Amicus Curiae Brief — Maurice Walker, Individually and on Behalf of All Others Similarly Situated, Petitioner v. City of Calhoun, Georgia

No. 18-814

IN THE

Supreme Court of the United States

MAURICE WALKER,

on behalf of himself and others similarly situated,

Petitioner,

v.

CITY OF CALHOUN, GEORGIA,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

BRIEF OF AMICI CURIAE

LAW PROFESSORS OF CRIMINAL,

PROCEDURAL, AND CONSTITUTIONAL LAW

IN SUPPORT OF PETITIONER

KELLEN R. FUNK

COLUMBIA LAW SCHOOL

435 West 116th Street

New York, NY 10027

CHRIS PAGLIARELLA

JONES DAY

51 Louisiana Ave. NW

Washington, DC 20001

ILANA B. GELFMAN

Counsel of Record

JONES DAY

100 High Street

Boston, MA 02110

(617) 960-3939

igelfman@jonesday.com

Counsel for Amici Curiae Law Professors of

Criminal, Procedural, and Constitutional Law

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 3

I.

THE HISTORY OF BAIL SUPPORTS ROBUST

PROTECTIONS AGAINST ARBITRARINESS IN

PRETRIAL DETENTION PROCEEDINGS ..................... 3

A. Bail Policies Historically Did Not

Condition Pretrial Liberty on a

Defendant’s Ability to Pay ............................. 3

B. The Anglo-American Legal Tradition

Provides Special Protections to

Prevent Arbitrary Pretrial Detention ........... 5

II. EQUAL PROTECTION AND DUE PROCESS

PRINCIPLES REQUIRE HEIGHTENED

SCRUTINY OF BAIL POLICIES THAT

DISCRIMINATE BASED ON INDIGENCY ................... 10

A. The Government May Not Condition a

Substantial Benefit on a Defendant’s

Ability to Pay, Unless the Government

Has No Available Alternative ..................... 10

B. The Government May Not Condition

Release from Pretrial Detention on

Indigency, Unless the Government

Has No Available Alternative ..................... 14

ii

TABLE OF CONTENTS

(continued)

Page

CONCLUSION .......................................................... 16

APPENDIX OF AMICI CURIAE ....................... App. 1

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Bearden v. Georgia,

461 U.S. 660 (1983) ...................................... passim

Buffin v. City & Cty. of San Francisco,

No. 15-cv-4959, 2018 WL 424362

(N.D. Cal. Jan. 16, 2018) ............................... 14, 15

Caliste v. Cantrell,

329 F. Supp. 3d 296 (E.D. La. 2018) ................... 15

Cooper v. City of Dothan,

No. 1:15-cv-425, 2015 WL 10013003

(M.D. Ala. June 18, 2015) .................................... 15

Douglas v. California,

372 U.S. 353 (1963) ........................................ 11, 12

Griffin v. Illinois,

351 U.S. 12 (1956) ........................................ passim

Holland v. Rosen,

895 F.3d 272 (3d Cir. 2018) ................................... 5

Jennings v. Rodriguez,

138 S. Ct. 830 (2018) ............................................ 10

Jones v. City of Clanton,

No. 2:15-cv-34, 2015 WL 5387219

(M.D. Ala. Sept. 14, 2015) .................................... 15

Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963) ................................................ 6

Klopfer v. North Carolina,

386 U.S. 213 (1967) ................................................ 6

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

M.L.B. v. S.L.J.,

519 U.S. 102 (1996) ................................................ 2

ODonnell v. Harris Cty.,

892 F.3d 147 (5th Cir. 2018) ................................ 15

Pierce v. Velda City,

No. 4:15-cv-570, 2015 WL 10013006

(E.D. Mo. June 3, 2015) ....................................... 15

Pugh v. Rainwater,

572 F.2d 1053 (5th Cir. 1978) ........................ 14, 15

Schultz v. State,

330 F. Supp. 3d 1344

(N.D. Ala. 2018).................................................... 15

Sistrunk v. Lyons,

646 F.2d 64 (3d Cir. 1981) ..................................... 6

Stack v. Boyle,

342 U.S. 1 (1951) ............................................ 14, 15

Tate v. Short,

401 U.S. 395 (1971) .............................................. 12

Thompson v. Moss Point,

No. 1:15-cv-182, 2015 WL 10322003

(S.D. Miss. Nov. 6, 2015)...................................... 15

United States v. Salerno,

481 U.S. 739 (1987) ........................................ 10, 15

Williams v. Illinois,

399 U.S. 235 (1970) .............................................. 12

v

TABLE OF AUTHORITIES

(continued)

