Phil Telfeyan California Bar No. 258270 Attorney, Equal...

Motion for Temporary Restraining Order and Preliminary Injunction, 15-CV-4959 1

Phil Telfeyan California Bar No. 258270 Attorney, Equal Justice Under Law 601 Pennsylvania Avenue NW South Building — Suite 900 Washington, D.C. 20004 (202) 505-2058 [email protected] Attorney for Plaintiffs Riana Buffin and Crystal Patterson

THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

RIANA BUFFIN and CRYSTAL ) PATTERSON, et al., ) ) Plaintiffs, ) ) Case No. 15-CV-4959

v. ) ) Expedited Hearing Requested THE CITY AND COUNTY OF SAN ) (Class Action) FRANCISCO and THE STATE OF ) CALIFORNIA, ) ) Defendants. ) ____________________________________)

MOTION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION I. Introduction

This case is about San Francisco’s wealth-based pretrial detention scheme, which

operates to jail some of San Francisco’s poorest residents solely because they cannot pay an

arbitrary amount of money. The named Plaintiffs, Riana Buffin and Crystal Patterson, are

impoverished arrestees who are currently in jail because they cannot afford a generic bail

amount. If Ms. Buffin could afford to pay $30,000 — like many wealthier people arrested in San

Francisco and charged with the same offenses — then she could walk out of her jail cell

immediately.

Case 4:15-cv-04959-YGR Document 2 Filed 10/28/15 of 24


The Supreme Court has repeatedly articulated the fundamental principle that no person

can be kept in jail solely because of her poverty. Although that basic rule has been applied

directly to the issue presented in this case by federal and state courts, the principle is ignored in

San Francisco on a daily basis under Defendants’ wealth-based detention scheme.

Keeping people who are poor in jail because they cannot make a monetary payment

violates longstanding and fundamental principles of American law. As described in detail

below, the scheme enforced by Defendants has been rejected by the courts and by every major

panel of legal experts to study the issue over the past fifty years. Because the named Plaintiffs

are — and because many others in his situation will continue to be — held in jail solely by virtue

of the amount of money they have, Plaintiffs respectfully request that this Court hold a hearing

on this Motion in expedited fashion. Following that hearing, this Court should issue a temporary

restraining order preventing the violation of Plaintiffs’ fundamental rights as soon as possible.

II. Statement of Facts The facts of this case are similar to the facts discussed nearly four decades ago, when the

Fifth Circuit condemned the jailing of indigent arrestees solely because they could not make cash

payments. See Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc). Defendants’

wealth-based detention scheme is materially indistinguishable from the schemes declared

unconstitutional in Pierce v. City of Velda City, 15-cv-570-HEA (E.D. Mo. June 3, 2015)

(declaring the use of a secured bail schedule unconstitutional as applied to indigent arrestees and

enjoining its operation), Cooper v. City of Dothan, 1:15-cv-425-WKW (M.D. Ala. June 18,

2015) (issuing Temporary Restraining Order and holding that the City of Dothan’s fixed money

bail schedule violates the Fourteenth Amendment), and Jones v. City of Clanton, 2:15-cv-34-

MHT (M.D. Ala. 2015) (declaring unconstitutional the use of wealth-based detention procedures



as applied to indigent arrestees). See Exhibit 1, Recent Court Rulings. It is also

indistinguishable from the scheme recently condemned by the United States Department of

Justice in a federal court case raising the same issues against the City of Clanton, Alabama. See

Exhibit 2, United States Department of Justice, Statement of Interest, Varden et al. v. City of

Clanton, 15-cv-34 (M.D. Ala. 2015) (arguing on behalf of the United States government that the

use of secured monetary bail schedules to keep indigent arrestees in jail “not only violates the

Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.”).

A. Plaintiffs’ Wealth-Based Detention

Riana Buffin is a 19-year old resident of Oakland. See Exhibit 3, Declaration of Riana

Buffin. She was arrested on Monday, October 26, by San Francisco police offers and charged

with grand theft of personal property and conspiracy. Id. After her arrest, she was taken to the

San Francisco County Jail and informed by jail employees that she would not be released unless

she paid the standard $30,000 that San Francisco requires for charges such as hers. Id. No

individualized factors were considered in setting her bond amount, nor was her ability to pay

taken into account, nor was she brought before a judicial officer. Id.

Crystal Patterson is a 29-year old resident of San Francisco. See Exhibit 4, Declaration

of Crystal Patterson. She was arrested on Tuesday, October 27, by San Francisco police offers

and charged with assault with force causing great bodily injury. Id. After her arrest, she was

taken to the San Francisco County Jail and informed by jail employees that she would not be

released unless she paid the standard $150,000 that San Francisco requires for charges such as

hers. Id. No individualized factors were considered in setting her bond amount, nor was her

ability to pay taken into account, nor was she brought before a judicial officer. Id.

Ms. Buffin and Ms. Patterson are indigent. Id. They cannot afford to purchase their



freedom; none of their friends or relatives is able to buy their release for them. Id. Defendants’

wealth-based detention scheme operates as a penalty on poor arrestees, resulting in pretrial

detention based solely on someone’s inability to pay.

B. Defendants’ Wealth-Based Detention Scheme

Defendants’ wealth-based detention scheme penalizes all indigent arrestees. When San

Francisco police arrest a person, they take the person into custody, and the county jail performs

standard booking procedures. ECF Doc. 1, ¶¶ 21–29. The person is then told by jail employees

that the person can be released immediately with notice of a court date, but only if the person

pays a pre-determined sum of money. Id. The amount of money is determined by reference to a

“bail schedule,” which lists offenses and corresponding dollar amounts required to pay for the

person’s immediate release. See ECF Doc. 1-1. No inquiry is made into any of the person’s

circumstances, such as the person’s ability to pay.

San Francisco’s wealthier arrestees are freed almost immediately when they post the

amount of money required for their freedom. ECF Doc. 1, ¶¶ 21–29. Those too poor to pay the

arbitrary bail amount are left to languish in jail until the resolution of their case. Id. Each week,

there are more than 100 of San Francisco’s most destitute arrestees locked in jail solely because

they are unable to purchase their freedom. Id. Defendants’ wealth-based detention practices

have resulted in the ongoing confinement of the named Plaintiffs in this case. Id.

In contrast to San Francisco, many other cities and counties throughout the country do

not hold people in jail because of their poverty. Instead, many other places release arrestees with

appropriate conditions of release that can help increase court attendance and public safety

without requiring detention. These conditions can include a “signature” (also known as an

“unsecured”) bond, whereby a person promises to pay the scheduled amount of money if the



person fails to appear in court, but is not actually forced to come up with cash to be released

from jail. Other conditions — all of which have been used by and are readily available to San

Francisco — include electronic monitoring, SCRAM bracelets monitoring alcohol consumption,

pretrial release services such as daily check-ins, phone or text message reminders of court dates,

substance abuse programs and classes, batterer intervention programs, counseling, stay-away

orders, home detention, and other conditions or services. Id. In cities that rely on appropriate

conditions of release, arrestees are not kept in jail solely because they cannot afford an arbitrary

sum of money in advance. These reasonable alternatives are available to San Francisco.

III. Discussion

Plaintiffs meet all four requirements for a temporary restraining order and preliminary

injunction because (A) there is a high likelihood that Plaintiffs will succeed on the merits based

on long-standing Equal Protection and Due Process guarantees, (B) Plaintiffs and other class

members will be irreparably harmed without injunctive relief by arbitrary, wealth-based

imprisonment, (C) Defendant will not be harmed, as made evident by its own policy preferences,

by a grant of injunctive relief, and (D) an injunction will serve the public interest by ensuring

that the criminal justice system does not penalize poor arrestees solely due to their wealth-status.

See Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014) (listing factors for a preliminary

injunction); Stuhlbarg Int’l Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 n.7 (9th Cir.

2001) (stating standards for issuing a temporary restraining order and a preliminary injunction

are “substantially identical”). Further, given Plaintiffs’ indigence and the nature of their claims,

(E) this Court should not require the posting of monetary security.

A. Plaintiffs Are Highly Likely to Succeed on the Merits Because Defendants’ Conduct Violates the Equal Protection and Due Process Clauses

The constitutional principles at issue in this case are well-established. The Fifth Circuit



long ago identified the basic equal protection violation of wealth-based post-arrest detention

procedures: “At the outset we accept the principle that imprisonment solely because of indigent

status is invidious discrimination and not constitutionally permissible.” Pugh v. Rainwater, 572

F.2d 1053, 1056 (5th Cir. 1978) (en banc); see also Pierce et al. v. City of Velda City, 15-cv-570-

HEA (E.D. Mo. June 3, 2015 2015); Cooper v. City of Dothan, 1:15-cv-425-WKW (M.D. Ala.

June 18, 2015); United States Department of Justice, Statement of Interest, Varden et al. v. City

of Clanton, 15-cv-34-MHT (M.D. Ala. 2015). Defendants’ wealth-based detention scheme is

unconstitutional because (i) the Constitution prohibits penalizing poor arrestees solely due to

their wealth-status and (ii) San Francisco has simple, reasonable alternatives to its arbitrary

imprisonment of poor arrestees.

i. The Constitution Prohibits Keeping a Person in Jail Solely Because She Is Unable to Afford a Monetary Payment

The rule that wealth-status has no place in deciding whether a human being should be

jailed relies on some of the most fundamental principles of American law. See Griffin v. Illinois,

351 U.S. 12, 19 (1956) (“There can be no equal justice where the kind of trial a [person] gets

depends on the amount of money [s]he has.”); Douglas v. California, 372 U.S. 353, 355 (1963)

(condemning the “evil” of “discrimination against the indigent”); Williams v. Illinois, 399 U.S.

235, 241 (1970) (“[T]he Court has had frequent occasion to reaffirm allegiance to the basic

command that justice be applied equally to all persons.”). In our system of criminal justice, a

poor defendant cannot be penalized simply because she is poor.

The equal protection and due process guarantees have been applied in a variety of

contexts in which a government sought to keep a person in jail solely because of the person’s

inability to make a monetary payment. See, e.g., Tate v. Short, 401 U.S. 395, 398 (1971) (“[T]he

Constitution prohibits the State from imposing a fine as a sentence and then automatically



converting it into a jail term solely because the defendant is indigent and cannot forthwith pay

the fine in full.”). In Bearden v. Georgia, 461 U.S. 660, 672–73 (1983), the Supreme Court

explained that to “deprive [a] probationer of his conditional freedom simply because, through no

fault of his own he cannot pay [a] fine . . . would be contrary to the fundamental fairness required

by the Fourteenth Amendment.”

Relying on this Supreme Court precedent, courts have long held that any kind of pay-or-

jail scheme is unconstitutional when it operates to jail the poor. In Frazier v. Jordan, 457 F.2d

726, 728–29 (5th Cir. 1972), the court found that an alternative sentencing scheme of $17 or 13

days in jail was unconstitutional as applied to those who could not immediately afford the fine.

Because those people would be sent to jail if they could not pay the $17 fine, the local court’s

order of imprisonment was unconstitutional. Id. at 728. Put simply, Frazier condemned the

municipal court scheme because it created a system in which “[t]hose with means avoid

imprisonment [but] the indigent cannot escape imprisonment.” Id.; see also see also United

States v. Hines, 88 F.3d 661, 664 (8th Cir. 1996) (“A defendant may not constitutionally be

incarcerated solely because he cannot pay a fine through no fault of his own.”); Barnett v.

Hopper, 548 F.2d 550, 554 (5th Cir.1977) (“To imprison an indigent when in the same

circumstances an individual of financial means would remain free constitutes a denial of equal

protection of the laws.”), vacated as moot, 439 U.S. 1041 (1978); United States v. Estrada de

Castillo, 549 F.2d 583, 586 (9th Cir. 1976) (“[I]f a defendant, because of his financial inability to

pay a fine, will be imprisoned longer than someone who has the ability to pay the fine, then the

sentence is invalid.”).

District courts have recently reaffirmed these basic principles. For example, in United

States v. Flowers, 946 F. Supp. 2d 1295 (M.D. Ala. 2013), the Court was confronted with an



analogous situation: a criminal defendant faced imprisonment because he could not afford the

cost of release on home confinement monitoring. The court found — as the federal government

conceded, id. at 1301 — that keeping a person in jail solely because she could not afford to pay

for home confinement monitoring would be “wrong” and that “the Constitution’s guarantee of

equal protection is inhospitable to the Probation Department’s policy of making monitored home

confinement available to only those who can pay for it.” Id. at 1302.

