Petition for Writ of Certiorari — Maurice Walker, Individually and on Behalf of All Others Similarly Situated, Petitioner v. City of Calhoun, Georgia

Supreme Court briefDec 20, 2018

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No. 18IN THE

Supreme Court of the United States

MAURICE WALKER,

on behalf of himself and others similarly situated,

Petitioner,

CITY OF CALHOUN, GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ALEC KARAKATSANIS

CIVIL RIGHTS CORPS

910 17th St. N.W.

Fifth Floor

Washington, D.C. 20006

SARAH GERAGHTY

RYAN PRIMERANO

SOUTHERN CENTER

FOR HUMAN RIGHTS

83 Poplar St. N.W.

Atlanta, GA 30303

SETH P. WAXMAN

DANIEL S. VOLCHOK

Counsel of Record

ALBINAS J. PRIZGINTAS

ARPIT K. GARG

SAMUEL M. STRONGIN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave. N.W.

Washington, D.C. 20006

(202) 663-6000

daniel.volchok@wilmerhale.com

QUESTIONS PRESENTED

1. Whether heightened scrutiny under the Fourteenth Amendment applies to a government policy that

keeps misdemeanor and traffic-offense arrestees in jail

pretrial solely because they are poor.

2. Whether the government can keep misdemeanor and traffic-offense arrestees in jail for up to 48

hours after arrest solely because they are poor when it

has offered no reason for doing so.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................ i

TABLE OF AUTHORITIES ........................................... v

OPINIONS BELOW .......................................................... 1

JURISDICTION ................................................................. 2

CONSTITUTIONAL AND OTHER PROVISIONS INVOLVED.................................................... 2

INTRODUCTION .............................................................. 2

STATEMENT ..................................................................... 4

A. Factual Background ............................................. 4

B. Initial District Court Proceedings ..................... 5

C. First Appeal And Remand .................................. 7

D. Decision Below ...................................................... 8

REASONS FOR GRANTING THE PETITION ............................................................................ 12

THE ELEVENTH CIRCUIT’S HOLDING THAT

HEIGHTENED SCRUTINY DOES NOT APPLY

TO CALHOUN’S BAIL POLICY WARRANTS

REVIEW ........................................................................ 12

A. The Decision Below Conflicts With

Fifth Circuit Precedent ..................................... 12

B. The Decision Below Is Wrong .......................... 15

II. THE ELEVENTH CIRCUIT’S HOLDING THAT

CALHOUN’S BAIL POLICY IS CONSTITUTIONAL WARRANTS REVIEW .................................... 22

III. THE QUESTIONS PRESENTED ARE IMPORTANT AND RECURRING ....................................... 26

(iii)

TABLE OF CONTENTS—Continued

Page

CONCLUSION ................................................................. 30

APPENDIX A: Opinion of the United States

Court of Appeals for the Eleventh Circuit,

dated August 22, 2018 ................................................ 1a

APPENDIX B: Order of the United States

District Court for the Northern District of

Georgia, dated June 16, 2017 .................................. 65a

APPENDIX C: Standing Order Regarding

Pre-Trial Appearance, Establishment of

Bonds in Advance of Initial Appearance

Pursuant to State Law and Individualized

Indigency Determinations of the Municipal

Court for the City of Calhoun, State of

Georgia, dated November 23, 2015 (filed as

Defendant’s Exhibit 5, No. 4:15-cv-00170HLM, Doc. 29-5 (N.D. Ga.)) .................................... 79a

TABLE OF AUTHORITIES

CASES

Page(s)

Barker v. Wingo, 407 U.S. 514 (1972) ............................. 29

Bearden v. Georgia, 461 U.S. 660 (1983) .... 2, 5, 15, 16, 17, 18

Betterman v. Montana, 136 S. Ct. 1609 (2016) .............. 17

Bonner v. City of Prichard, 661 F.2d 1206 (11th

Cir. 1981) (en banc)..................................................... 22

Brangan v. Commonwealth, 80 N.E.3d 949

(Mass. 2017) ................................................................. 27

County of Riverside v. McLaughlin, 500 U.S.

44 (1991) ......................................................................... 9

Curry v. Yachera, 835 F.3d 373 (3d Cir. 2016) .............. 27

Douglas v. California, 372 U.S. 353 (1963) ................... 19

Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972) ........ 3, 14

Gerstein v. Pugh, 420 U.S. 103 (1975)......................... 3, 27

Gideon v. Wainwright, 372 U.S. 335 (1963) ................... 19

Glover v. United States, 531 U.S. 198 (2001) ................... 3

Griffin v. Illinois, 351 U.S. 12 (1956) ....................... 19, 20

Heller v. Doe, 509 U.S. 312 (1993) ................................... 16

Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th

Cir. 2014) (en banc)..................................................... 27

Lozman v. City of Riviera Beach, 138 S. Ct.