Page(s)

CONSTITUTIONAL AND STATUTORY AUTHORITIES

1 Stat. 52...................................................................... 8

1 Stat. 91...................................................................... 8

N.M. CONST. art. II ...................................................... 9

Pub. L. No. 98–473, 98 Stat. 1837 (1984) ................... 9

VT. CONST. art. II ......................................................... 9

WIS. CONST. art. I ........................................................ 9

OTHER AUTHORITIES

4 WILLIAM BLACKSTONE,

COMMENTARIES ON THE LAWS OF

ENGLAND (1769) ..................................................... 3

June Carbone,

Seeing Through the Emperor’s New

Clothes: Rediscovery of Basic

Principles in the Administration of

Bail, 34 SYRACUSE L. REV. 517 (1983) ........... 4, 7, 8

F. E. DEVINE,

COMMERCIAL BAIL BONDING (1991) ....................... 4

William F. Duker,

The Right to Bail: A Historical

Inquiry, 42 ALB. L. REV. 33 (1977)......................... 6

Caleb Foote,

The Coming Constitutional Crisis in

Bail I, 113 U. PA. L. REV. 959 (1965) ................. 6, 8

ELSA DE HAAS,

ANTIQUITIES OF BAIL (1940) ................................... 6

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Matthew J. Hegreness,

America’s Fundamental and

Vanishing Right to Bail,

55 ARIZ. L. REV. 909 (2013) .................................... 8

JOHN HOSTETTLER,

SIR EDWARD COKE: A FORCE FOR

FREEDOM (1997)...................................................... 7

Magna Carta (1215) .................................................... 5

Magna Carta (1216) .................................................... 5

William D. McNulty,

The Power of “Compulsory Purchase”

Under the Law of England,

21 YALE L.J. 639 (1912) ......................................... 6

Note, Bail: An Ancient Practice

Reexamined, 70 YALE L.J. 966 (1961) ................... 6

Note, Preventive Detention Before Trial,

79 HARV. L. REV. 1489 (1966) ................................ 9

OFFICE FOR ACCESS TO JUSTICE, CIVIL

RIGHTS DIVISION, U.S. DEP’T OF

JUSTICE, DEAR COLLEAGUE LETTER 2

(Mar. 14, 2016) ..................................................... 15

Timothy R. Schnacke,

A Brief History of Bail,

57 No. 3 Judges’ J. 4 (2018) ................................... 4

TIMOTHY R. SCHNACKE,

NAT’L INST. OF CORR., U.S. DEP’T OF

JUSTICE, FUNDAMENTALS OF BAIL (2014) ............... 9

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

TIMOTHY R. SCHNACKE ET AL.,

PRETRIAL JUSTICE INST., THE

HISTORY OF BAIL AND PRETRIAL

RELEASE (2010)....................................................... 7

Sup. Ct. R. 37.2 ............................................................ 1

Sup. Ct. R. 37.6 ............................................................ 1

1

INTEREST OF AMICI CURIAE 1

Amici are authors of many scholarly books and

articles on criminal, procedural, and constitutional

law related to the issues presented by the petition in

this case.2 Several amici direct clinics or otherwise

participate in criminal litigation at bail hearings and

other pretrial proceedings. While amici have widely

varying views on many constitutional issues relating

to pretrial criminal procedure, in this case amici agree:

Anglo-American legal history and tradition instruct

that bail policies resulting in indigency-based

detention should be subject to heightened scrutiny.

Amici seek to assist the Court’s consideration of

Maurice Walker’s petition by providing (1) a short

history of legal protections applied to bail and pretrial

detention from pre-Norman England to today, and

(2) an overview of Supreme Court jurisprudence

addressing “whether the State has invidiously denied

one class of defendants a substantial benefit available

to another class of defendants.” Bearden v. Georgia,

461 U.S. 660, 665 (1983).

1 Amici curiae notified the parties at least 10 days prior to

the filing of this brief of their intent and request to file it. All

parties have consented to the filing of this brief. See Sup. Ct. R.

37.2(a). No counsel for a party has authored this brief in whole

or in part, and no person other than amici curiae and their

counsel has made a monetary contribution to the preparation or

submission of this brief. See Sup. Ct. R. 37.6.