In Flowers, the court acknowledged that “the principle that wealth and poverty have no

place in sentencing decisions is nothing new.” Id. Flowers held that a person could not be jailed

simply because the person could not afford the cost of electronic monitoring services. Id. at

1301. The court recounted fundamental Supreme Court precedent, explaining that, just as “it

violates the Constitution’s guarantee of equal protection under the laws to convert a fine-only

sentence into a prison term based on inability to pay,” it would also violate the constitution to

turn a sentence of electronic monitoring into a jail sentence simply because the defendant could

not afford to pay for the service. Id. at 1300. Other federal district courts have consistently

enforced the same fundamental principle condemning the jailing of individuals who are poor

simply due to their inability to pay a monetary sum. See, e.g., United States v. Waldron, 306 F.

Supp. 2d 623, 629 (M.D. La. 2004) (“It is well established that our law does not permit the

revocation of probation for a defendant’s failure to pay the amount of fines if that defendant is

indigent or otherwise unable to pay. In other words, the government may not imprison a person

solely because he lacked the resources to pay a fine.”).

If wealth-status has no place in determining sentencing outcomes, it has no place in

pretrial detention decisions. Just as it is unlawful to put a convicted person in jail because of her

inability to make a monetary payment, it is unlawful to put a presumptively innocent person in



jail for the same reason. Rainwater, 572 F.2d at 1057. Indeed, in the context of pretrial

arrestees, the rights at stake are even more significant because they are presumed innocent. As

Justice Douglas asked: “To continue to demand a substantial bond which the defendant is unable

to secure raises considerable problems for the equal administration of the law . . . . Can an

indigent be denied freedom, where a wealthy [person] would not, because [s]he does not happen

to have enough property to pledge for [her] freedom?” Bandy v. United States, 81 S. Ct. 197,

197–98 (1960). According to the Fifth Circuit (consistent with every other federal court to

closely examine the issue):

We have no doubt that in the case of an indigent, whose appearance at trial could reasonably be assured by one of the alternate forms of release, pretrial confinement for inability to post money bail would constitute imposition of an excessive restraint.

572 F.2d at 1058. Summing up its reasoning, the en banc Fifth Circuit held: “The incarceration

of those who cannot [afford a cash payment], without meaningful consideration of other possible

alternatives, infringes on both due process and equal protection requirements.” Id. at 1057; see

also, e.g., Williams v. Farrior, 626 F.Supp. 983, 985 (S.D. Miss. 1986) (“For the purposes of the

Fourteenth Amendment’s Equal Protection Clause, it is clear that a bail system which allows

only monetary bail and does not provide for any meaningful consideration of other possible

alternatives for indigent pretrial detainee infringes on both equal protection and due process

requirements.”).

Defendants’ scheme does exactly what Rainwater (and every other major precedent)

rejects: it assigns jail for those who cannot afford to pay bail and freedom for those who can. In

no case is an indigent arrestee offered an alternative to posting an immediate payment.

Defendants have determined that people committing non-capital offenses (like Plaintiffs and

other Class members) are eligible for immediate release after arrest. Defendants cannot make



exercising that right to freedom contingent solely on the ability to pay small amounts of cash.

Cf. Bearden, 461 U.S. at 667–68 (holding that “if [a] State determines a fine or restitution to be

the appropriate and adequate penalty for [a] crime, it may not thereafter imprison a person solely

because he lacked the resources to pay it”); see also Pierce et al. v. City of Velda City, 15-cv-

570-HEA (E.D. Mo. June 2, 2015) (“If the government generally offers prompt release from

custody after arrest upon posting a bond pursuant to a schedule, it cannot deny prompt release

from custody to a person because the person is financially incapable of posting such a bond.”).

Just like their federal counterparts, state courts have stricken down wealth-based

detention schemes similar to the one employed by Defendants. In State v. Blake, 642 So. 2d 959,

968 (Ala. 1994), the Alabama Supreme Court struck down a state statute that allowed for

indigent arrestees to be held for 72 hours solely because they could not afford monetary

payments to secure their release prior to their first appearance. The Court held:

[A]n indigent defendant charged with a relatively minor misdemeanor who cannot obtain release by cash bail, a bail bond, or property bail, must remain incarcerated for a minimum of three days, and perhaps longer, before being able to obtain judicial public bail. We conclude that, as written, article VII of the Act violates an indigent defendant’s equal protection rights guaranteed by the United States Constitution, because the classification system it imposes is not rationally related to a legitimate governmental objective.

Id (emphasis added) (internal quotations marks omitted). In Blake, the lower court had

expressed outrage at the system of detention based on poverty that prevailed in Alabama at the

time:

The pretrial detention of this defendant accused of a misdemeanor for possibly five or six days because of defendant’s lack of resources interferes with the right of liberty, the premise of innocent until proven guilty, and shocks the conscience of this court. . . . Absent property or money, the defendant must wait 72 hours for a hearing for judicial public bail. Putting liberty on a cash basis was never intended by the founding fathers as the basis for release pending trial.

Id. at 966 (emphases added).



Defendants’ wealth-based detention scheme has also been rejected by other state courts.

The Mississippi Supreme Court long ago condemned the jailing of the poor based on inability to

pay secured monetary bail. See, e.g., Lee v. Lawson, 375 So. 2d 1019, 1023 (Miss. 1979) (“A

consideration of the equal protection and due process rights of indigent pretrial detainees leads us

to the inescapable conclusion that a bail system based on monetary bail alone would be

unconstitutional.”). In Lawson, the court explained that Mississippi law provided for release

without payment of money and that, following the American Bar Association Standards,

Mississippi courts should adopt a presumption of release on recognizance (at least in cases not

involving “violent or heinous crimes”). Id. (“There is incorporated in these standards a

presumption that a defendant is entitled to be released on order to appear or on his own

recognizance.”). The court declared that this presumption of non-monetary release “will go far

toward the goal of equal justice under law.” Id. at 1024; see also, e.g., Robertson v. Goldman,

369 S.E.2d 888, 891 (W. Va. 1988) (“[W]e have previously observed in a case involving a

“peace bond,” which we said was analogous to a bail bond, that if the appellant was placed in jail

because he was an indigent and could not furnish [bond] while a person who is not an indigent

can avoid being placed in jail by merely furnishing the bond required, he has been denied equal

protection of the law.”) (internal quotation marks omitted).

This unbroken line of courts condemning wealth-based detention is being ignored by

Defendants. While some arrestees in San Francisco hand money to the county and are released

immediately, poor arrestees charged with the same offenses languish in jail. A system that jails

people who are poor and frees people who are rich for no reason other than their wealth is not

consistent with the “fundamental fairness” enshrined in the Fourteenth Amendment. Bearden,

461 U.S. at 673.



ii. Defendants Have Simple, Reasonable Alternatives to Jailing Poor Arrestees Solely Because of Wealth-Status

“In our society liberty is the norm, and detention prior to trial or without trial is the

carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). All over the

country, in the area of post-arrest procedure, jurisdictions have taken this constitutional

obligation seriously and instituted simple alternatives to Defendants’ practice of jailing the poor

and freeing the rich. For example, in Washington, D.C., arrestees are released on recognizance

with appropriate non-financial conditions. See D.C. Code § 23-1321. In Clanton, Alabama, after

being confronted with a similar federal suit in January 2015, the city adopted a new policy of

releasing all arrestees on a $500 unsecured recognizance bond, allowing every new arrestee to be

released on the promise to pay that amount should the person later fail to appear. See Jones et al.

v. City of Clanton, 2:15-cv-34-MHT (M.D. Ala. 2015). Similarly, in April 2015, Velda City,

Missouri, ended its use of secured bail and implemented a system of recognizance release for all

new arrestees. Pierce et al. v. City of Velda City, 4:15-cv-570-HEA (E.D. Mo. 2015). In so

doing, Clanton and Velda City joined many other cities and counties in following the advice of

the en banc court in Rainwater: “Systems which incorporate a presumption favoring personal

recognizance avoid much of the difficulty inherent in the entire subject area.” Rainwater, 572

F.2d at 1057. Defendants could cure the illegality at the core of this case simply by allowing

release with appropriate conditions that would further court attendance and public safety.

Indeed, the entire federal judiciary eschews wealth-based pre-trial detention; federal law

explicitly forbids obtaining post-arrest detention through the use of money bail that a person

cannot meet. See 18 U.S.C. § 3142(c)(2) (“The judicial officer may not impose a financial

condition that results in the pretrial detention of the person.”). The Department of Justice

recommends that state courts also honor the Constitution’s guarantee of equal treatment. See



Exhibit 2, United States Department of Justice, Statement of Interest. San Francisco is free to

choose reasonable measures among these options without offending the Fourteenth Amendment,

but it may not adopt a blanket monetary chart as its only criterion for determining custody or

freedom, because such a scheme results in detention solely based on wealth-status.

Along with numerous federal and state courts and the Department of Justice, the

American Bar Association’s seminal Standards for Criminal Justice condemn Defendants’

wealth-based detention policies as having no place in American law. American Bar Association

Standards for Criminal Justice – Pretrial Release (3d ed. 2007) (“ABA Standards”), available at

http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/pretrial_re

lease.authcheckdam.pdf. The ABA Standards (a source that has been relied on in more than 100

Supreme Court decisions) first began addressing post-arrest release procedures in 1968. The

latest revision of the ABA Standards now constitute one of the most comprehensive and

definitive statements available on the issue of post-arrest release, and they set forth clear,

reasonable, and simple alternatives to the unconstitutional scheme used by Defendants.

For example, the ABA Standards call for the presumption of release on recognizance,

followed by release pursuant to the least restrictive non-financial conditions; most importantly,

they condemn the use of generic money schedules like the one used by Defendants:

Consistent with these Standards, each jurisdiction should adopt procedures designed to promote the release of defendants on their own recognizance or, when necessary, unsecured bond. Additional conditions should be imposed on release only when the need is demonstrated by the facts of the individual case . . . .

ABA Standards § 10-1.4(a). The judicial officer should not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant’s inability to pay.

ABA Standards at § 10-1.4(e).



Financial conditions other than unsecured bond should be imposed only when no other less restrictive condition of release will reasonably ensure the defendant’s appearance in court. The judicial officer should not impose a financial condition that results in the pretrial detention of the defendant solely due to an inability to pay.

ABA Standards at § 10-5.3(a). According to the ABA Standards, financial conditions are only to

be used as a last resort and should never be used in a generic fashion as they are in San

Francisco:

Financial conditions should be the result of an individualized decision taking into account the special circumstances of each defendant, the defendant’s ability to meet the financial conditions and the defendant’s flight risk, and should never be set by reference to a predetermined schedule of amounts fixed according to the nature of the charge.

ABA Standards at § 10-5.3(e) (emphasis added). The National Association of Pretrial Services

Agencies (“NAPSA”) has also issued definitive Standards that condemn the use of generic

monetary schedules. See NAPSA, Standards on Pretrial Release (3d ed. 2004) at § 2.5(f),

available at http://www.napsa.org/publications/2004napsastandards.pdf (“Financial conditions

should . . . never be set by reference to a predetermined schedule of amounts based solely on the

nature of the charge. . . . The practice of using a bail schedule easily leads to detention for those

too poor to post the bail amount and to the release of others for whom the amount is relatively

nominal and thus creates no incentive to return to court.”).

The ABA Standards are widely viewed as authoritative and are seen as the seminal text

reflecting best practices by the leading commentators on post-arrest procedures. See Department

of Justice, National Institute of Corrections, Fundamentals of Bail (2014) at 75 (discussing the

importance of the ABA Standards and its rejection of standardized financial conditions of release

after arrest). These Standards, which include detailed treatment of all relevant policies and

procedures necessary for creating a lawful and effective post-arrest release system, have been a



model for numerous jurisdictions around the country to eliminate the antiquated and unlawful

practice of detention based on small amounts of money.

The Constitution guarantees that people who are poor will not face a different criminal

justice system than the system faced by wealthier people. Because Plaintiffs and similarly

situated impoverished arrestees are being held based solely on their inability to pay the generic

amount of money set by San Francisco’s bail schedule, they are highly likely to prevail on the

merits of their constitutional claim.