1945 (2018) ................................................................... 23

McCullen v. Coakley, 134 S. Ct. 2518 (2014) ................. 16

TABLE OF AUTHORITIES—Continued

Page(s)

Monell v. Department of Social Services, 436

U.S. 658 (1978) .............................................................. 8

ODonnell v. Harris County, 892 F.3d 147 (5th

Cir. 2018) ............................................................. passim

ODonnell v. Harris County, 251 F. Supp. 3d.

1052 (S.D. Tex. 2017) ............................................ 28, 29

Orr v. Orr, 440 U.S. 268 (1979) ........................................ 16

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

1978) (en banc) ................................................ 17, 20, 21

Reed v. Ross, 468 U.S. 1 (1984) ........................................ 17

Rosales-Mireles v. United States, 138 S. Ct.

1897 (2018) ..................................................... 3, 4, 19, 25

San Antonio Independent School District v.

Rodriguez, 411 U.S. 1 (1973) ..................... 8, 17, 24, 25

Schweiker v. Wilson, 450 U.S. 221 (1981) ...................... 16

Smith v. Secretary, Department of Corrections,

572 F.3d 1327 (11th Cir. 2009) .................................. 22

Soldal v. Cook County, 506 U.S. 56 (1992) .................... 23

Tate v. Short, 401 U.S. 395 (1971) ..................... 2, 5, 15, 18

United States v. James Daniel Good Real

Property, 510 U.S. 43 (1993) ............................... 23, 24

United States v. Virginia, 518 U.S. 515 (1996).............. 22

Vance v. Bradley, 440 U.S. 93 (1979) .............................. 16

Walker v. City of Calhoun, 2016 WL 361612

(N.D. Ga. Jan. 28, 2016)............................................ 6, 7

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Wengler v. Druggists Mutual Insurance Company, 446 U.S. 142 (1980) .......................................... 16

Whren v. United States, 517 U.S. 806 (1996) ................. 24

Williams v. Illinois, 399 U.S. 235 (1970) ......... 2, 5, 15, 18

Younger v. Harris, 401 U.S. 37 (1971) .............................. 8

CONSTITUTIONAL

AND STATUTORY PROVISIONS

U.S. Const. amend. IV. ................................................. 2, 24

28 U.S.C. §1254 .................................................................... 2

42 U.S.C. §1983 .................................................................... 8

Ga. Code Ann. §40-6-95 ....................................................... 4

OTHER AUTHORITIES

Federal Rule of Civil Procedure 65(d) ............................. 7

Heaton, Paul, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017)................... 26, 27, 29

Wiseman, Samuel R., Pretrial Detention and

the Right To Be Monitored, 123 Yale L.J.

1344 (2014) ................................................................... 27

Zeng, Zhen, Bureau of Justice Statistics, Jail

Inmates in 2016 (Feb. 2018), at

https://www.bjs.gov/content/pub/pdf/ji16.p

df ............................................................................... 3, 26

IN THE

Supreme Court of the United States

No. 18MAURICE WALKER,

on behalf of himself and others similarly situated,

Petitioner,

CITY OF CALHOUN, GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Maurice Walker respectfully petitions for a writ of

certiorari to review the judgment in this case of the

United States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The Eleventh Circuit’s most recent opinion in this

case (App. 1a-64a) is published at 901 F.3d 1245. Its

prior opinion in the case is available at 682 F. App’x

721. The district court’s second opinion entering a preliminary injunction in this case (App. 65a-78a) is unpublished but available at 2017 WL 2794064. Its first

opinion entering a preliminary injunction is unpublished but available at 2016 WL 361612.

JURISDICTION

The Eleventh Circuit’s judgment was entered on

August 22, 2018. App. 1a. On November 13, Justice

Thomas extended the time for filing this petition

through December 20. This Court has jurisdiction under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND OTHER

PROVISIONS INVOLVED

The Fourteenth Amendment to the U.S. Constitution provides in relevant part:

No State shall … deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the equal protection of the laws.

Respondent’s “Standing Bail Order” appears in the

appendix (pages 79a-86a).