2 The full list of amici is provided in the Appendix to this

brief.

2

SUMMARY OF ARGUMENT

The Eleventh Circuit sharply departed from

Anglo-American legal tradition when it refused to

apply heightened scrutiny to a government policy of

detaining pretrial defendants solely on the basis of

indigency. Two strains of legal history are relevant

here. First, an examination of English and early

American law demonstrates that strong procedural

protections have long applied in the context of bail and

pretrial detention. Second, a line of Supreme Court

cases beginning with Griffin v. Illinois, 351 U.S. 12

(1956), establishes that rules conditioning a

defendant’s liberty and access to judicial processes on

the defendant’s ability to pay are subject to scrutiny

that “reflect[s] both equal protection and due process

concerns.” M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996).

These two strains of legal history and case law

converge in the instant case, because the City of

Calhoun, Georgia, subjects pretrial defendants to

detention solely on the basis of indigency. Adherence

to legal tradition requires applying heightened

scrutiny to policies such as Calhoun’s. This Court

should grant the petition for a writ of certiorari in

order to clarify that standard of review. In so doing,

this Court would correct a significant departure from

centuries of solicitude for the liberty rights of pretrial

defendants and from the well-established guidelines

of Griffin and its progeny.

3

ARGUMENT

I.

THE HISTORY OF BAIL SUPPORTS ROBUST

PROTECTIONS AGAINST ARBITRARINESS IN

PRETRIAL DETENTION PROCEEDINGS

Heightened scrutiny should apply to a bail policy

that detains the poor longer than the rich, because

centuries of English and American law have provided

defendants with extraordinary protections in the

context of bail proceedings and pretrial detention.

Although the Founders would have been unfamiliar

with bail policies making liberty contingent on wealth,

the Anglo-American legal tradition calls for careful

scrutiny of any such policy to determine whether the

policy imposes pretrial detention arbitrarily. English

and American law have long provided strict

procedural protections for defendants facing pretrial

detention.

A. Bail Policies Historically Did Not

Condition Pretrial Liberty on a

Defendant’s Ability to Pay

As a preliminary matter, the Founders would

have been unfamiliar with—and thus did not

explicitly or implicitly condone—policies that made a

defendant’s pretrial liberty dependent on the

defendant’s ability to proffer cash or secured collateral.

The meaning of “bail” in the criminal context at

the time of the United States’ founding was merely

“delivery” of a person to his “sureties” in exchange for

some pledge—not an actual deposit. See 4 WILLIAM

BLACKSTONE, COMMENTARIES ON THE LAWS OF

ENGLAND 294–96 (1769) (describing system). The

institution of pretrial bail derived from the system of

4

amercements in pre-Norman England. Under this

system, all crimes were privately prosecuted and all

convictions paid in fines, and a defendant could be

released from pretrial confinement if a surety pledged

to pay the total amount of the defendant’s potential

liability. The pledge became a payment due only if the

defendant absconded before trial. June Carbone,

Seeing Through the Emperor’s New Clothes:

Rediscovery of Basic Principles in the Administration

of Bail, 34 SYRACUSE L. REV. 517, 519–20 (1983).

After the Normans replaced monetary fines with a

system of public blood punishments, the pledge-based

bail system continued, except that surety amounts

were set not by a schedule of fines, but instead by

judicial discretion. Id. at 519, 521.

For hundreds of years thereafter in common-law

jurisdictions, a “sufficient” surety might include

nonfinancial pledges of good behavior, or a surety’s

unsecured pledges of property or money, conditioned

on a defendant’s appearance at trial. Timothy R.

Schnacke, A Brief History of Bail, 57 No. 3 Judges’ J.

4, 6 (2018). The personal surety was not to be

purchased; in fact, the United States today is almost

completely alone among common law countries (save

for the Philippines) in permitting indemnification of

sureties. F. E. DEVINE, COMMERCIAL BAIL BONDING 6–

8 (1991) (discussing court disallowance of such

arrangements in England and elsewhere).