B. Plaintiffs and Class Members Will Suffer Irreparable Constitutional Harm of Unconstitutional Confinement if this Court Does not Issue an Injunction

Without intervention from this Court, Plaintiffs and the class of similarly situated people

will continue to suffer the serious and irreparable harm of unconstitutional jailing. Imprisoning a

human being in a jail cell in violation of her constitutional rights is undoubtedly an irreparable

harm to her body and mind. “Freedom from imprisonment — from government custody,

detention, or other forms of physical restraint — lies at the heart of the liberty that [the Due

Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Foucha v. Louisiana,

504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty

protected by the Due Process Clause from arbitrary governmental action.”).

Even one additional night in jail is a harm to a person that cannot be later undone. See,

e.g., United States v. Bogle, 855 F.2d 707, 710–11 (11th Cir. 1988) (holding that the

“unnecessary deprivation of liberty clearly constitutes irreparable harm”); Gilman v. Brown, No.

CIV S-05-830, 2011 WL 3163260 at *6 (E.D. Cal. July 25, 2011) (“[P]rolonged incarceration is

an irreparable harm.”); Wanatee v. Ault, 120 F.Supp.2d 784, 789 (N.D. Iowa 2000)

(“[U]nconstitutional incarceration generally constitutes irreparable harm to the person in such

custody.”); SEC v. Bankers Alliance Corp., 1995 WL 317586, *3 (D.D.C.1995) (“As for the



question of irreparable harm in the absence of a stay, clearly Mr. Lee will be harmed by being

incarcerated.”); Lake v. Speziale, 580 F. Supp. 1318, 1335 (D. Conn. 1984) (granting preliminary

injunction requiring court to inform child support debtors of their right to counsel because

unlawful incarceration would be irreparable harm); Cobb v. Green, 574 F.Supp. 256, 262 (W.D.

Mich. 1983) (“There is no adequate remedy at law for a deprivation of one’s physical liberty.

Thus the Court finds the harm asserted by plaintiff is substantial and irreparable.”). Each jailing

also carries with it numerous other indignities for each Class member, including intrusive body

searches and cramped, crowded, and unsanitary living conditions.

Moreover, even a few days in jail can have devastating consequences in a person’s life,

such as the loss of a job or the inability to arrange safe alternate care for minor children. Class

members will likely face dire consequences to being unconstitutionally jailed due to their wealth

status. Confinement also exposes arrestees to the risk of unsanitary conditions, infection, and

other medical and safety emergencies prevalent in local jails. See, e.g., Bureau of Justice

Statistics, Sexual Victimization In Prisons And Jails Reported By Inmates, 2011-12-Update,

available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4654 (finding that 3.2% of jail

inmates reported being sexually abused during their current stay in jail). Forcing people to risk

all of these additional harms because they cannot afford an arbitrary payment would only further

contribute to the unnecessary and irreparable harm visited on Plaintiffs and other Class members

in this case.

The result of Defendants’ current policies is that the pretrial detainees are those who are

so poor and destitute that they do not even know anyone who can come up with the money to

free them. Plaintiffs and other Class members are therefore languishing in jail solely because

they and their families do not have enough money to buy their release. Plaintiffs ask this Court



to enjoin Defendants, pending a final resolution of this case on the merits, from keeping them in

jail because they cannot afford to pay cash up front to secure their release.

C. As Made Evident by Defendants’ Own Policy Choices, An Injunction Will Not Harm Defendant

An injunction will not harm Defendant. By its own policy choice, Defendants already

offer immediate release to every non-capital arrestee — but only if they can pay for it. Cal.

Const., Art. I §§ 12(a)–(c), 28(f)(3). Every arrestee who can afford the arbitrary bond amount is

free to walk out of the jail anytime. An injunction would simply require San Francisco to do

what other cities and counties throughout the country do every day: release both rich and poor

arrestees without penalizing poor arrestees with jail solely because they cannot afford to

purchase their release. By conceding that release is acceptable (though conditioning freedom on

wealth-status), Defendants’ own policies highlight the lack of harm to Defendants if both rich

and poor arrestees enjoy the pretrial liberty currently only afforded to rich arrestees.

Lest Defendants argue that serial offenders and mass murderers be released to great

mayhem, several features of Defendants’ policy choices must be highlighted. First, under

California state law, arrestees charged with capital offenses can be detained without bail. Id. Art.

I, § 12. Because such detention is premised on public safety and not wealth-status, it does not

violate equal protection and due process protections discussed above. Second, approximately

90% of arrestees are ineligible for release due to probation revocation or violations of conditions

of release in other matters. ECF Doc. 1, ¶ 25. Thus, for frequent and repeat offenders — as well

as for the most serious offenders — release is denied altogether. It is only for those offenders

who do not have recent probation or conditions of release where Defendants have made the

policy decision to allow release. Compared to the total jail population, this group represents less

than 10% of arrestees. Notably, because this group lacks ongoing probationary sentences or



terms of release in other matters, it lacks frequent, serial offenders and is therefore a group that is

even less likely to be a danger to others or a flight risk.

Furthermore, in select cases, Defendants can employ numerous appropriate conditions of

release that increase court appearance and public safety. Defendants have used and currently

have access to a plethora of reasonable conditions at their disposal, including electronic

monitoring, SCRAM bracelets for alcohol detection, stay-away orders, mandatory daily

reporting with pretrial services, phone call and text message reminders of court dates, homeless

services, rides to court, substance abuse programs and classes, counseling, unsecured/signature

bonds, and other services. Id. ¶ 27. Such conditions, where necessary to address a particular

risk, can enhance Defendants’ concerns for court appearance and public safety.

By explicitly allowing release for non-capital offenders and those who are not held for

violation of probation or other conditions, Defendants have made plain their policy preference

for freedom pending trial. What Defendants cannot do is condition that freedom on wealth-

status, nor can Defendants reasonably claim harm if both rich and poor arrestees enjoy the

freedom that is currently given only to rich arrestees.

D. An Injunction Serves the Public Interest by Promoting Equal Justice Under Law

As numerous courts have emphasized, “it is always in the public interest to prevent the

violation of a party’s constitutional rights.” Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir.

2012) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th

Cir. 1994). Overwhelming federal precedent treats the amelioration of constitutional violations

to be in the public interest. See Giovani Carandola v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)

(“The final prerequisite to the grant of a preliminary injunction is that it serve the public interest.

Again, we agree with the district court that upholding constitutional rights surely serves the



public interest.”); Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012). It is

hard to imagine anything more in the public interest than remedying clear constitutional

violations. Freedberg v. United States Dept. of Justice, 703 F. Supp. 107, 111 (D.D.C. 1988)

(“And insofar as the public interest is concerned, it was perhaps put best by another judge of this

district court, in another case . . . who said, simply, it is in the public interest to uphold a

constitutionally guaranteed right.”) (quotations and citation omitted); see also, e.g., Wiley

Mission v. New Jersey, Dep’t of Cmty. Affairs, 2011 U.S. Dist. LEXIS 96473, at * 59 (D.N.J.

Aug. 25, 2011) (granting permanent injunction against state agency in part because “requiring

the Department to abide by the Constitution serves the public interest”). As the Court explained

in Glatts v. Superintendent Lockett, “one must consider the other side of the scale of public

interest, which is, having a State’s employees follow the Federal Constitution is also in the

public interest.” 2011 U.S. Dist. LEXIS 1910, at *18–19 (W.D. Pa. 2011).

Indeed, continuing to keep impoverished arrestees in jail cells because of their poverty

has significant negative consequences for the public interest. The overwhelming consensus of

experts is that San Francisco will be safer by ceasing needless detention of poor arrestees. The

National Institute of Corrections at the Department of Justice has led the way in highlighting

both the unequal nature of generic bail schedules and their negative impacts on community

safety. See United States Department of Justice, National Institute of Corrections, Fundamentals

of Bail, at 28–29 (2014), available at http://static.nicic.gov/UserShared/2014-11-

05_final_bail_fundamentals_september_8,_2014.pdf. See also, e.g., Arnold Foundation, The

Hidden Costs of Pretrial Detention (2013) at 3, available at:

http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF_Report_hidden-costs_FNL.pdf

(studying 153,407 defendants and finding that “when held 2–3 days, low risk defendants are



almost 40 percent more likely to commit new crimes before trial than equivalent defendants held

no more than 24 hours”); Arnold Foundation, Pretrial Criminal Justice Research Summary

(2013) at 5, available at: http:// www.arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-

CJ-Research-brief_FNL.pdf (finding that “low-risk defendants held 2–3 days were 17 percent

more likely to commit another crime within two years” and that those detained “4–7 days yielded

a 35 percent increase in re-offense rates.”). There is overwhelming evidence that keeping

indigent people in jail — even for a few days after an arrest — has terrible consequences. First,

it is enormously expensive to house people in jail. See The Price of Jails: Measuring the

Taxpayer Cost of Local Incarceration, Vera Institute of Justice (May 2015), available at

http://www.safetyandjusticechallenge.org/wp-content/uploads/2015/05/The-Price-of-Jails-

report.pdf (explaining that even the reported costs of approximately $50 to $570 per inmate per

day in custody at local jails around the country was a significant underestimate of the cost to

local jurisdictions of incarceration in local jails). Second, jailing the poor can devastate lives by

disrupting stable employment and child custody arrangements. Third, even just 48 hours in jail

after an arrest leads to worse outcomes for all involved by increasing poverty, hurting an

arrestee’s family, and making it more likely that an arrestee will recidivate. See DOJ, National

Institute of Corrections, at 24–29; see also, e.g., International Association of Chiefs of Police,

Resolution (October 2014), 121st Annual Congress at 15–16, available at

http://www.theiacp.org/Portals/0/documents/pdfs/2014Resolutions.pdf (“[D]efendants rated low

risk and detained pretrial for longer than one day before their pretrial release are more likely to

commit a new crime once they are released, demonstrating that length of time until pretrial

release has a direct impact on public safety.”). All of these factors highlight that the public

interest is furthered by pretrial release and by a system that grants all arrestees the freedom



currently given only to those wealthy enough to purchase their freedom.

The public interest of Plaintiffs’ request is underscored by the fact that the Sheriff of San

Francisco — the county’s chief law enforcement officer — supports the end of Defendants’

wealth-based detention system. Exhibit 5, Declaration of County Sheriff; see also Exhibit 6,

Declaration of Public Defender.

E. The Court Should Use Its Discretion Not to Require the Posting of Security Federal Rule of Civil Procedure 65(c) provides that the Court require the moving party to

post security to protect the other party from any financial harm likely to be caused by a

temporary injunction if that party is later found to have been wrongfully enjoined. Rule 65(c),

however, “vest[s] broad discretion in the district court to determine the appropriate amount of an

injunction bond,” DSE v. United States, 169 F.3d 21, 33 (D.C. Cir. 1999), including the

discretion to require no bond at all. Steward v. West, 449 F.2d 324, 325 (5th Cir. 1971) (finding

that no injunction bond need be posted when “it is very unlikely that the defendant will suffer

any harm”); RoDa Drilling v. Siegal, 552 F.3d 1203, 1215 (10th Cir. 2009) (“[T]rial courts have

wide discretion under Rule 65(c) in determining whether to require security . . . .”); Donohue v.

Mangano, 886 F. Supp. 2d 126, 163 (E.D.N.Y. 2012) (“[A] district court has wide discretion to

dispense with the bond requirement of Fed.R.Civ.P. 65(c) where there has been no proof of

likelihood of harm . . . .”); Council on American-Islamic Rels. v. Gaubatz, 667 F. Supp. 2d 67, 81

(D.D.C. 2009) (same). The Court should use its considerable discretion to find that no security

(or a nominal security of $1) is required in this case for several important reasons.

First, the likelihood of Defendants suffering any harm from an improperly issued

injunction requiring Defendants to comply with federal law is almost non-existent. See, e.g.,

Gaubatz, 667 F. Supp. 2d at 81 (requiring no bond where the defendant would not be



substantially injured by the issuance of an injunction); 11A Charles A. Wright, Arthur R. Miller,

et al., Federal Practice and Procedure § 2954 (2d ed.) (“[T]he court may dispense with security

altogether if the grant of an injunction carries no risk of monetary loss to the defendant.”).