INTRODUCTION

This Court has long held that under the Equal Protection and Due Process Clauses, individuals may not

be “subjected to imprisonment solely because of [their]

indigency.” Tate v. Short, 401 U.S. 395, 398 (1971); accord Bearden v. Georgia, 461 U.S. 660, 672-673 (1983);

Williams v. Illinois, 399 U.S. 235, 240-241 (1970). This

right against wealth-based incarceration is infringed by

respondent Calhoun, Georgia’s policy on the setting of

money bail for people arrested for traffic or misdemeanor offenses. Under that policy, arrestees with

money can buy near-immediate release, while their

poor counterparts are jailed for up to 48 hours, solely

because they are poor.

A divided panel of the Eleventh Circuit held that

this policy did not trigger heightened scrutiny, and it

upheld the policy even though Calhoun never offered

any justification for it, i.e., any reason why the City

needs to keep poor arrestees (and only poor ones) in jail

for 48 hours before releasing them. Those holdings are

wrong under this Court’s case law, and they conflict

with precedent of the Fifth Circuit, which has repeatedly held that infringements of the right against

wealth-based incarceration trigger heightened scrutiny. See ODonnell v. Harris County, 892 F.3d 147, 159

(5th Cir. 2018) (opinion on rehearing); Frazier v. Jordan, 457 F.2d 726, 728 (5th Cir. 1972).

This conflict merits review because the panel’s

weakening of the right against wealth-based incarceration will have grave real-world implications for an

enormous number of people. Millions of people are put

in jail in the United States each year, with upwards of

three-quarters of a million people in jails throughout

the country on an average day. See Zeng, Bureau of

Justice Statistics, Jail Inmates in 2016, at 1 (Feb.

2018), at https:// www.bjs.gov/content/pub/pdf/ji16.pdf.

And as this Court recently reiterated, “ ‘[a]ny amount

of actual jail time’ ” imposes “ ‘exceptionally severe consequences for the incarcerated individual.’ ” RosalesMireles v. United States, 138 S. Ct. 1897, 1907 (2018)

(quoting Glover v. United States, 531 U.S. 198, 203

(2001)). Those consequences—as this Court recognized

in Gerstein v. Pugh, 420 U.S. 103, 114 (1975), and as the

dissent and several amici detailed below—include loss

of jobs and housing as well as disruption of family connections, such as inability to care for young children or

elderly parents. These harms, in turn, often lead to in-

creases in crime, thereby spreading the burden beyond

arrestees and their families to the general public. See

Rosales-Mireles, 138 S. Ct. at 1907 (the imposition of

jail time burdens “society[,] which bears the direct and

indirect costs of incarceration”); infra pp.26-29. The

Eleventh Circuit approved the infliction of those harms

based on deeply flawed reasoning, and despite any proffered justification for Calhoun’s policy. Its decision

should not stand.

STATEMENT

A. Factual Background

In September 2015, petitioner Maurice Walker was

arrested in Calhoun, Georgia, and charged with being a

pedestrian under the influence of alcohol. App. 2a.

Although that offense carries no jail time, see Ga. Code

Ann. §40-6-95, Walker was incarcerated and “told by an

officer that ‘he would not be released unless he paid the

standard $160 cash bond,’ ” App. 2a.

The $160 amount came from the bail schedule (i.e.,

a chart) that Calhoun used at the time to determine

whether misdemeanor and traffic-offense arrestees

would be released prior to trial. App. 3a. For every

offense, the amount of secured bail required under the

schedule was exactly “the fine an arrestee could expect

to pay if found guilty, plus applicable fees.” Id.1

Walker could not afford $160: He has a mental illness that prevents him from working, he owns no property, and his only income is a $530 monthly disability

check. App. 2a; Dist. Ct. Dkt. 4-1, at ¶4. Under Cal1

“Secured” bail means that the money must be paid before

release. “Unsecured” bail, by contrast, must be paid only if a required court appearance is missed.

houn’s policy, those who could not pay the preset cash

amount remained in jail until the next court session,

while those able to pay were released almost immediately. App. 3a. Court sessions were held only on nonholiday Mondays, so those arrested during a week leading up to a Monday holiday (like Walker) could spend

up to 13 days in jail because of their indigence. Id.

B. Initial District Court Proceedings

1. Five days after his arrest, Walker (while still

incarcerated) filed this action. On behalf of himself and

a putative class, he asserted that Calhoun’s bail policy

violated the Due Process and Equal Protection Clauses

by “jailing the poor because they cannot pay a small

amount of money.” App. 3a. Of particular relevance

here, Walker alleged that the policy infringed the constitutional right against wealth-based incarceration,

App. 17a, a right this Court has grounded in both equalprotection and due-process principles, see Bearden, 461

U.S. at 664-673; Tate, 401 U.S. at 397-401; Williams,

399 U.S. at 239-245.2

The day after Walker sued, he was released from

jail on a personal-recognizance bond, “by agreement

with the City’s counsel.” App. 3a.