Only in the last century has the term “bail”

commonly incorporated upfront transfers intended to

secure an appearance. Schnacke, Brief History, at 6–

7 (contrasting older practices of pledges and promises

with modern “upfront payments”). Modern bail

policies that require upfront payment are therefore

5

substantially more likely to result in pretrial

detention for the indigent than the bail systems

reflected in early English and American case law. See

Holland v. Rosen, 895 F.3d 272, 293–95 (3d Cir. 2018)

(discussing the transition from a surety system to

secured cash bonds in the “mid-to-late Nineteenth

Century,” and subsequent efforts by “federal and state

governments to reform their bail laws to deprioritize

monetary bail” in light of, inter alia, concerns about

discrimination against the poor). The Founders would

not have recognized the bail system as it exists

today—and never condoned bail policies that

condition liberty on a defendant’s ability to pay.

B. The Anglo-American Legal Tradition

Provides Special Protections to Prevent

Arbitrary Pretrial Detention

While the form of bail has changed recently and

dramatically, the Anglo-American tradition of

imposing strict procedural protections against

arbitrary pretrial detention is longstanding. Indeed,

the tradition was well-established long before the

drafting of the U.S. Constitution.

The tradition finds its clearest post-Norman

expression in Magna Carta, which enshrined the

principle that imprisonment was only to follow

conviction by one’s peers. Magna Carta ch. 32 (1216)

(“No free man shall be arrested or imprisoned . . .

except by the lawful judgment of his peers or by the

law of the land.”); accord Magna Carta ch. 39 (1215).

From that principle, English legislators and jurists

over time derived the presumption of innocence, the

right to a speedy trial, and the right to bail—that is, a

defendant’s right to bodily liberty on adequate

6

assurance that he or she would reappear to stand trial.

See, e.g., Klopfer v. North Carolina, 386 U.S. 213, 223

(1967) (speedy trial “has its roots at the very

foundation of our English law heritage” dating to

Magna Carta and earlier); Kennedy v. MendozaMartinez, 372 U.S. 144, 186 (1963) (expounding on

trial right “[d]ating back to Magna Carta”); Sistrunk

v. Lyons, 646 F.2d 64, 68 (3d Cir. 1981) (“Bail was a

central theme in the struggle to implement

the Magna Carta’s 39th chapter which promised due

process safeguards for all arrests and detentions.”).

As the English Parliament gained power through

the 1500s and 1600s, its signal acts of constitutionmaking 3 aimed to constrain executive and judicial

discretion in the administration of pretrial

imprisonment. For example, “the Petition of Right in

1628, the Habeas Corpus Act of 1679, and the Bill of

Rights of 1689” all “grew out of cases which alleged

abusive denial of freedom on bail pending trial.”

Caleb Foote, The Coming Constitutional Crisis in Bail

I, 113 U. PA. L. REV. 959, 966 (1965). See generally

William F. Duker, The Right to Bail: A Historical

Inquiry, 42 ALB. L. REV. 33, 34–66 (1977); ELSA DE

HAAS, ANTIQUITIES OF BAIL (1940); Note, Bail: An

Ancient Practice Reexamined, 70 YALE L.J. 966 (1961).

Each such act sought to limit arbitrariness and

increase fairness in the processes of determining

3 “The English Constitution is sought, not in any single

written documents, as in the United States, but from acts of

Parliament, [and] quasi-acts of Parliament, such as the Magna

Charta [sic], the Petition of Rights (1627) . . . .” William D.

McNulty, The Power of “Compulsory Purchase” Under the Law of

England, 21 YALE L.J. 639, 641 (1912).

7

whether to impose pretrial imprisonment. In 1554,

for instance, Parliament required that the decision to

admit a defendant to bail be made in open session,

that two justices be present, and that the evidence

weighed be recorded in writing. See TIMOTHY R.

SCHNACKE ET AL., PRETRIAL JUSTICE INST., THE

HISTORY OF BAIL AND PRETRIAL RELEASE 3 (2010). In

1628, responding to perceived abuses by the Stuart

kings and their justices and sheriffs, who detained

defendants for months without bail or charge,

Parliament passed the Petition of Right prohibiting

imprisonment without a timely charge. See JOHN

HOSTETTLER, SIR EDWARD COKE: A FORCE FOR

FREEDOM 138 (1997). In the Habeas Corpus Act of

1679, Parliament “established procedures to prevent

long delays before a bail bond hearing was held,”

responding to a case in which the defendant was not

offered bail for over two months after arrest.

SCHNACKE ET AL., BAIL AND PRETRIAL RELEASE, at 4.