Indeed, the limited injunction sought in this Motion would not even eliminate San Francisco’s

ability to release the named Plaintiffs or other future arrestees on a signature bond with

appropriate conditions of release. Thus, no financial harm would result from this preliminary

injunction.

Second, the named Plaintiffs and other Class members are all living in poverty, and the

very reason for bringing this case is their lack of financial resources. See, e.g., Wayne Chem. v.

Columbus Agency Serv. Corp., 567 F.2d 692, 701 (7th Cir. 1977) (requiring no bond for indigent

person); Mitchell et al. v. City of Montgomery, 14-cv-186-MEF, Doc. 18 at 3, (May 1, 2014)

(issuing preliminary injunction without requiring a bond for indigent plaintiffs because they were

likely to succeed on the merits and because the defendant was unlikely to suffer significant

financial harm); Johnson v. Bd. of Police Comm’rs, 351 F. Supp. 2d 929, 952 (E.D. Mo. 2004)

(requiring no bond for homeless plaintiffs); Swanson v. Univ. of Hawaii Prof. Assembly, 269 F.

Supp. 2d 1252, 1261 (D. Haw. 2003) (waiving the security requirement for public employees

based on ability to pay and also because the injunction sought enforcement of constitutional

rights); Bass v. Richardson, 338 F. Supp. 478, 490 (S.D.N.Y.1971) (“It is clear to us that

indigents, suing individually or as class plaintiffs, ordinarily should not be required to post a

bond under Rule 65(c).”); see also 11A Wright & Miller § 2954 (courts can waive the bond

requirement in cases involving poor plaintiffs).

Finally, Plaintiffs are overwhelmingly likely to succeed on the merits. The outcome of

any future trial, if necessary, is likely to reaffirm the basic principles that have been repeatedly



reaffirmed by the Supreme Court, numerous state and federal courts, the Department of Justice,

the American Bar Association, and countless others. It is also worth noting that, although this

case is a prototypical situation for which the class action vehicle was created, and the class action

certification motion was contemporaneously filed with this preliminary injunction motion, this

Court need not rule on the Plaintiffs’ class certification motion or formally certify a class in order

to issue preliminary injunctive relief. See, e.g., Newberg on Class Actions § 24:83 (4th ed. 2002)

(“The absence of formal certification is no barrier to classwide preliminary injunctive relief.”);

Moore’s Federal Practice § 23.50, at 23-396, 23-397 (2d ed.1990) (“Prior to the Court’s

determination whether plaintiffs can maintain a class action, the Court should treat the action as a

class suit.”); see also, e.g., Lee v. Orr, 2013 WL 6490577 at *2 (N.D. Ill. 2013) (“The court may

conditionally certify the class or otherwise order a broad preliminary injunction, without a formal

class ruling, under its general equity powers. The lack of formal class certification does not

create an obstacle to class-wide preliminary injunctive relief when activities of the defendant are

directed generally against a class of persons.”); N.Y. State Nat. Org. For Women v. Terry, 697 F.

Supp. 1324, 1336 (S.D.N.Y.1988) (holding that “the Court acted in the only reasonable manner it

could under the circumstances, ruling on the continuation of [the] temporary restraining order

and leaving the question of class certification for another day.”); Leisner v. New York Tel. Co.,

358 F. Supp. 359, 371 (S.D.N.Y.1973) (“[R]elief as to the class is appropriate at this time even

though when the preliminary injunction motion was heard, the class action had not yet been

certified.”); Illinois League of Advocates for the Developmentally, Disabled v. Illinois Dep’t of

Human Servs., 2013 WL 3287145 at *4 (N.D. Ill. 2013) (“At this early stage in the proceedings,

the class allegations in the Second Amended Complaint are sufficient to establish Plaintiffs’

standing to seek immediate injunctive relief on behalf of the proposed class. At a later stage, we



may revisit whether that classwide representation is inappropriate, but until that time, we will

preserve the status quo (within the limits set forth in the TRO) with respect to all potential class

members.”).

IV. Conclusion

This case is about San Francisco’s wealth-based pretrial detention scheme, which

operates to jail some of San Francisco’s poorest residents solely because they cannot pay an

arbitrary amount of money. For the reasons stated above, the Court should grant Plaintiffs’

motion for emergency injunctive relief and enjoin Defendants from keeping Plaintiffs and those

similarly situated in jail without offering release on unsecured bond or recognizance.

Respectfully submitted, /s/ Phil Telfeyan

Phil Telfeyan (California Bar No. 258270) Attorney, Equal Justice Under Law 601 Pennsylvania Avenue NW

South Building — Suite 900 Washington, D.C. 20004 (202) 505-2058 [email protected]

/s/ Katherine Hubbard Katherine Hubbard (California Bar No. 302729) Attorney, Equal Justice Under Law 601 Pennsylvania Avenue NW

South Building — Suite 900 Washington, D.C. 20004 (319) 325-2788 [email protected]

Attorneys for Plaintiffs


IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

PEGGY JONES, as

Administrator of the

Estate and Personal

Representative of Christy

Dawn Varden,

)

)

)

)

)

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:15cv34-MHT

) (WO)

THE CITY OF CLANTON, )

)

Defendant. )

JUDGMENT

In accordance with the opinion entered this date, it

is the ORDER, JUDGMENT, and DECREE of the court as

follow:

(1) The parties’ joint motion for entry of final

judgment (doc. no. 72) is granted.

(2) The parties’ settlement agreement (doc. no. 72)

is adopted as the order of the court.

(3) As expressly requested by the parties in their

joint motion for entry of final judgment (doc. no. 72) at

Case 2:15-cv-00034-MHT-WC Document 77 Filed 09/14/15 Page 1 of 3Case 4:15-cv-04959-YGR Document 2-1 Filed 10/28/15 Page 1 of 28

2

2, the following facial declaration is adopted and

entered by the court:

“The use of a secured bail schedule to

detain a person after arrest, without a

hearing on the merits that meets the

requirements of the Fourteenth Amendment

regarding the person’s indigence and the

sufficiency of the bail setting, is

unconstitutional as applied to the

indigent. Without such a hearing, no

person may, consistent with the

Fourteenth Amendment, continue to be

held in custody after an arrest because

the person is too poor to deposit a

monetary sum set by a bail schedule. If

the government offers release from

custody after an arrest upon the deposit

of money pursuant to a bail schedule, it

cannot deny release from custody to a

person, without a hearing regarding the

person’s indigence and the sufficiency

of the bail setting, because the person

is unable to deposit the amount

specified by the schedule. See Pugh v.

Rainwater, 572 F.2d 1053 (5th Cir.

1978); Bearden v. Georgia, 461 U.S. 660

(1983); and State v. Blake, 642 So. 2d

959 (Ala. 1994).”

(4) The parties are to comply with all terms of the

settlement agreement (doc. no. 72) for the period set out

in the agreement.

(5) Plaintiff’s claims are dismissed with prejudice

but with two exceptions: the court retains jurisdiction


(a) to enforce the settlement agreement (doc. no. 72) for

the period set out in the agreement and (b) to resolve

the matter of attorney’s fees.

(6) Plaintiff Peggy Jones is allowed 42 days from

today’s date to file a motion for attorney’s fees, costs,

and expenses. The court will enter a briefing schedule

after the motion is filed.

The clerk of the court is DIRECTED to enter this

document on the civil docket as a final judgment pursuant

to Rule 58 of the Federal Rules of Civil Procedure.

This case is closed.

DONE, this the 14th day of September, 2015.

/s/ Myron H. Thompson___

UNITED STATES DISTRICT JUDGE


Case: 4:15-cv-00570-HEA Doc.#: 15-2 Filed: 06/02/15 Page: 1 of 3 PagelD #: 116

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DONYA PIERCE et al., ) ) ) ) ) ) ) ) ) )

Plaintiffs,

v. Case No. 4:15-cv-570-HEA

THE CITY OF VELDA CITY,

Defendant. (Class Action) ~~~~~~~~~~~~~~~ )

ORDER

Based on the representations of the Parties, the Court orders the following:

1. The Parties to the Settlement Agreement, which is Exhibit 1 to this Order, are

ordered to comply with its terms.

2. The parties' motion for the entry of final declaratory relief is granted. The Court

hereby issues the following declaratory judgment:

The use of a secured bail schedule to set the conditions for release of a person in custody after arrest for an offense that may be prosecuted by Velda City implicates the protections of the Equal Protection Clause when such a schedule is applied to the indigent. No person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond. If the government generally offers prompt release from custody after arrest upon posting a bond pursuant to a schedule, it cannot deny prompt release from custody to a person because the person is financially incapable of posting such a bond.

3. The Plaintiffs' claims are hereby dismissed with prejudice subject only to the

further jurisdiction of this Court to enforce its injunction as set forth below.

4. The Court further orders as follows:

a. The named Plaintiff and her undersigned counsel notify counsel for the City of Velda City upon the discovery of any perceived breach of their settlement

Case: 4:15-cv-00570-HEA Doc. #: 16 Filed: 06/03/15 Page: 1 of 3 PageID #: 119Case 4:15-cv-04959-YGR Document 2-1 Filed 10/28/15 Page 4 of 28


agreement or the Court's order as set forth herein and give the City of Velda City a reasonable amount of time to cure such alleged breach. The named Plaintiff shall seek relief from the Court for such alleged breach only after such notice and a failure to cure within a reasonable time.

b. The City of Velda City shall, unless and until otherwise ordered by the Court, comply with the following:

i. The City of Velda City and all of its officers, employees, and agents will not utilize secured money bail for persons in the custody of the City on arrest, either without a warrant or on the initial warrant issued, for any violation that may be prosecuted by the City.

11. The City of Velda City and all of its officers, employees, and agents will offer every person in the custody of the City on arrest, either without a warrant or on the initial warrant issued, for any violation that may be prosecuted by the City, release from the custody of the City on recognizance or on an unsecured bond as soon as practicable after booking. The only exception to this provision is such persons as are brought before the court within 24 hours of arrest for potential imposition of conditions for release other than the posting of money bond in cases involving intentionally assaultive or threatening conduct or for a determination that release must be denied to prevent danger to a victim, the community or any other person under applicable constitutional standards. 1 Persons who violate conditions of release shall be subject to such actions as determined by the court pursuant to applicable law without regard to any additional procedures set forth herein.

iii. The City of Velda City will notify all arrestees in writing upon release of the time, date, and place at which they are required to appear in court, if any.

iv. The City of Velda City will request the most recent address and contact information for any arrestees, and will update that information in any court file or record.

v. The City will comply with the following principles for subsequent proceedings after the release of a person arrested without a warrant or on an initial warrant or after the issuance of a summons or citation for an offense that does not involve a custodial arrest:

1. If the person does not appear for a court hearing as required, the City will send a letter by first class mail notifying the person that they missed their court date and providing a new court date. The City may also attempt to contact the person by telephone or text message to inform or remind the person about their court date.

1 For the purposes of this agreement, the term "secured" bond means a monetary sum that must be paid or posted as a precondition of release from custody. The term "recognizance" means a person's release upon their promise to appear in court at a later date. The term "unsecured" bond does not require any up-front payment and is defined as a monetary sum that a person agrees to pay later if the person fails to appear as required without good cause.

2



2. If the person does not appear at the subsequent court date discussed in (i), the City's municipal court may, in its discretion, issue a warning that a warrant may be issued for the person's arrest. The City will notify the person of the potential issuance of a warrant by first class mail and, in its discretion, by phone or text message. With such notification, the City will inform the person that they can avoid issuance of the warrant and receive a new court date by appearing in person at the office of the municipal court clerk during normal business hours, and executing a recognizance or unsecured bond.

a. If the person does not request a new court date within 30 days, the City may issue and execute the arrest warrant. If the warrant is executed and the person is taken into custody, the City will release the person on unsecured bond with notice of a court date.

3. If after actions described in (ii) the person fails to appear at a subsequent proceeding, the City's municipal court may, in its discretion, issue a warrant and the City may arrest the person. Upon arrest, the City may detain the person in custody without bond for up to 48 hours so that the person may be brought before a judge for the consideration of their underlying case and, if further proceedings are necessary, for individualized consideration of detention or conditions of release provided that no person will be denied pretrial release because of their individual inability to make a monetary payment.