2. Approximately two months later, Calhoun (in

opposing Walker’s motion for a preliminary injunction)

disclosed a new “Standing Bail Order.” App. 3a, 79a86a. Like the policy in effect when Walker was arrested, the SBO conditions pretrial freedom for misdemeanor and traffic-offense arrestees on an upfront

Walker also alleged that the policy violated his due-process

right to pretrial liberty. See App. 24a. That right is not at issue in

this petition.

payment of a preset amount, an amount intentionally

equal in all cases to the fine and surcharge imposed upon conviction. See App. 82a (“[T]he amount necessary

for secured bail … represents the expected fine with

applicable surcharges … should the accused later enter

a plea, or be found guilty following a bench trial.”),

quoted in App. 3a.

Unlike the prior policy, however, the SBO caps

pretrial incarceration of poor misdemeanor and trafficoffense arrestees at 48 hours. It does this by providing

(1) that within 48 hours of arrest, arrestees who have

not been released receive a counseled hearing during

which they can demonstrate indigence, and (2) that

those who do show indigence are released on recognizance. App. 4a-5a, 84a-86a. It also provides that jailed

arrestees who do not receive such a hearing are released on recognizance 48 hours after arrest. App. 5a.

3. The district court granted Walker’s motion for

a preliminary injunction. Walker v. City of Calhoun,

2016 WL 361612, at *14 (N.D. Ga. Jan. 28, 2016).

In addressing likelihood of success on the merits,

the court relied on the Williams-Tate-Bearden line of

cases to hold that wealth-based incarceration of pretrial

arrestees is impermissible absent an adequate justification. See Walker, 2016 WL 361612, at *6. Applying

that holding, the court ruled that “[t]he bail policy under which [Walker] was arrested clearly is unconstitutional.” Id. at *11. The court also concluded that Calhoun’s revised policy, although “shorten[ing] the

amount of time that indigent arrestees are held in jail

to forty-eight hours,” suffered from the same constitutional infirmity. Id. The court accordingly ordered

Calhoun “to implement post-arrest procedures that

comply with the Constitution” and, until then, to

promptly “release … misdemeanor arrestees” without

requiring any upfront cash payment. Id. at *14.

C. First Appeal And Remand

Without addressing the merits, the Eleventh Circuit vacated the preliminary injunction and remanded,

holding that the injunction was not specific enough to

satisfy Federal Rule of Civil Procedure 65(d). App. 5a6a.

On remand, the district court solicited briefing on

how to proceed. App. 68a-69a. One dispute that the

briefing crystallized was the applicable standard of

scrutiny. In Calhoun’s view, rational-basis scrutiny applied because “indigence does not make [an] individual

a member of a suspect class.” App. 71a n.2. Walker, by

contrast, had previously contended that heightened

scrutiny applied under the Williams-Tate-Bearden line

of cases (and that Calhoun—having offered no justification for incarcerating indigents for 48 hours after arrest—had not carried its burden). See, e.g., Dist. Ct.

Dkt. 34, at 9-11.

Again invoking Williams, Tate, and Bearden, the

district court agreed with Walker, both as to the standard of scrutiny and as to Calhoun’s failure to satisfy it.

App. 70a-71a & n.2. The court therefore issued a revised preliminary injunction requiring Calhoun to determine arrestees’ ability to pay bail within 24 hours of

arrest, and to immediately release those who established indigence, either with no conditions or on unsecured bail, i.e., a promise to pay if they missed a required court appearance. App. 75a-78a.

D. Decision Below

1. A divided panel of the Eleventh Circuit vacated the revised preliminary injunction and remanded.

App. 45a.

The panel first (unanimously) rejected three

threshold arguments that Calhoun had raised: that

Younger v. Harris, 401 U.S. 37 (1971), required abstention; that Calhoun could not be liable under 42 U.S.C.

§1983, as interpreted in Monell v. Department of Social

Services, 436 U.S. 658 (1978); and that Walker’s claim

had to be brought under the Eighth Amendment rather

than the Fourteenth. App. 7a-13a, 15a-19a; see also

App. 46a n.1 (dissent agreeing with these holdings).