Undeterred, Stuart-era sheriffs and justices shifted

tactics to require impossibly high surety pledges that

no surety could responsibly pledge, leading to

defendants’ pretrial detention. Parliament responded

again in 1689 with the English Bill of Rights and its

prohibition on “excessive bail,” a protection later

incorporated into the Eighth Amendment to the U.S.

Constitution. Carbone, New Clothes, at 528–29.

In sum, by the time of the United States’ founding,

pretrial release on bail was a fundamental part of

English

constitutionalism,

with

procedural

protections enshrined in Magna Carta, the Petition of

Right, the Habeas Corpus Act, and the English Bill of

Rights. Together, these statutes required bail

determinations to be made in open court sessions,

8

with an evidentiary record, and in a timely manner.

They ensured that accused defendants were not

detained without charge or without a court’s

consideration of release on bail.

All of these

constraints were designed to ensure a fair, prompt

consideration of each defendant’s case for release.

American practice expanded the right to bail.

Even before the English Bill of Rights, in 1641

Massachusetts made all non-capital cases bailable

(and significantly reduced the number of capital

offenses). Foote, Constitutional Crisis in Bail, at 968.

Pennsylvania’s 1682 constitution provided that “all

prisoners shall be Bailable by Sufficient Sureties,

unless for capital Offenses, where proof is evident or

the presumption great.” See Carbone, New Clothes, at

531 (quoting 5 AMERICAN CHARTERS 3061 (F. Thorpe

ed. 1909)). The vast majority of American states

copied Pennsylvania’s provision in one form or

another at different times; many state constitutions

still contain that language. Matthew J. Hegreness,

America’s Fundamental and Vanishing Right to Bail,

55 ARIZ. L. REV. 909, 920 (2013). The Judiciary Act of

1789 likewise made all non-capital charges bailable, 1

Stat. 91 (“And upon all arrests in criminal cases, bail

shall be admitted, except where the punishment may

be death,” in which cases judges had discretion to

admit a defendant to bail), as did the Northwest

Ordinance, 1 Stat. 52 (“All persons shall be bailable,

unless for capital offenses, where the proof shall be

evident, or the presumption great.”).

Thus, while adopting the English procedural

protections regulating pretrial detention, early

American constitutions also provided additional

guarantees of pretrial liberty. English practice often

9

required a full hearing to determine whether the

defendant was to be admitted to bail; by contrast,

Americans categorically established—in their state

constitutions and in the statute founding the federal

judiciary and territorial courts—that defendants

facing non-capital charges would be eligible for bail.

The only determination left to judicial discretion was

the sufficiency of the sureties, that is, how to bail, not

whether to bail. See TIMOTHY R. SCHNACKE, NAT’L

INST. OF CORR., U.S. DEP’T OF JUSTICE, FUNDAMENTALS

OF BAIL 29–36 (2014).

Though the federal government and some states

later granted the discretion or authority to allow

“preventive” pretrial detention in some cases, see Note,

Preventive Detention Before Trial, 79 HARV. L. REV.

1489, 1490 (1966), that grant of authority was

accompanied by explicit protections long identified

with due process in the English constitutional

tradition, and ordinarily has been limited to

circumstances where a strong government interest

requires such detention. The federal Bail Reform Act

of 1984, for instance, permits detention only in serious

felony cases and only upon a judicial finding by clear

and convincing evidence, after a full adversary

hearing, that the accused presents an unmanageable

flight risk or risk to public safety. Pub. L. No. 98–473,

§ 202, 98 Stat. 1837, 1976 (1984) (codified at 18 U.S.C.

§§ 3141–50). States that have expanded courts’

authority to order pretrial detention have generally

also included such constraints. See, e.g., N.M. CONST.

art. II, § 13; VT. CONST. art. II, § 40; WIS. CONST. art.

I, § 8.

As this brief history illustrates, bail policies have

been constrained for centuries by procedural

10

protections that go well beyond a prohibition on

excessiveness. Laws protecting a defendant’s right to

bail “have consistently remained part of our legal

tradition.” Jennings v. Rodriguez, 138 S. Ct. 830, 864

(2018) (Breyer, J., dissenting). They safeguard “the

individual’s strong interest in liberty,” and this Court

has refused to “minimize the importance and

fundamental nature” of that interest. United States v.

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

II. EQUAL PROTECTION AND DUE PROCESS

PRINCIPLES REQUIRE HEIGHTENED SCRUTINY

OF BAIL POLICIES THAT DISCRIMINATE BASED

ON INDIGENCY

The Eleventh Circuit dismissed a defendant’s

pretrial detention pending bail as mere “delay” that

“does not trigger heightened scrutiny.” Pet. App. 23a.