4. At any time after any non-appearance, the City may take appropriate and lawful steps under state law to convert any unsecured bond into a money judgment.

vi. The City of Velda City will not hold an arrestee in its custody for another municipality on charges relating to ordinance violations for more than 4 hours.

vii. Velda City police will not impound a car owned by a person arrested on charges of violations of an ordinance so long as the arrestee designates a licensed driver who will immediately take possession of the car and remove it from the scene of arrest, unless such car is to be held for investigation or evidence.

3




PEGGY JONES, as


Estate and Personal


Dawn Varden,

)

)

)

)

)

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:15cv34-MHT

) (WO)


)

Defendant. )

JUDGMENT

In accordance with the opinion entered this date, it

is the ORDER, JUDGMENT, and DECREE of the court as

follow:

(1) The parties’ joint motion for entry of final

judgment (doc. no. 72) is granted.

(2) The parties’ settlement agreement (doc. no. 72)

is adopted as the order of the court.

(3) As expressly requested by the parties in their

joint motion for entry of final judgment (doc. no. 72) at


2

2, the following facial declaration is adopted and

entered by the court:

“The use of a secured bail schedule to

detain a person after arrest, without a

hearing on the merits that meets the

requirements of the Fourteenth Amendment

regarding the person’s indigence and the

sufficiency of the bail setting, is

unconstitutional as applied to the

indigent. Without such a hearing, no

person may, consistent with the

Fourteenth Amendment, continue to be

held in custody after an arrest because

the person is too poor to deposit a

monetary sum set by a bail schedule. If

the government offers release from

custody after an arrest upon the deposit

of money pursuant to a bail schedule, it

cannot deny release from custody to a

person, without a hearing regarding the

person’s indigence and the sufficiency

of the bail setting, because the person

is unable to deposit the amount

specified by the schedule. See Pugh v.

Rainwater, 572 F.2d 1053 (5th Cir.

1978); Bearden v. Georgia, 461 U.S. 660

(1983); and State v. Blake, 642 So. 2d

959 (Ala. 1994).”

(4) The parties are to comply with all terms of the

settlement agreement (doc. no. 72) for the period set out

in the agreement.

(5) Plaintiff’s claims are dismissed with prejudice

but with two exceptions: the court retains jurisdiction


(a) to enforce the settlement agreement (doc. no. 72) for

the period set out in the agreement and (b) to resolve

the matter of attorney’s fees.

(6) Plaintiff Peggy Jones is allowed 42 days from

today’s date to file a motion for attorney’s fees, costs,

and expenses. The court will enter a briefing schedule

after the motion is filed.

The clerk of the court is DIRECTED to enter this

document on the civil docket as a final judgment pursuant

to Rule 58 of the Federal Rules of Civil Procedure.

This case is closed.







PEGGY JONES, as


Estate and Personal


Dawn Varden,

)

)

)

)

)

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:15cv34-MHT

) (WO)


)

Defendant. )

OPINION

Plaintiff Peggy Jones brings this 42 U.S.C. § 1983

case as administrator of the estate of Christy Dawn

Varden, the original plaintiff in this case, who is now

deceased. Administrator Jones claims that, in violation

of the First, Eighth and Fourteenth Amendments, Varden

was jailed because she was too poor to pay a small amount

of bail money, which she was required to pay under the

terms of defendant City of Clanton’s bail schedule.

Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal

question) and 1343 (civil rights).


2

The litigation is now before the court on the

parties’ joint motion for entry of final judgment as to

all matters excluding attorney’s fees. Based on the

representations made on the record on July 1, 2015, and

after a review of the entire record, the motion will be

granted.

I. BACKGROUND

Administrator Jones claims that Varden was

unconstitutionally jailed because she could not afford to

pay the amount of money set by the Clanton Municipal

Court’s generic bail schedule. Although the facts remain

disputed, the court will briefly review them--as alleged

by Jones--to give background for the court’s decision to

approve the settlement.

Administrator Jones alleges that Varden was arrested

and jailed for four misdemeanor offenses: shoplifting,

resisting arrest, failure to obey a police officer, and

possession of drug paraphernalia. At the time of

Varden’s arrest, the Clanton Municipal Court utilized a


3

generic bail schedule for new misdemeanor arrests, a

schedule from which it did not deviate: $ 500 per charge

(and $ 1,000 per DUI charge). Those able to pay the

amount of the bond always obtained immediate release.

Those unable to pay were required to wait in jail until

the next court date, typically held on Tuesday

afternoons. The bail schedule required payment upfront

and provided no option to secure release on recognizance

or by an unsecured bond (that is, a promise to pay the

amount only if one did not appear for the scheduled court

date).1

Administrator Jones alleges that under the terms of

the bail schedule, Varden could have been released

immediately had she paid a bond of $ 500 per charge, or

$ 2,000 in total. Varden was indigent, however, and too

1. Some people who cannot make this payment seek the

assistance of third-party commercial bail agents, who

typically charge an upfront fee of 10 %. Thus, a bonding

agent would charge $ 50 for each $ 500 cash bond.

However, the availability of third-party agents is not

guaranteed, and agents are free to refuse to pay for the

release of any arrestee. Further, some arrestees cannot

afford even the 10 % fee.


4

poor to pay this amount. Because she was arrested on a

Tuesday, after the weekly court hearings had already

occurred, she would have been forced to remain in jail

for seven days, until the next week’s hearings, before

any judge reviewed her imprisonment or determined that

the required bail was appropriate and reasonable in the

context of her individualized circumstances. However,

upon learning of the lawsuit, the city released her from

jail a day after her arrest.

Jones also alleges that at the time Varden was

arrested, the municipal court enforced a policy of

barring the public from its courtroom.

The parties agree that, in the time since this

lawsuit was filed, the city’s municipal-court policies as

to both bail and public access have changed.

Specifically, while the standard bail schedule for

secured bonds remains the same, any person arrested on a

misdemeanor violation is now released on an unsecured

appearance bond as long as she has no outstanding warrant

for failure to appear. Thus, the arrestee can be


5

released without any upfront payment, but will be

required to pay the bond if she does not appear for her

scheduled court date. An arrestee who has an outstanding

failure-to-appear warrant is required to post a cash

bond, commercial surety bond, or signatory bond (backed

by real property) in the amount established by the bail

schedule. The current policy also allows city officials

to deny the release of anyone who poses a danger to

herself or others or whose release is precluded by

statute.

For a person who does not obtain immediate release

under this policy, the municipal court will now hold a

hearing within 48 hours of arrest to make an

individualized determination as to whether the person may

be released, and if so, under what conditions. The court

understands the requirement in the city’s current policy

guaranteeing “the arrestee ... the opportunity to object

to the bail amount set for him or her” to mean that the

municipal court will consider objections regarding

ability to pay in determining the necessity and


6

appropriate amount of bail and whether to use an

alternative to bail. A new policy also allows the public

access to the courtroom during court sessions.

II. DISCUSSION

With the now pending joint motion for entry of final

judgment and the settlement agreement in support of it,

the parties seek a judgment that, among other things, (1)

resolves all disputes in this matter with the exception

of attorney’s fees; (2) declares that the Clanton

Municipal Court’s current bail practices, as they are

reflected in the settlement agreement, are facially

constitutional; (3) requires that the parties comply with

the settlement agreement; and (4) dismisses this

litigation with the exception that the court retains

jurisdiction to enforce the settlement agreement and to

resolve the matter of attorney’s fees.

Because a court’s declaration reflects its own views,

this court has an independent obligation to make sure

that the declaration is accurate and appropriate. Having


7

reviewed the Clanton Municipal Court’s current bail

practices, the court, as explained below, agrees with the

parties that, facially, they are consistent with

applicable law and, as result, the court will enter the

requested declaration.

The Fourteenth Amendment prohibits “punishing a

person for his poverty,” Bearden v. Georgia, 461 U.S.

660, 671 (1983), and this includes deprivations of

liberty based on the inability to pay fixed-sum bail

amounts. Indeed, this principle applies with special

force to criminal defendants awaiting trial, who have not

been found guilty of any crime. See United States v.

Salerno, 481 U.S. 739, 750 (1987) (recognizing the

fundamental nature of the right to pretrial liberty).

While the “[u]tilization of a master bond schedule

provides speedy and convenient release for those who have

no difficulty in meeting its requirements,” “[t]he

incarceration of those who cannot [meet them], without

meaningful consideration of other possible alternatives,

infringes on both due process and equal protection


8

requirements.” Pugh v. Rainwater, 572 F.2d 1053, 1057

(5th Cir. 1978)2.

Thus, the use of a secured bail schedule to detain a

person after arrest, without an individualized hearing

regarding the person’s indigence and the need for bail or

alternatives to bail, violates the Due Process Clause of

the Fourteenth Amendment. See Pugh, 572 F.2d at 1056-57

(“[I]imprisonment solely because of indigent status is

invidious discrimination and not constitutionally

permissible. ... Such requirement as is necessary to

provide reasonable assurance of the accused’s presence at

trial is constitutionally permissible. Any requirement

in excess of that amount would be inherently punitive and

run afoul of due process requirements.”); Bearden, 461

U.S. at 673-74 (explaining, in the context of probation,

that to deprive a person “of his conditional freedom

simply because, through no fault of his own, he cannot

2. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th

Cir. 1981) (en banc), the Eleventh Circuit Court of

Appeals adopted as binding precedent all of the decisions

of the former Fifth Circuit handed down prior to the

close of business on September 30, 1981.


9

pay the fine ... would be contrary to the fundamental

fairness required by the Fourteenth Amendment.”); State

v. Blake, 642 So. 2d 959, 968 (Ala. 1994) (“Under Alabama

law a defendant has an absolute right to bail in all

noncapital cases. A system of bail based totally on some

form of monetary bail, and not providing for release on a

defendant’s own recognizance in appropriate

circumstances, would be unconstitutional.”) (internal

citations omitted).

Under this precedent, the court finds that, facially,

the Clanton Municipal Court’s new bail policy, as

reflected in the municipal court’s new standing order,

see joint motion for entry of final judgment (doc. no.

72-2) at 8-9, and the court’s above explanation of its

understanding of that policy, see supra at 5-6, meets

constitutional due-process standards. This court need

not--and will not--determine whether the new policy

merely constitutes the constitutional minimum or goes

beyond what is required. But it does commend the city

and the municipal court for taking swift action to


10

rectify the former policies. Bail schemes such as the

one formerly enforced in the municipal court result in

the unnecessary pretrial detention of people whom our

system of justice presumes to be innocent. This period

of detention “has a detrimental impact on the individual.

It often means loss of a job; it disrupts family life;

and it enforces idleness.” Barker v. Wingo, 407 U.S.

514, 532 (1972). It can also impede the preparation of

one’s defense, see id. at 533 (noting that pretrial

detention hinders a defendant’s “ability to gather

evidence, contact witnesses, or otherwise prepare his

defense”); it can induce even the innocent to plead

guilty so that they may secure a quicker release, see

Andrew D. Leipold, “How the Pretrial Process Contributes

to Wrongful Convictions,” 42 Am. Crim. L. Rev. 1123, 1154

(2005); and it may result in a period of detention that

exceeds the expected sentence, see Stephanos Bibas, “Plea

Bargaining Outside the Shadow of Trial,” 117 Harv. L.

Rev. 2463, 2492 (2004). Moreover, unnecessary pretrial

detention burdens States, localities, and taxpayers, and


11

its use appears widespread: nationwide, about 60 % of

jail inmates are pretrial detainees, and the majority of

those people are charged with nonviolent offenses. See

Todd D. Minton and Zhen Zeng, U.S. Dep’t of Justice,

Bureau of Justice Statistics, Jail Inmates at Midyear

2014, at 4, http://www.bjs.gov/content/pub/pdf/jim14.pdf

(PDF replication in this litigation (doc. no. 75));

Richard Williams, Bail or Jail, State Legislatures, May

2012, http://www.ncsl.org/research/civil-and-criminal-

justice/ bail-or-jail.aspx (PDF replication in this

litigation (doc. no. 75)).

Criminal defendants, presumed innocent, must not be

confined in jail merely because they are poor. Justice

that is blind to poverty and indiscriminately forces

defendants to pay for their physical liberty is no

justice at all. By enacting a new policy that takes

account of the circumstances of those who come before its

courts, the Clanton Municipal Court has made marked

strides in improving the quality of the justice it

delivers. Cf. Griffin v. Illinois, 351 U.S. 12, 16


12

(1956) (“Providing equal justice for poor and rich, weak

and powerful alike is an age-old problem. People have

never ceased to hope and strive to move closer to that

goal.”).

