOTHER* bond.

            The fact that fools believe that none of this rigmarole hasn’t been *thoroughly* thought out amuses me to no end.

  • M. Martin

    August 16, 2022 at 12:29 pm

    When people jump bail anyone who posted it loses it! They should too and shouldn’t be allowed to go unregulated and operate as surety on a defendant! Aren’t they the ones calling bail bond companies thieves! They are the thieves! At least bail bond companies have arrest rights and can bring the defendant back to custody these non-profits cant! Plus this lawsuit is about profit, that is their argument. So ridiculous that no one saw this coming!

  • Andres

    August 16, 2022 at 2:06 pm

    A basic reading of the statute at issue would show that this is not about defendants who “jump bail.” They’re charging people who donate bail with the cost of prosecution, attorneys fees, court fees, court costs, and criminal penalties. That’s not what the money was donated for and it shouldn’t be subject to seizure for that purpose without due process.

    It’s done entirely to discourage donations for bail, and exempts bail bondsman completely, thus propping up their industry.

    • M Martin

      August 17, 2022 at 12:53 pm

      I have never read a statement that is so untrue, mis-informed and a total lack of understanding of how the bail system works either through a private surety company or a personal posting of bail. If you want to discuss please let me know, I think educating each other is how we all best come to the best decision making.

  • Corcuit

    August 16, 2022 at 4:49 pm

    Typical government lackeys getting paid by business to help businesses make more money from the poor people. The never-ending story.

    At the same time… maybe people stop criminal activity and bail won’t be necessary in the first place…

  • Tim

    August 17, 2022 at 1:19 pm

    Does it surprise anyone? I mean really? Helping there own probably. letting criminals out etc.. there’s justice in our justice system anymore. Just look what’s going on up north and out west. There trying to bring it right here to our hometown. So does it surprise anyone?

  • Paul Passarelli

    August 17, 2022 at 1:41 pm

    Ah. Well, as long as we agree on the facts, then we can have a civil & intelligent discussion on whether the ‘bail bondsmen’ have an unfair advantage over ‘civilian do-gooders.’

    I dunno. maybe they do. but they pay for it. I’m sure that their licenses carry a hefty fee. I’m certaint hat they are required to maintain compliance with lots of rules & regulations. I’m certain that when a bailee skips out they are out the money that they posted with the court. Hence their use of bounty hunters to capture the fugitive, return him to custody and recover their bond payment.

    But the issue here is that in order for the bondsman not to be applying his/her biases on whether to bail an accused, his liability is capped at the appearance for trial, and the bondsman is not at all liable for the fees & penalties accrued by the convicted.

    That protection simply doesn’t apply to a private party. Is that ‘fair’? That’s a decision for a court. I think it is. But that’s my opinion. I could be convinced otherwise if the facts support the opposite conclusion.

Comments are closed.


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