But, as demonstrated above, the right to timely bail is

fundamental. And, as demonstrated below, any policy

denying such a significant criminal-procedure right

solely due to a defendant’s indigence is subject to

heightened scrutiny. Indeed, this Court prohibits the

government from “invidiously den[ying] one class of

defendants a substantial benefit available to another

class of defendants.” Bearden, 461 U.S. at 665.

A. The Government May Not Condition a

Substantial Benefit on a Defendant’s

Ability to Pay, Unless the Government

Has No Available Alternative

This Court has long been attuned to the danger

that, without vigilance, core aspects of liberty and

judicial process might become a function of resources

rather than of personhood. In a line of cases

beginning with Griffin v. Illinois, 351 U.S. 12 (1956),

11

this Court established that the government cannot

condition a defendant’s liberty from detention or

access to judicial processes on a payment that the

defendant cannot afford, unless no alternative means

can meet the state’s needs.

In Griffin, indigent prisoners lacked the funds to

procure necessary transcripts for a direct appeal. This

Court held the Fourteenth Amendment prohibited

Illinois from conditioning practical access to a direct

appeal on wealth. As Justice Black wrote: “Both equal

protection and due process emphasize the central aim

of our entire judicial system—all people charged with

crime must, so far as the law is concerned, ‘stand on

an equality before the bar of justice in every American

court.’” Id. at 17 (plurality) (quoting Chambers v.

Florida, 309 U.S. 227, 241 (1940)); see id. at 24

(Frankfurter, J., concurring in the judgment) (“If

[Illinois] has a general policy of allowing criminal

appeals, it cannot make lack of means an effective bar

to the exercise of this opportunity.”).

The Court expanded upon Griffin in Douglas v.

California, 372 U.S. 353 (1963). In cases where an

indigent defendant requested appellate counsel,

California law directed a state appellate court to

conduct “an independent investigation of the record”

and appoint counsel only if it judged that counsel

would be “helpful” to the presentation of the case. Id.

at 355 (internal quotation marks and citation

omitted). The appellate court was thus “forced to

prejudge the merits [of an indigent defendant’s

appeal] before it can even determine whether counsel

should be provided,” whereas people who could afford

counsel were not “forced to run this ga[u]ntlet of a

preliminary showing of merit.” Id. at 356–57. This

12

Court held that a such a system violates the

Fourteenth Amendment: “[W]here the merits of the

one and only appeal an indigent has as of right are

decided without benefit of counsel, we think an

unconstitutional line has been drawn between rich

and poor.” Id. at 357 (emphasis removed).

Soon thereafter, this Court applied the logic of

Griffin and Douglas to wealth-based deprivations of

physical liberty. In Williams v. Illinois, the petitioner

was held in prison after the expiration of his one-year

term pursuant to an Illinois law that permitted

continued confinement in lieu of paying off a fine. 399

U.S. 235, 236–37 (1970). Although the law offered “an

apparently

equal

opportunity

for

limiting

confinement to the statutory maximum simply by

satisfying a money judgment,” this Court held that

this was “an illusory choice for Williams or any

indigent[.]” Id. at 242. This Court concluded that the

Fourteenth Amendment prohibits the state from

“making the maximum confinement contingent upon

one’s ability to pay.” Id. The following year, in Tate

v. Short, this Court held that “the 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.” 401 U.S. 395, 398

(1971) (quoting and adopting the reasoning of the

concurrence in Morris v. Schoonfield, 399 U.S. 508,

509 (1970) (White, J., concurring)).

Bearden v. Georgia, 461 U.S. 660 (1983),

synthesized this line of cases. The petitioner in

Bearden challenged the revocation of his probation for

failure to pay a fine. Id. at 662–63. This Court

explained that “[d]ue process and equal protection

13

principles converge in the Court’s analysis” of cases

where the state treats criminal defendants differently

on the basis of wealth: “[W]e generally analyze the

fairness of relations between the criminal defendant

and the State under the Due Process Clause, while we

approach the question whether the State has

invidiously denied one class of defendants a

substantial benefit available to another class of

defendants under the Equal Protection Clause.” Id.

at 665. With appeal to both principles, this Court

required “a careful inquiry into such factors as ‘the

nature of the individual interest affected, the extent

to which it is affected, the rationality of the connection

between legislative means and purpose, [and] the

existence of alternative means for effectuating the

purpose.’” Id. at 666–67 (quoting Williams, 399 U.S.

at 260 (Harlan, J., concurring)).