***

The court will, therefore, enter an appropriate

judgment granting the parties’ joint motion for entry of

final judgment and, in accordance with that motion, (1)

declaring that the Clanton Municipal Court’s current bail

policies are facially constitutional, (2) requiring that

the parties comply with their settlement agreement, and

(3) dismissing administrator Jones’s claims with

prejudice albeit with the exception that the court will


retain jurisdiction over the case to enforce the

settlement agreement and adjudicate the matter of

attorney’s fees.





IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANTHONY COOPER,individually and on behalf of aclass of similarly situated people,

Plaintiffs,

V. CASE NO, 1:1 5-CV-425-WKW

THE CITY OF DOTHAN,

Defendant,

Plaintiff Anthony Cooper has filed suit against the City of Dothan, Alabama

("the City"), on behalf of himself and similarly situated individuals, alleging that the

City's arrest and detention policies and practices routinely result in the confinement

of Individuals solely due to their poverty in violation of the Fourteenth Amendment's

Due Process and Equal Protection clauses. Specifically, he argues that the City's

post-arrest detention scheme featuring preset and undifferentiated bond amounts

forces indigent individuals arrested on misdemeanor offenses to remain behind bars

for as long as a week, while allowing those who can afford the scheduled bond to

walk free. Before the court are the named Plaintiff's motion for temporary

restraining order or, in the alternative, motion for preliminary injunction (Doe. # 2)

and supplemental motion for temporary restraining order (Dock # 6).

Case 1:15-cv-00425-WKW-TFM Document 7 Filed 06/18/15 Page 1 of 6Case 4:15-cv-04959-YGR Document 2-1 Filed 10/28/15 Page 23 of 28

"A temporary restraining order protects against irreparable harm and

preserves the status quo until a meaningful decision on the merits can be made,"

Schiavo ex rd. Schindler v. Schiavo, 403 F.3d 1289, 1297 (11th Cir, 2005). A

temporary restraining order may be issued without notice only if

(A) specific facts in an affidavit or a verified complaint clearly showthat immediate and irreparable injury, loss, or damage will result tothe movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to givenotice and the reasons why it should not be required.

Fed. R. Civ. P. 65(b)(1)(A)—(B). Additionally, the elements that apply to a motion

for preliminary injunction also govern the issuance of a temporary restraining order.

See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir.

2001). These four elements are "(1) a substantial likelihood of success on the merits,

(2) a threat of irreparable injury, (3) that (the movant'sl own injury would outweigh

the injury to the nonmovant, and (4) that the injunction would not disserve the public

interest." Tefel v, Rena, 180 F.3d 1286, 1295 (11th Cir, 1999). The movant bears

the burden of establishing entitlement to a temporary restraining order. See Parker,

275 F.3d at 1034.

After careful consideration of the record, the court finds that the motion for a

temporary restraining order is due to be granted in part and denied in part. The

procedural requirements of Rule 65(b) for issuing a temporary restraining order

without notice to Defendant are satisfied. An affidavit from Mr. Cooper has been

2


filed evidencing immediate and irreparable injury, as discussed below. Moreover,

counsel for Mr. Cooper has certified his efforts to notify the City and has provided

sufficient reasons why notice should not be required.

Mr. Cooper also has demonstrated the four elements required for temporary

injunctive relief. First, he has highlighted long standing case law from the Fifth

Circuit Court of Appeals, as well as from the Supreme Court of Alabama, that

establishes the unconstitutionality of a pretrial detention scheme whereby indigent

detainees are confined for periods of time solely due to their inability to tender

monetary amounts in accordance with a master bond schedule, while those able to

afford the preset bond may quickly purchase their release. See Pugh v. Rainwater,

572 P.2d 1053, 1057 (5th Cir, 1978) ("Utilization of a master bond schedule provides

speedy and convenient release for those who have no difficulty meeting its

requirements. The incarceration of those who cannot, without meaningful

consideration of other possible alternatives, infringes on both due process and equal

protection requirements.")'; State v. Blake, 642 So, 2d 959, 968 (Ala. 1994)

(recognizing the unconstitutionality and irrationality of a bail scheme that allows "a

defendant with financial means who is charged with a noncapital violent felony, and

In Bonner v, City of .Prichard, the Eleventh Circuit adopted as binding precedent alldecisions of the former Fifth Circuit issued prior to October 1, 1981. See 661 F.2d 1206, 1209(11th Cir. 1981) (en bane).

3


who may potentially pose a great threat to community safety," to "obtain immediate

release simply by posting bail," while forcing an "indigent defendant charged with

a relatively minor misdemeanor" to "remain incarcerated for a minimum of three

days, and perhaps longer, before being able to obtain judicial public bail").

Furthermore, Mr. Cooper has brought to the court's attention a recent consent

judgment from the Eastern District of Missouri in which a post-arrest detention

scheme centered upon a secured bail system that failed to account for indigency was

declared unconstitutional. Pierce v. City of Velda City, No. 4:15-cv-570HEA (RD.

Mo. June 3, 201 5). The similarity between the post-arrest practices of the City of

Velda City, Missouri, and the City of Dothan, coupled with the constitutional

principles espoused in Pugh and Blake, provide sufficient grounds to find that Mr.

Cooper has a substantial likelihood of success on the merits of his challenge.'

Second, if a temporary restraining order is not entered, Mr. Cooper will

remain confined at the City jail pending his initial appearance as a result of his

inability to pay the schedule bond amount. Mr. Cooper has sufficiently

demonstrated that this threat of injury is immediate and irreparable. Third, the

alleged injury to Mr. Cooper would outweigh any injury to the City, and, as

As the Fifth Circuit explained in Pugh, "We have no doubt that in the case of an indigentwhose appearance at trial could reasonably be assured by one of the alternate forms of release,pretrial confinement for inability to post money bail would constitute imposition of an excessiver$trairjt," 572 F. 2d at 1058.

4


demonstrated by Mr. Cooper, the City has constitutional alternatives to confining

Mr. Cooper in response to his inability to pay the preset bond, while accounting for

his future court appearance. Fourth, the public interest will not be disserved by Mr.

Cooper's release from confinement.

Generally, security is required when a temporary restraining order issues. See

Fed. R. Civ. P. 65(e). This is not the typical case, however, in that the present action

is grounded upon Mr. Cooper's lack of financial resources. In light of Mr. Cooper's

indigency, the ability of the City to secure Mr. Cooper's future appearance through

alternative measures, and the court's determination that no costs or damages will be

incurred by the City during the pendency of the temporary restraining order, no

security bond will be required.

Accordingly, it is ORDERED that:

1. The motion for temporary restraining order (Doe. # 2)is GRANTED

insofar as the City is ORDERED to release Plaintiff Anthony Cooper immediately

either on his own recognizance or subject to an unsecured bond or other reasonable

and lawful non-financial conditions.

2. Plaintiff's motion for temporary restraining order (Doe. # 2) is

DENTED in all other respects.

3. A hearing to determine whether to convert this temporary restraining

order into a preliminary injunction is set for an evidentiary hearing on June 26, 2015

5


at 10:00 a.m., at the Federal Building & U.S. Courthouse, 100 West Troy Street,

Dothan, Alabama,

4, By 12:00 p.m., Monday, June 22, 2015, Defendant is DIRECTED to

respond to the motion for a preliminary injunction (Doc, # 2).

5. By 12:00 p.m., Thursday, June 257 2015, Plaintiff may file a reply to

Defendant's response.

6. Plaintiff is DIRECTED to serve Defendant with a copy of this Order,

and the Clerk of the Court is DIRECTED to fax to Defendant a copy of this Order.

DONE this 18th day of June, 2015, atØt.m.

4., & L- 4, r^^fCHIEF UNITED STATES DISTRICT JUDGE


IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

CHRISTY DAWN VARDEN, et al.

Plaintiffs,

v. Case No. 2:15-cv-34-MHT-WC

THE CITY OF CLANTON, (Class Action)

Defendant.

STATEMENT OF INTEREST OF THE UNITED STATES

Incarcerating individuals solely because of their inability to pay for their release, whether

through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the

Fourteenth Amendment. See Tate v. Short, 401 U.S. 395, 398 (1971); Williams v. Illinois, 399

U.S. 235, 240-41 (1970); Smith v. Bennett, 365 U.S. 708, 709 (1961). In this case, Plaintiffs

allege that they are subjected to an unlawful bail scheme in Clanton, Alabama. Under this

scheme, Plaintiffs are allegedly required to pay a cash “bond” in a fixed dollar amount for each

misdemeanor charge faced or else remain incarcerated. Without taking a position on the factual

accuracy of Plaintiff’s claims, the United States files this Statement of Interest to assist the Court

in evaluating the constitutionality of Clanton’s bail practices. It is the position of the United

States 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 bad public policy.


2

INTEREST OF THE UNITED STATES

The United States has authority to file this Statement of Interest pursuant to 28 U.S.C §

517, which permits the Attorney General to attend to the interests of the United States in any

case pending in a federal court. The United States can enforce the rights of the incarcerated

pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997. The United

States uses that statute to address unconstitutional conditions of confinement, many of which are

caused by the overcrowding of prisons and jails.

The United States has a clear interest in ensuring that state and local criminal justice

systems are fair, nondiscriminatory, and rest on a strong constitutional foundation.1

Unfortunately, that is not always the case. As noted by Attorney General Eric Holder at the

National Symposium on Pretrial Justice in 2011:

As we speak, close to three quarters of a million people reside in America’s jail system. . . . Across the country, nearly two thirds of all inmates who crowd our county jails—at an annual cost of roughly nine billion taxpayer dollars—are defendants awaiting trial. . . . Many of these individuals are nonviolent, non-felony offenders, charged with crimes ranging from petty theft to public drug use. And a disproportionate number of them are poor. They are forced to remain in custody—for an average of two weeks, and at a considerable expense to taxpayers —because they simply cannot afford to post the bail required . . . .2

For these reasons, the United States is taking an active role to provide guidance on the due

process and equal protection issues facing indigent individuals charged with state and local

crimes. For example, the United States filed Statements of Interest in Wilbur v. City of Mount

1 ABA Standards for Criminal Justice, Prosecution and Defense Function, Standard 3-1.2(d) (1993) (“It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, he or she should stimulate efforts for remedial action.” ).

2 Eric Holder, Att’y Gen. of the United States, U.S. Dep’t of Justice, Speech at the National Symposium on Pretrial Justice (June 1, 2011), available at http://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-national-symposium-pretrial-justice.


http://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-national-symposium-pretrial-justice

http://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-national-symposium-pretrial-justice

3

Vernon in 20133 and Hurrell-Harring v. State of New York in 2014.4 Both cases involved the

fundamental right to counsel for indigent criminal defendants and the role counsel plays in

ensuring the fairness of our justice system.5

Accordingly, the United States files this Statement of Interest, reaffirming this country’s

commitment to the principles of fundamental fairness and to ensuring that “the scales of our

legal system measure justice, not wealth.”6

BACKGROUND

It is long established that the American criminal justice system should not work

differently for the indigent and the wealthy. Indeed, as early as 1956, the Supreme Court

declared that “there can be no equal justice where the kind of trial a man gets depends on the

amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19 (1956). Twenty years later, the

Fifth Circuit extended that precept to incarceration: “[t]o imprison an indigent when in the same

circumstances an individual of financial means would remain free constitutes a denial of equal

3 Statement of Interest of the United States, Wilbur v. City of Mount Vernon, Civ. Action No. 11-1100 (W.D. Wash., Aug. 8, 2013), available at http://www.justice.gov/crt/about/spl/documents/wilbursoi8-14-13.pdf.

4 Statement of Interest of the United States, Hurrell-Harring v. State of New York, Case No. 8866-07 (N.Y. Sup. Ct., Sept. 25, 2014), available at http://www.justice.gov/crt/about/spl/documents/hurrell_soi_9-25-14.pdf.

5 In both Statements of Interest, the United States did not take a position on the merits of the plaintiffs’ claims. In Wilbur, the United States provided its expertise by recommending that if the court found for the plaintiffs, it should ensure that public defender counsel have realistic workloads, sufficient resources, and are carrying out the hallmarks of minimally effective representation. In Hurrell-Harring, the United States provided an informed analysis of existing case law to synthesize the legal standard for constructive denial of counsel.