The majority then held that the district court was

“wrong to apply heightened scrutiny,” App. 24a, rejecting Walker’s contention that infringement of the right

against wealth-based incarceration triggers such scrutiny.3

The panel acknowledged that “wealth-based distinctions [can be] impermissible.” App. 21a. But under

San Antonio Independent School District v. Rodriguez,

411 U.S. 1 (1973), the panel stated, such distinctions are

impermissible only if they impose an “ ‘absolute deprivation’ of [a] benefit,” App. 23a; “mere diminishment of

some benefit” is insufficient, App. 22a. And 48 hours of

incarceration, the panel asserted, is not an “absolute

deprivation” of liberty. App. 23a. Rather, in the panel’s view Calhoun’s policy provides that indigents

“must merely wait some appropriate amount of time to

The panel also rejected Walker’s separate argument that infringements of the right to pretrial liberty trigger heightened

scrutiny. App. 24a-26a. Again, that right (and hence that holding)

are outside the scope of this petition.

receive the same benefit as the more affluent,” “namely

pretrial release.” Id. If that was enough to trigger

heightened scrutiny, the panel contended—equating

the right to physical liberty with a (non-existent) right

to have mail delivered quickly—then the Postal Service

would incur heightened scrutiny for imposing a fee to

use “express service.” App. 23a-24a; accord App. 27a.

In a footnote, the panel acknowledged that the

Fifth Circuit in ODonnell “applied heightened scrutiny

under the Equal Protection Clause” to a bail policy that

effected wealth-based incarceration on misdemeanor

arrestees. App. 33a n.12. The panel deemed ODonnell

distinguishable, however, largely based on the “extensive factual findings” made in that case. Id.

Having rejected heightened scrutiny, the panel

held the SBO constitutional. App. 32a-34a. Its rationale was that this Court, in County of Riverside v.

McLaughlin, 500 U.S. 44 (1991), held that probablecause hearings are presumed valid under the Fourth

Amendment if conducted within 48 hours of arrest, id.

at 56. Although the jurisdiction in McLaughlin did not

give probable-cause hearings to wealthy arrestees

sooner than indigent ones (whereas Calhoun, as explained, does release moneyed arrestees sooner than

poor ones), the panel imported McLaughlin’s FourthAmendment ruling into the Fourteenth-Amendment

context, holding that “indigency determinations for

purposes of setting bail are presumptively constitutional if made within 48 hours of arrest,” App. 33a.

At the end of its opinion, the panel unanimously

ruled that even though it had upheld the SBO, Walker’s

injunctive-relief claim was not moot because Calhoun

could revert to the policy that was in place when he was

arrested. App. 38a-43a; see also App. 46a n.1 (dissent

agreeing with this holding). But, the majority concluded, while the superseded policy could be enjoined, that

did not provide a basis for the district court to enjoin

the SBO. App. 43a-44a.

2. Judge Martin dissented in relevant part. She

would have held that Calhoun’s policy of wealth-based

incarceration triggered heightened scrutiny under the

Williams-Tate-Bearden line of cases, and that Calhoun

had not satisfied its burden under such scrutiny. App.

46a-47a, 57a, 64a.

In several cases, Judge Martin expounded, this

Court has “recognized that wealth-based detention is

not permitted by our Constitution.” App. 47a. Those

cases, she said—including Rodriguez—“support the …

application of heightened scrutiny under the Equal

Protection Clause to the City’s bail policy.” Id. That

was because, “[u]nder the Standing Bail Order,” if “two

people, one who has money and the other who does not

… are arrested for the same crime … under the same

circumstances,” “[t]he person who has money pays it

and walks away,” while the “indigent can’t pay, so he

goes to jail. This is plainly imprisonment solely because

of indigent status,” triggering heightened scrutiny.

App. 48a (quotation marks omitted).

The panel’s contrary conclusion, Judge Martin stated, rested on “word play.” App. 49a. Specifically, the

court simply “rename[d] the interest” at issue, changing it from “freedom from [wealth-based] incarceration” to immediate “access to pretrial release.” Id.

This change, Judge Martin said, allowed the panel to

treat “48 hours in jail as a mere delay or ‘diminishment’

of the benefit of being released, instead of the deprivation of liberty it surely is.” App. 49a-50a. That approach, she continued, ignored the “very real conse-

quences” of any incarceration, including loss of jobs or

homes and disruption of family connections. App. 52a.

Given those severe consequences, she reasoned, it was

“unremarkable to say that being jailed for 48 hours is

more than a mere inconvenience,” id., and likewise unremarkable to say that “an incarcerated person suffers

a complete deprivation of liberty within the meaning of

Rodriguez, whether the[] jail time lasts two days or

two years,” App. 50a. This last point was reinforced, in

her view, by the fact that none of this Court’s relevant

cases “qualified how long the confinement had to last

before it became a deprivation of liberty.” Id.