Considering the relevant factors, this Court

concluded that the Fourteenth Amendment prohibits

revocation of probation solely on the basis of

nonpayment when alternate measures suffice to meet

the state’s interests. Id. at 672–73. “Only if alternate

measures are not adequate to meet the State’s

interests . . . may the court imprison a probationer

who has made sufficient bona fide efforts to pay.” Id.

at 672. To hold otherwise, this Court reasoned,

“would deprive the probationer of his conditional

freedom simply because, through no fault of his own,

he cannot pay the fine.” Id. at 672–73.

Although this Court did not specify a tier of

scrutiny by name, the Bearden rule is heightened

scrutiny in substance. Bearden states a narrowtailoring requirement. Detention for nonpayment

must be the only means of achieving the state’s

14

interests; if alternative means of securing those

interests are available, detention is impermissible.

B. The Government May Not Condition

Release from Pretrial Detention on

Indigency, Unless the Government Has

No Available Alternative

The Bearden rule—that the Fourteenth

Amendment prohibits deprivations of liberty on the

basis of indigence alone, unless no alternative means

exists to meet the government’s interests—applies

“with special force in the bail context, where

fundamental deprivations are at issue and arrestees

are presumed innocent.” Buffin v. City & Cty. of San

Francisco, No. 15-cv-4959, 2018 WL 424362, at *9

(N.D. Cal. Jan. 16, 2018); accord, e.g., Pugh v.

Rainwater, 572 F.2d 1053, 1056–57 (5th Cir. 1978) (en

banc) (“[Pretrial] imprisonment solely because of

indigent status is invidious discrimination and not

constitutionally permissible.”). Timely bail is “a

substantial benefit” that may not be “invidiously

denied one class of defendants.” Bearden, 461 U.S. at

665. The substantiality and importance of bail were

well-established long before the Constitution was

drafted. See Part I.B. Thus, “[d]ue process and equal

protection principles converge,” Bearden, 461 U.S. at

665, and the Bearden rule applies.

Below, the Eleventh Circuit did not meaningfully

attempt to follow the Bearden rule, despite

acknowledging the case’s applicability to Mr. Walker’s

claim. But application is not difficult. The state’s

interest in the pretrial context is in ensuring

defendants’ appearance at future court dates and in

protecting public safety. Stack v. Boyle, 342 U.S. 1, 5

15

(1951); Salerno, 481 U.S. at 750. Bearden thus

prohibits a court from conditioning a defendant’s

pretrial liberty on payment of an unaffordable

amount—that is, essentially denying bail—unless no

alternative measure can adequately promote those

goals. An increasing number of federal courts have

recognized this straightforward application of the

Bearden doctrine. See, e.g., ODonnell v. Harris Cty.,

892 F.3d 147, 162 (5th Cir. 2018) (concluding that

“although the County had a compelling interest in the

assurance of a misdemeanor detainee’s future

appearance and lawful behavior, its policy [of

detaining misdemeanor defendants who could not

afford prescheduled bond amounts] was not narrowly

tailored to meet that interest”).4

4 See also Rainwater, 572 F.2d at 1057; Caliste v. Cantrell,

329 F. Supp. 3d 296, 311–12 (E.D. La. 2018); Schultz v. State,

330 F. Supp. 3d 1344, 1360–62 (N.D. Ala. 2018), appeal docketed

(Sept. 13, 2018); Buffin, 2018 WL 424362, at *9; Thompson v.

Moss Point, No. 1:15-cv-182, 2015 WL 10322003, at *1 (S.D. Miss.

Nov. 6, 2015); Jones v. City of Clanton, No. 2:15-cv-34, 2015 WL

5387219, at *2 (M.D. Ala. Sept. 14, 2015); Pierce v. Velda City,

No. 4:15-cv-570, 2015 WL 10013006, at *1 (E.D. Mo. June 3,

2015); Cooper v. City of Dothan, No. 1:15-cv-425, 2015 WL

10013003, at *1 (M.D. Ala. June 18, 2015); accord Statement of

Interest of the United States Department of Justice at 1, Varden

v. City of Clanton, No. 2:15-cv-34, ECF Doc. 26 (M.D. Ala.