6 Robert F. Kennedy, Att’y Gen. of the United States, U.S. Dep’t of Justice, Address to the Criminal Law Section of the American Bar Association (Aug. 10, 1964), available at http://www.justice.gov/ag/rfkspeeches/1964/08-10-1964.pdf; see also Eric Holder, Att’y Gen. of the United States, U.S. Dep’t of Justice, Speech at the National Association of Criminal Defense Lawyers 57th Annual Meeting (Aug. 1, 2014), available at http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-140801.html (quoting Attorney General Robert F. Kennedy).


http://www.justice.gov/crt/about/spl/documents/wilbursoi8-14-13.pdf

http://www.justice.gov/crt/about/spl/documents/wilbursoi8-14-13.pdf

http://www.justice.gov/crt/about/spl/documents/hurrell_soi_9-25-14.pdf

http://www.justice.gov/ag/rfkspeeches/1964/08-10-1964.pdf

http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-140801.html

http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-140801.html

4

protection of the laws.” Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir. 1977)7, vacated as moot,

439 U.S. 1041 (1978). Under the clear precedent of this Circuit, “imprisonment solely because of

indigent status is invidious discrimination and not constitutionally permissible.” Pugh v.

Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc).

The sweeping reforms to the federal bail system during the 1960s were based on these

same constitutional principles—that access to justice should not be predicated on financial

means. In 1962, Attorney General Robert F. Kennedy called for wide-scale bail reform, noting

that “[i]f justice is priced in the market place, individual liberty will be curtailed and respect for

law diminished.”8 In 1964, Attorney General Kennedy convened a National Conference on Bail

and Criminal Justice with the express purpose of understanding and improving both the federal

and state bail systems.9 During his closing remarks at the conference, Attorney General Kennedy

declared:

[U]sually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money. How much money does the defendant have?10

At the time, federal courts routinely employed cash bail schemes similar to the one alleged in

this case: bail amounts were based on the charges for which defendants were arrested, and

7 The Eleventh Circuit has adopted as precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

8 Robert F. Kennedy, Att’y Gen. of the United States, U.S. Dep’t of Justice, Address to the American Bar Association (Aug. 6, 1962), available at http://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/08-06-1962%20Pro.pdf.

9 Robert F. Kennedy, Att’y Gen. of the United States, U.S. Dep’t of Justice, Welcome Address to the National Conference on Bail and Criminal Justice (May 27, 1964), available at http://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/05-27-1964.pdf.

10 National Criminal Justice Reference Service, Proceedings and Interim Report from the National Conference on Bail and Criminal Justice 297 (1965), available at https://www.ncjrs.gov/pdffiles1/Photocopy/355NCJRS.pdf.


https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981145934&pubNum=350&fi=co_pp_sp_350_1207&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)#co_pp_sp_350_1207

http://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/08-06-1962%20Pro.pdf

http://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/05-27-1964.pdf

https://www.ncjrs.gov/pdffiles1/Photocopy/355NCJRS.pdf

5

judicial officers routinely set cash bail amounts that some defendants simply could not afford to

pay.

Attorney General Kennedy’s conference on bail reform sparked wide-scale changes to

the federal pre-trial detention and bail system. Testifying before the Senate Judiciary Committee

while bail reform legislation was under consideration, Attorney General Kennedy articulated the

Department’s growing concern that “the rich man and the poor man do not receive equal justice

in our courts. And in no area is this more evident than in the matter of bail.”11 The main reason

for this disparity, according to Attorney General Kennedy, was that the federal bail-setting

process was “unrealistic and often arbitrary.” Bail was set “without regard to a defendant’s

character, family ties, community roots or financial status.” Instead, bail was frequently set based

on the nature of the crime alone.12

Today, federal law expressly forbids that practice with a single sentence: “The judicial

officer may not impose a financial condition that results in the pretrial detention of the person.”13

This concise but profound change was initiated as part of the Bail Reform Act of 1966, which

marked a significant departure from past practices. The stated purpose of the Act was “to revise

the practices relating to bail to assure that all persons, regardless of their financial status, shall

not needlessly be detained pending their appearance to answer charges, to testify, or pending

appeal, when detention serves neither the ends of justice nor the public interest.”14

11 See Hearings on S. 2838, S. 2839, & S. 2840 Before the Subcomm. on Constitutional Rights and Subcomm. on Improvements in Judicial Machinery of the S. Comm. on the Judiciary, 88th Cong. (1964) (Testimony by Robert F. Kennedy, Att’y Gen. of the United States, U.S. Dep’t of Justice), available at http://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/08-04-1964.pdf.

12 Id.

13 18 U.S.C. § 3142(c)(2).

14 Bail Reform Act of 1966, Pub. L. No. 89-465, § 2, 80 Stat. 214 (1966). See also Allen v. United States, 386 F.2d 634, 637 (D.C. Cir. 1967) (Bazelon, J., dissenting) (“It plainly appears from the language and


http://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/08-04-1964.pdf

6

The Bail Reform Act requires federal judges and magistrates to conduct an individualized

analysis of each defendant prior to ordering pretrial detention.15 The individualized analysis

requires consideration of factors such as ties to the community, employment, and prior record

and precludes fixing bail based solely on the charge.16 In weighing these factors, judges are to

consider 1) the extent to which pre-trial release will endanger the safety of those in the

community, and 2) what is necessary to reasonably assure that the defendant will return to court

when necessary—i.e., that the defendant will not flee or otherwise attempt to avoid justice.17

Federal judges must also consider a wide range of “conditions” to be placed upon a

defendant’s pre-trial release that could alleviate these concerns. These conditions include regular

community reporting, establishing curfews, abstaining from drug or alcohol use, and various

types of community supervision.18 Financial conditions, including money bonds, can be among

these measures and, in appropriate cases where an accused might be a flight risk, financial

conditions can provide strong incentives to return to court. But the imposition of financial

conditions can only be made after an individualized assessment of the particular defendant. And,

importantly, the Bail Reform Act expressly precludes any federal judge or magistrate from

history of the Bail Reform Act that its central purpose was to prevent pretrial detention because of indigency.”) (citations omitted).

15 Federal judges must make these determinations during or following detention hearings in open court, in which defendants facing pre-trial detention are represented by counsel, either appointed or retained. 18 U.S.C. § 3142(f).

16 The Comprehensive Crime Control Act of 1984, signed into law by President Ronald Reagan, modified several sections of the 1966 Act, but made even more explicit the requirement of an individualized determination and the prohibition against cash bail for those who could not pay.

17 See generally, 18 U.S.C. § 3142(b)-(d) (outlining factors the courts must consider in determining whether or not to hold a defendant over until trial, or release him or her on his or her own recognizance or pursuant to conditions).

18 18 U.S.C. § 3142(c)(1)(B).


7

imposing money bail that an accused person cannot afford to pay and would therefore result in

that person’s pretrial detention.19

If the judge determines that no amount of conditions can reasonably secure the safety of

the community and the return of the defendant, the judge may order pretrial detention. In doing

so, the judge must provide a written statement of facts and the reasons for detention via a

“detention order.”20 Reasons for or against pretrial detention include the nature and

circumstances of the defendant’s charges, the weight of the evidence against the defendant, the

defendant’s history and character (including family and community ties and employment), and

the dangerousness or risk of flight that the defendant may pose if released.21

Essentially, the Bail Reform Act’s provisions ensure that pretrial detention is based on an

objective evaluation of dangerousness and risk of flight, rather than ability to pay. Previous

critics of bail reform suggested that the Act would “create a nation of fugitives,”22 but the

Department has not found that to be the case. To the contrary, the Department has found that

judicial officers are well suited to make fair, individualized determinations about the risks, if

any, of releasing a particular defendant pending his or her next court date and that they are able

to do so efficiently with the assistance of an able pretrial services staff and the input of both the

prosecutor and defense counsel. Individualized determination and the basic elements of due

19 18 U.S.C. § 3142(c)(2) (“The judicial officer may not impose a financial condition that results in the pretrial detention of the person.”).

20 18 U.S.C. § 3142(i)(1).

21 18 U.S.C. § 3142(g).

22 Hearings on S. 2838, S. 2839, & S. 2840 Before the Subcomm. on Constitutional Rights and Subcomm. on Improvements in Judicial Machinery of the S. Comm. on the Judiciary, 88th Cong. (1964) (Testimony by George L. Will, Executive Director of the American Society of Professional Bail Bondsmen).


8

process help ensure that federal defendants are not detained unnecessarily or simply because they

are poor.

DISCUSSION

Plaintiffs in this case seek declaratory, injunctive and compensatory relief, alleging that

the mandatory imposition of a bail schedule that sets bail at a fixed amount per charge violates

due process and equal protection. If Clanton’s bail system indeed fixes bond amounts based

solely on the arrest charge, and does not take individual circumstances into account, the Court

should find this system to be unconstitutional. Not only are such schemes offensive to equal

protection principles, they also constitute bad public policy.

I. Fixed-sum Bail Systems are Unconstitutional under the Equal Protection Clause of the Fourteenth Amendment

In general, the Equal Protection Clause of the Fourteenth Amendment prohibits

“punishing a person for his poverty.” Bearden v. Georgia, 461 U.S. 660, 671 (1983). This is

especially true when it comes to depriving a person of his liberty. The Supreme Court has

considered a variety of contexts in which the government attempted to incarcerate or continue

incarceration of an individual because of his or her inability to pay a fine or fee, and in each

context, the Court has held that indigency cannot be a barrier to freedom. Tate, 401 U.S. at 398;

Williams, 399 U.S. at 240-41; Smith, 365 U.S. at 709.

Although much of the Court’s jurisprudence in this area concerns sentencing or early

release schemes, the Court’s Fourteenth Amendment analysis applies in equal, if not greater

force to individuals who are detained until trial because of inability to pay fixed-sum bail

amounts. Liberty is particularly salient for defendants awaiting trial, who have not been found

guilty of any crime. See United States v. Salerno, 481 U.S. 739, 750 (1987) (recognizing the

fundamental nature of the right to pretrial liberty). To be sure, pretrial detention may be


9

necessary in some circumstances including if a court finds a likelihood of future danger to

society or that the defendant poses a flight risk. Fixed-sum bail systems, however, such as the

one allegedly used in Clanton, Alabama, do not take these considerations into account. Such

systems are based solely on the criminal charge. Because such systems do not account for

individual circumstances of the accused, they essentially mandate pretrial detention for anyone

who is too poor to pay the predetermined fee. This amounts to mandating pretrial detention only

for the indigent.

The Fifth Circuit briefly discussed fixed-sum bail systems, otherwise referred to as “bail

schedules,” in Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc). There, the Court held

that the new bail scheme passed by the Florida legislature was not constitutionally deficient

simply because it failed to articulate a presumption against imposing cash bail. The en banc court

noted that Florida’s new system allowed for six different types of pretrial release—cash bail was

but one option of many. Importantly, however, the Court pointed out that the utilization of bond

schedules, and only bond schedules, creates an injustice for individuals who cannot meet the

financial threshold:

Utilization of a master bond schedule provides speedy and convenient release for those who have no difficulty in meeting its requirements. The incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.

Pugh, 572 F.2d at1057.

As correctly noted in Plaintiff’s Motion for Temporary Restraining Order or in the

Alternative Motion for Preliminary Injunction (ECF No. 34), courts in this Circuit have had

occasion to address scenarios analogous to those alleged here. For example, in Frazier v. Jordan,

457 F.2d 726, 728 (5th Cir. 1972), the Fifth Circuit invalidated a sentencing scheme that offered

defendants the choice of immediately paying a $17 fine or serving a 13-day jail sentence as


10

applied to indigent defendants who could not pay the fine. As the Court noted, “[t]he alternative

fine before us creates two disparately treated classes: those who can satisfy a fine immediately

upon its levy, and those who can pay only over a period of time, if then. Those with means avoid

imprisonment; the indigent cannot escape imprisonment.” Id.

Similarly, in Tucker v. City of Montgomery, 410 F. Supp. 494 (M.D. Ala. 1976), this

Court held that the City’s practice of charging a bond to exercise appellate rights denied the

equal protection of the law to indigent prisoners. In so holding, the court found that “[t]he

imposition by the State of financial barriers restricting the availability of appellate review for

indigent criminal defendants has no place in our heritage of Equal Justice Under Law.” Id. at 502

(quoting Burns v. Ohio, 360 U.S. 252, 258 (1959)).