By refusing to apply heightened scrutiny, Judge

Martin wrote, the panel departed from ODonnell, in

which “the Fifth Circuit looked to Rodriguez in holding

that ‘indigent misdemeanor arrestees [who] are unable

to pay secured bail … sustain an absolute deprivation of

their most basic liberty interest[]—freedom from incarceration.’ ” App. 51a (quoting ODonnell, 892 F.3d at

162). The panel’s claim that ODonnell was “factually

distinct” failed, she explained, because “the only difference between [the] system” at issue there “and Calhoun’s system[] is that the [former] allowed indigents

to be detained for longer than 48 hours.” App. 51a, 52a.

In her view, that difference was not “meaningful” under relevant precedent. App. 52a.

Applying heightened scrutiny, Judge Martin concluded that Calhoun had not carried its burden because

it “gave no justification for its policy of detaining indigents for 48 hours.” App. 63a. She rejected Calhoun’s

lone defense: that its policy was valid in light of

McLaughlin. App. 59a-61a. If that defense had merit,

she stated, then Calhoun could adopt “a bail policy that

releases all arrestees after booking, except for female,

black, or Catholic arrestees,” who were “detained for 48

hours, given a hearing, and then released.” App. 60a61a. That, Judge Martin reasoned, would “plainly” be

unconstitutional,

notwithstanding

McLaughlin’s

Fourth Amendment holding. App. 61a. The same, she

wrote, was true here. Id.

REASONS FOR GRANTING THE PETITION

THE ELEVENTH CIRCUIT’S HOLDING THAT HEIGHTENED SCRUTINY DOES NOT APPLY TO CALHOUN’S BAIL

POLICY WARRANTS REVIEW

Calhoun’s bail policy keeps poor misdemeanor and

traffic-offense arrestees in jail pretrial longer than nonindigent ones. The Eleventh Circuit held that this infringement of the right against wealth-based incarceration does not trigger heightened scrutiny. That holding

is wrong under this Court’s precedent, and it conflicts

with decisions from the Fifth Circuit.

A. The Decision Below Conflicts With Fifth Circuit Precedent

1. The Fifth Circuit has repeatedly held that violations of the right against wealth-based incarceration

incur heightened scrutiny.

ODonnell, for example, involved a challenge to a

Texas county’s bail policy that (as here) kept pretrial

misdemeanor arrestees in jail only because they were

poor. See 892 F.3d at 152-153, 162. Citing Williams

and Tate, the Fifth Circuit (speaking through Judge

Clement) recognized that this Court “has found that

heightened scrutiny is required when criminal laws detain poor defendants because of their indigence.” Id. at

161. ODonnell further recognized that in Rodriguez,

this Court—citing Williams and Tate—had reaffirmed

that heightened scrutiny applied in such situations. Id.

The Fifth Circuit concluded that ODonnell presented

the “same basic injustice” as those cases, namely that

“poor arrestees … are incarcerated where similarly

situated wealthy arrestees are not, solely because the

indigent cannot afford to pay.” Id. at 162. The court

therefore held that “[h]eightened scrutiny of the County’s policy [was] appropriate.” Id. That holding cannot

be reconciled with the panel’s ruling here that Calhoun’s “scheme does not trigger heightened scrutiny

under the Supreme Court’s equal protection jurisprudence.” App. 23a; see App. 51a-52a (dissent).

These conflicting holdings, moreover, flowed from

the diametrically opposed ways that the two circuits

read this Court’s decision in Rodriguez. ODonnell concluded that Rodriguez supported heightened scrutiny

because indigent arrestees in Harris County “sustain

an absolute deprivation of their most basic liberty interests—freedom from incarceration.” 892 F.3d at 162.

The Eleventh Circuit, in contrast, concluded that Rodriguez foreclosed heightened scrutiny because under

Calhoun’s bail policy, indigent arrestees do not suffer

any “absolute deprivation” but instead (the panel asserted) “must merely wait some appropriate amount of

time to receive the same benefit as the more affluent.”

App. 23a.

2. The panel here conceded in a footnote that “the

ODonnell court applied heightened scrutiny under the

Equal Protection Clause.” App. 33a n.12. But it denied

any conflict by claiming that ODonnell was “quite factually distinct.” App. 23a n.10. In particular, the panel

noted that ODonnell involved “extensive factual findings from the district court, resulting from a lengthy

evidentiary hearing, that Harris County did not provide arrestees any opportunity to submit evidence of

relative ability to post bond,” whereas “the Standing

Bail Order guarantees release to indigents within 48

hours.” App. 33a n.12 (quotation marks omitted).

That distinction lacks merit. It is true that a factual difference (in fact the only one) between Calhoun’s

policy and Harris County’s is that the latter allowed

indigents to be detained for longer than 48 hours. App.