Finally, this Court’s recent decision in United States v. Flowers, 946 F. Supp. 2d 1295

(M.D. Ala. 2013), addressed practices analytically indistinguishable from those practices

Plaintiffs allege are occurring in Clanton. In Flowers, the defendant could avoid prison only if

she paid for her home confinement, an option her poverty prevented. This Court noted correctly

that “it is inequitable for indigent defendants who cannot pay for home-confinement monitoring

to be imprisoned while those who can pay to be subject to the more limited monitored home

confinement avoid prison.” Id. at 1302. If Plaintiffs’ allegations in this case are true, indigent

defendants in Clanton face a similar problem—pay a monetary bond they cannot afford or go to

jail. This determination, like the sentence in Flowers, would be “constitutionally infirm and

[unable to] stand.” Id. at 1300.

II. Public Policy Weighs Strongly Against Fixed Bail Systems

In addition to being unconstitutional, fixed-bail systems that do not account for a

defendant’s indigency are an inadequate means of securing the safety of the public or ensuring


11

the return of the defendant to the court – the central rationales underlying pretrial detention.

Indeed, such schemes are driven by financial considerations, rather than legitimate public safety

concerns. This is bad public policy, and results in negative outcomes for both defendants and the

community at large.

The problems with bail systems based on financial considerations are well-documented.23

As summarized in a recent Department of Justice publication: “The two central issues

concerning money bail are: (1) its tendency to cause unnecessary incarceration of defendants

who cannot afford to pay secured financial conditions either immediately or even after some

period of time; and (2) its tendency to allow for, and sometimes foster, the release of high-risk

defendants, who should more appropriately be detained without bail.”24

When bail amounts are too high for indigent individuals to afford, fewer defendants will

be released pretrial,25 thereby creating a burden on local jails.26 Today, according to a Bureau of

Justice Statistics analysis, more than 60 percent of all jail inmates nationwide are in custody

awaiting an adjudication of their charges, and the majority of these pretrial detainees are charged

23 See, e.g., Timothy R. Schnacke, United States Department of Justice, National Institute of Corrections, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform (2014), available at http://www.pretrial.org/download/research/Fundamentals%20of%20Bail%20-%20NIC%202014.pdf.

24 Id. at 15.

25 Thomas H. Cohen & Brian A. Reaves, United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Pretrial Release of Felony Defendants in State Courts: State Court Processing Statistics, 1990-2004, Special Report, NCJ 214994 (2007) (study of state courts in the 75 largest counties from 1990 to 2004, finding that about 7 of 10 defendants secured release when bail was set at less than $5,000, but only 1 in 10 secured release when bail was set at $10,000 or more), available at http://www.bjs.gov/content/pub/pdf/prfdsc.pdf.

26 See generally Ram Subramaniam, et al., Vera Institute of Justice, Incarceration’s Front Door: The Misuse of Jails in America 29-35 (Feb. 2015), available at http://vera.org/pubs/incarcerations-front-door-misuse-jails-america.


http://www.pretrial.org/download/research/Fundamentals%20of%20Bail%20-%20NIC%202014.pdf

http://www.bjs.gov/content/pub/pdf/prfdsc.pdf

http://vera.org/pubs/incarcerations-front-door-misuse-jails-america

http://vera.org/pubs/incarcerations-front-door-misuse-jails-america

12

with nonviolent offenses.27 Jail overcrowding, in turn, can result in significant security and life

and safety risks for both inmates and staff.28

While there is a need for continued quantitative research on the effects of pretrial

detention, it is clear that the decision to release or detain a defendant pretrial has many collateral

consequences beyond the loss of liberty. As detailed by the Supreme Court:

The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. . . Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent.

Barker v. Wingo, 407 U.S. 514, 532-33 (1972). Incarceration carries weighty mental and

social burdens for the accused and for those closest to them. Family obligations may go

unmet while defendants are detained, and jobs may be lost, both of which can cause

irreparable harm to the defendant, their families, and their communities.

In addition, for many reasons, the judicial decision to detain or release the accused

pretrial may be a critical factor affecting the outcome of a case.29 Pretrial detention can impede

27 Todd D. Minton, United States Department of Justice, Bureau of Justice Statistics, Jail Inmates at Midyear 2012 – Statistical Tables, NCJ 241264, at 1 (2013) available at www.bjs.gov/content/pub/pdf/jim12st.pdf (showing that the percentage of pretrial detainees in jail has remained unchanged since 2005); see also Donna Lyons, Predicting Pretrial Success, State Legislatures, February 2014 at 18-19, available at http://www.ncsl.org/Portals/1/Documents/magazine/articles/2014/SLG_0214_Pretrial_1.pdf; Arthur W. Pepin, Conference of State Court Administrators, Policy Paper: Evidence-Based Pretrial Release (2014), available at http://www.colorado.gov/ccjjdir/Resources/Resources/Ref/EBPre-TrialRelease_2012.pdf.

28 See generally Brown v. Plata, 131 S. Ct. 1910 (2011) (overcrowding in California prisons created unconstitutional conditions of confinement, including inadequate medical and mental health care); see also Hutto v. Finney, 437 U.S. 678, 688 (1978) (upholding 30-day limit on confinement in isolation, noting that overcrowding in the isolation unit contributed to violence and vandalism of cells).

29 Mary T. Phillips, New York City Criminal Justice Agency, Inc., Pretrial Detention and Case Outcomes, Part 1: Nonfelony Cases (2007), available at http://www.nycja.org/lwdcms/doc-view.php?module=reports&module_id=669&doc_name=doc.


http://www.bjs.gov/content/pub/pdf/jim12st.pdf

http://www.ncsl.org/Portals/1/Documents/magazine/articles/2014/SLG_0214_Pretrial_1.pdf

http://www.colorado.gov/ccjjdir/Resources/Resources/Ref/EBPre-TrialRelease_2012.pdf

http://www.nycja.org/lwdcms/doc-view.php?module=reports&module_id=669&doc_name=doc


13

the preparation of a defense, such as gathering evidence and interviewing witnesses, and pretrial

detention can make it more difficult to confer with an attorney.30 Research indicates that these

barriers have practical consequences: defendants who are detained pretrial have less favorable

outcomes than those who are not detained, notwithstanding other relevant factors such as the

charges they face or their criminal history. One contributing factor is that detained defendants are

more likely to plead guilty, if only to secure release, possibly resulting in at least some wrongful

convictions.31 In some instances, the time someone is detained pretrial can even exceed the likely

sentence if the defendant were later found guilty.32

For these reasons, many states have moved away from bail systems that are based

entirely on the criminal charge and towards systems that allow for different pretrial release

options based on individualized determinations of dangerousness or risk of flight.33 The

30 Andrew D. Leipold, How the Pretrial Process Contributes to Wrongful Convictions, 42 Am. Crim. L. Rev. 1123, 1165 (2005); see also Barker, 407 U.S. at 532-33 (noting that a defendant detained pretrial “is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense.”).

31 Id. See also Mary T. Phillips, New York City Criminal Justice Agency, Inc., Bail, Detention, and Felony Case Outcomes, Research Brief No. 18 (2008), available at http://www.nycja.org/lwdcms/doc-view.php?module=reports&module_id=597&doc_name=doc; Barker, 407 U.S. at 533, n.35.

32 See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2492 (2004).

33 States employ a variety of bail systems that satisfy constitutional concerns. The federal model, while constitutionally sufficient, is not the only adequate scheme. See Arizona (AR.S. Crim. Proc. Rule 7.2); Arkansas (Arkansas Rules of Criminal Procedure, Rule 9.2); Connecticut (C.G.S.A § 54-63b(b)); Illinois (725 ILCS 5/110-2); Maine (15 M.R.S.A §§ 1002, 1006); Massachusetts (MGL Ch. 276, § 58); Michigan (M.C.L.A 780.62-for misdemeanors only); Minnesota (49 M.S.A, Rules Crim. Proc. § 6.02(1)); Missouri (Missouri Supreme Court Rule 33.01); Montana (MCA 46-9-108 (2)); Nebraska (Neb. Rev. Stat. § 29-901); New Mexico (NMRA, Rule 5-401(D)(2)); North Carolina (N.C.G.S.A. § 15A-534(b)); North Dakota (N.D.R. Crim. P. 46); Oregon (ORS 135.245(3)); Rhode Island (RI ST § 12-13-1.3(e)); South Carolina (S.C. Code § 17-15-10—for non-capital cases only); South Dakota(SDCL § 23A-43-2—for non-capital cases only); Tennessee (T. C. A § 40-11-116(a)); Vermont (13 V.S.A § 7554—for misdemeanors only); Washington (WA ST SUPER CT CR CrR 3.2(b)—for non-capital cases only); Wisconsin (W.S.A 969.01(4)); Wyoming (WY RCRP Rule 46.1(c)(1)(B)—for non-capital cases only). See generally Cynthia E. Jones, “Give Us Free:” Addressing Racial Disparities in Bail Determinants, 16 N.Y.U. J. Leg. & Pub. Pol’y 919, 930 (2013).




14

American Bar Association’s Standards for Criminal Justice have also evolved to reflect the

importance of the presumption of pretrial release and the need for individualized determinations

before imposing pretrial detention. The Standards advocate for the imposition of the least

restrictive of release conditions necessary to ensure the defendant’s appearance in court. The

Standards also include guidelines to limit the use of financial conditions for pretrial release.34

The use of a more dynamic bail scheme, such as that set forth in the federal Bail Reform

Act, not only ensures adherence to constitutional principles of due process and equal protection,

but constitutes better public policy. Individualized determinations, rather than fixed-sum

schemes that unfairly target the poor, are vital to preventing jail overcrowding, avoiding the costs

attendant to incarceration,35 and providing equal justice for all. Consequently, in light of the

potential harmful consequences of prolonged confinement and the strain that unnecessary

confinement puts on jail conditions, the United States urges that pretrial detention be used only

when necessary, as determined by an appropriate individualized determination.

CONCLUSION

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. For these reasons, if the bail system in Clanton is as

Plaintiff describes, the system should not stand.

34 ABA Standards for Criminal Justice, Pretrial Release, Standard 10-1.4 (3d ed. 2007).

35 As noted by the Supreme Court, pretrial detention not only adversely impacts defendants – it also creates significant costs for taxpayers. See Tate, 401 U.S. at 399 (prolonged pretrial detention “saddles the State with the cost of feeding and housing [the defendant] for the period of his imprisonment.”).


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Respectfully submitted,

VANITA GUPTA Acting Assistant Attorney General Civil Rights Division

United States Department of Justice MARK KAPPELHOFF Deputy Assistant Attorney General Civil Rights Division JONATHAN M. SMITH (DC 396578) Chief

Civil Rights Division Special Litigation Section GEORGE L. BECK, JR. United States Attorney Middle District of Alabama Of Counsel: Lisa Foster (CA 122178) /s/ Winsome G. Gayle Director WINSOME G. GAYLE (DC 479887) Access to Justice Initiative Special Litigation Counsel Telephone: (202) 514-7073 Civil Rights Division [email protected] Special Litigation Section [email protected] Jennifer Katzman (NY 4388898) /s/ Paul Killebrew Senior Counsel PAUL KILLEBREW (LA 32176) Access to Justice [email protected] Telephone: (202) 514-7086 [email protected] /s/ Sharon Brett

SHARON BRETT (NY 5090279) Trial Attorneys Robert B. Bullock (CA 219942) Civil Rights Division Senior Counsel Special Litigation Section Access to Justice [email protected] Telephone: (202) 514-5324 [email protected] Andrew Stanner (DC 979839) Senior Counsel Access to Justice Telephone: (202) 353-9024 [email protected]


mailto:[email protected]







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/s/Robert G. Anderson ROBERT G. ANDERSON (MSB 1589) Assistant United States Attorney 131 Clayton Street Montgomery, AL 36104 (334) 223-7280 [email protected] Attorneys for the United States of America

_____________________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify that on February 13, 2015, a copy of the foregoing Statement of Interest

was filed electronically. Notice of this filing will be sent by email to all parties by operation of

the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF

System.

/s/ Robert G. Anderson Assistant United States Attorney



Case 4:15-cv-04959-YGR Document 2-3 Filed 10/28/15 Page 1 of 2

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