52a (dissent). But the length of incarceration played no

part in ODonnell’s holding that heightened scrutiny

applied. Indeed, ODonnell’s lengthy equal-protection

analysis never even mentioned how long indigents were

jailed under Harris County’s policy, let alone suggested

that that mattered. See 892 F.3d at 161-163.

The panel here also stated in passing that the evidence in ODonnell “permitted the Fifth Circuit to conclude that [Harris] County acted with a discriminatory

purpose.” App. 33a n.12 (quotations marks omitted).

The panel never explained why that would matter even

if it were true, and it would not matter. Whether a policy involves discriminatory purpose, disparate impact,

or both has no effect on the nature of the resulting deprivation (here, the loss of liberty), and hence does not

affect whether that deprivation is “absolute” under Rodriguez, triggering heightened scrutiny.

3. Even if the panel’s distinction of ODonnell had

merit, its holding would still conflict with Fifth Circuit

precedent. In Frazier v. Jordan, that court (speaking

through Judge Wisdom), applied strict scrutiny to the

imposition of wealth-based incarceration, holding that

Atlanta’s imprisonment of those who were convicted of

ordinance violations and could not pay a $17 fine would

be constitutional only if it was “necessary to promote a

compelling governmental interest.” 457 F.2d at 728;

accord id. (“Since the difference in treatment is one defined by wealth, the alternative fine … must be tested

by the compelling state interest test.”). Walker’s brief

below cited Frazier’s application of heightened scrutiny

(pp.18, 19), but the panel ignored it, citing Frazier only

in an unrelated string cite, App. 18a n.8.

B. The Decision Below Is Wrong

1. The panel’s refusal to apply heightened scrutiny to Calhoun’s infringement of the right against incarceration based on wealth cannot be reconciled with this

Court’s precedent.

Williams, Tate, and Bearden, each of which invalidated a state law that imposed wealth-based incarceration, make clear that heightened scrutiny applies to any

such law. In each case, this Court, though recognizing

that legitimate government interests were involved,

struck down the challenged law because there were

other ways those interests could have been served.

Williams, for example, held the law at issue unconstitutional—despite the “substantial and legitimate” government interest it implicated—in light of the “numerous alternatives to which the State … may resort in order to avoid imprisoning an indigent … for involuntary

nonpayment of a fine or court costs.” 399 U.S. at 238,

244. Similarly, Tate acknowledged a “valid interest in

enforcing payment of fines,” yet it overturned the challenged law because of the “alternatives to which the

State may constitutionally resort” to serve that interest. 401 U.S. at 399. And likewise, Bearden rejected as

insufficient multiple interests that Georgia cited, noting

that they “can often be served fully by alternative

means.” 461 U.S. at 671-672.

These cases’ invalidation of state laws based on the

availability of alternatives leaves no doubt that heightened scrutiny rather than rational-basis review was

applied. Under rational-basis review, it is “irrelevant

to the equal protection analysis … that other alternatives might achieve approximately the same result.”

Vance v. Bradley, 440 U.S. 93, 103 n.20 (1979). In applying rational-basis review, in other words, courts

“ ‘must disregard’ the existence of alternative methods

of furthering the objective.” Heller v. Doe, 509 U.S.

312, 330 (1993) (quoting Schweiker v. Wilson, 450 U.S.

221, 235 (1981)). With heightened scrutiny, by contrast,

alternatives are highly relevant—often dispositive. See

Wengler v. Druggists Mutual Insurance Company, 446

U.S. 142, 151 (1980) (gender-based classification invalid

where an adequate gender-neutral alternative was

available); Orr v. Orr, 440 U.S. 268, 281 (1979) (Alabama

could not use gender as a proxy for financial need in

setting alimony given that under its alimony laws, “individualized hearings at which the parties’ relative financial circumstances are considered already occur”);

cf. McCullen v. Coakley, 134 S. Ct. 2518, 2539 (2014)

(law failed intermediate First Amendment scrutiny because the government “has available to it a variety of

approaches that appear capable of serving its interests,

without excluding individuals from areas historically

open for speech and debate”). Hence, while the Williams-Tate-Bearden trilogy did not use all of the verbiage traditionally associated with heightened scrutiny,

but see Bearden, 461 U.S. at 666 (stating that laws imposing wealth-based incarceration require “careful inquiry”), each case plainly employed such scrutiny.

Williams, Tate, and Bearden, of course, involved

imprisonment of indigent convicts, rather than (as

here) indigent arrestees. But the cases’ reasoning and

holdings apply a fortiori in the latter context. Pretrial

arrestees, after all, unlike convicts, are “shielded by the

presumption of innocence, the ‘bedrock[,] axiomatic and

elementary principle whose enforcement lies at the

foundation of … our criminal law.’ ” Betterman v. Montana, 136 S. Ct. 1609, 1614 (2016) (alteration in original)

(quoting Reed v. Ross, 468 U.S. 1, 4 (1984)). As the en

banc Fifth Circuit reasoned, therefore, this Court’s

holdings that the Constitution prohibits wealth-based

incarceration of convicts has even “broader effects and

constitutional implications” for those “accused but not

convicted of crime.” Pugh v. Rainwater, 572 F.2d 1053,

1056 (5th Cir. 1978) (en banc). That is particularly true

here, given that Calhoun’s bail schedule always sets the

amount of bail at exactly “the fine an arrestee could expect to pay if found guilty, plus applicable fees.” App.

3a.

Calhoun is thus effectively imposing postconviction fines—just as in Williams, Tate, and

Bearden.

To be clear, Walker’s arguments do not rest on the

notion that indigence is a suspect classification. In fact,

Rodriguez held that normally it is not. But in so holding, the Court expressly exempted the Williams line of

cases from rational-basis review because they involved

an “absolute deprivation” of a benefit—freedom from

incarceration—to a “class … composed only of persons

who were totally unable to pay.” 411 U.S. at 20, 22.

That carve-out is consistent with Bearden’s explanation

that the right against wealth-based incarceration is not

simply about equal protection but instead involves a

“converge[nce]” of due-process and equal-protection

principles. 461 U.S. at 665. Hence, wealth-based incarceration, unlike most wealth-based classifications, is

subject to heightened scrutiny.

2. The decision below acknowledged that Rodriguez—“with a focus on Bearden’s antecedents”—held

that certain “wealth-based distinctions [are] impermissible.” App. 21a. But they are impermissible, the panel

stated, only where indigents suffer an “absolute deprivation” of a benefit. App. 22a, 23a. And Calhoun’s policy of keeping poor arrestees in jail up to 48 hours, the

panel asserted, effected no such deprivation, instead

requiring that indigents “merely wait some appropriate

amount of time to receive the same benefit as the more

affluent.” App. 23a.

This reasoning, for which the panel cited no authority, is simply “word play.” App. 49a (dissent). In particular, the panel sub silentio changed the relevant

“benefit” from “liberty”—which indigent arrestees in

Calhoun indisputably suffer an “absolute deprivation”

of—to immediate “pretrial release.” But there is no basis for that change. None of this Court’s cases suggests

that the “impermissibility of imprisoning a defendant

solely because of his lack of financial resources,”

Bearden, 461 U.S. at 661, evaporates unless the imprisonment is sufficiently long.

In fact, the cases strongly indicate the opposite.

For example, Williams invalidated a law providing that

convicts who were unable to pay a fine could be imprisoned beyond the statutory maximum to work off the

fine amount at a rate of $5 per day. 399 U.S. at 238.

The Court did not limit that invalidation to convicts

who owed at least a certain amount (and thus would be

imprisoned for a certain period). Instead, it stated categorically that states “may not … subject a certain

class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason

of their indigency.” Id. at 242 (emphasis added). Tate’s

holding was similarly unqualified; this Court ruled that

“petitioner’s imprisonment for nonpayment constitutes

precisely the same unconstitutional discrimination [as

in Williams] since petitioner was subjected to imprisonment solely because of his indigency.” 401 U.S. at

397-398. Not “imprisonment of more than 48 hours” (or

any other duration). Just “imprisonment solely because

of … indigency.”

None of this Court’s cases, moreover, framed the

relevant “benefit” the way the panel did, i.e., as immediate pretrial release rather than liberty (let alone did

so with 48 hours of incarceration labeled a mere waiting

period rather than an “absolute deprivation,” App. 23a).

If that framing were valid, then Williams, Tate, and

Bearden would have described the benefit in those cases as something like “release following completion of

sentence,” and would have similarly concluded that the

challenged laws simply required that indigents “merely

wait some appropriate amount of time to receive the

same benefit as the more affluent.” Id. That the Court

did not do so further refutes the panel’s conclusion that

imposing two days in jail (without any articulated reason) involves no “absolute deprivation” and therefore

does not incur heightened scrutiny. That conclusion is

likewise inconsistent with this Court’s recent observation that “ ‘[a]ny amount of actual jail time’ ” imposes

“exceptionally severe consequences for the incarcerated individual.” Rosales-Mireles, 138 S. Ct. at 1907;