February

13,

2015),

https://www.justice.gov/crt/file/

761266/download (“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.”); OFFICE FOR

ACCESS TO JUSTICE, CIVIL RIGHTS DIVISION, U.S. DEP’T OF

JUSTICE, DEAR COLLEAGUE LETTER 2 (Mar. 14, 2016),

https://www.courts.wa.gov/subsite/mjc/docs/DOJDearColleague.

pdf.

16

This Court should grant the petition for a writ of

certiorari in order to confirm and apply the correct

standard here.

This Court should correct the

Eleventh Circuit’s departure from centuries of AngloAmerican tradition protecting defendants from

arbitrary pretrial detention. And this Court should

reaffirm that “all people charged with crime must, so

far as the law is concerned, stand on an equality

before the bar of justice in every American court.”

Griffin, 351 U.S. at 17 (internal quotation marks and

citation omitted).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

KELLEN R. FUNK

COLUMBIA LAW SCHOOL

435 West 116th Street

New York, NY 10027

CHRIS PAGLIARELLA

JONES DAY

51 Louisiana Ave. NW

Washington, DC 20001

ILANA B. GELFMAN

Counsel of Record

JONES DAY

100 High Street

Boston, MA 02110

(617) 960-3939

igelfman@jonesday.com

Counsel for Law Professors of Criminal,

Procedural, and Constitutional Law

JANUARY 28, 2018

App. 1

───────

APPENDIX

───────

APPENDIX OF AMICI CURIAE 1

Lara Bazelon is Associate Professor of Law and

Director of the Criminal Juvenile Justice and Racial

Justice Clinical Programs at University of San

Francisco School of Law.

Monica C. Bell is Associate Professor of Law at Yale

Law School and Associate Professor of Sociology at

Yale University.

Josh Bowers is Professor of Law at University of

Virginia School of Law.

Erwin Chemerinsky is Dean and Jesse H. Choper

Distinguished Professor of Law at University of

California, Berkeley School of Law.

Gabriel J. Chin is Edward L. Barrett Jr. Chair of Law,

Martin Luther King Jr. Professor of Law, and Director

of Clinical Legal Education at University of

California, Davis School of Law.

Brett Dignam is Vice Dean of Experiential Education

and Clinical Professor of Law at Columbia Law

School.

Jeffrey Fagan is Isidor and Seville Sulzbacher

Professor of Law at Columbia Law School.

Barry Friedman is Jacob D. Fuchsberg Professor of

Law, Affiliated Professor of Politics, and Director of

1 Institutions are listed for affiliation purposes only. All

signatories are participating in their individual capacity, not as

representatives of their institutions.

App. 2

the Policing Project at New York University School of

Law.

Kellen R. Funk is Associate Professor of Law at

Columbia Law School.

Russell Gabriel is Clinical Professor and Criminal

Defense Practicum Director at University of Georgia

School of Law.

Brandon L. Garrett is L. Neil Williams, Jr. Professor

of Law at Duke University School of Law.

Lauryn P. Gouldin is Associate Dean for Faculty

Research and Associate Professor of Law at Syracuse

University College of Law.

Ben Johnson is Assistant Professor of Law at Penn

State Law.

Thea Johnson is Associate Professor of Law at

University of Maine School of Law.

Issa Kohler-Hausmann is Associate Professor of Law

at Yale Law School and Associate Professor of

Sociology at Yale University.

Gerald Leonard is Professor of Law at Boston

University.

Suzanne A. Luban is Clinical Supervising Attorney

and Lecturer in Law at Stanford Law School.

Sara Mayeux is Assistant Professor of Law and

Assistant Professor of History at Vanderbilt

University.

Sandra G. Mayson is Assistant Professor of Law at

University of Georgia School of Law.

Melanie Newport is Assistant Professor of History at

the University of Connecticut.

App. 3

Keramet Reiter is Associate Professor at the

University of California, Irvine School of Law and

School of Social Ecology.

Ira P. Robbins is Professor of Law and Justice,

Barnard T. Welsh Scholar, and Co-Director of the

Criminal Justice Practice & Policy Institute at

American University, Washington College of Law.

Brendan D. Roediger is Associate Professor of Law

and Co-Director of the Civil Advocacy Clinic at St.

Louis University School of Law.

Christine S. Scott-Hayward is Assistant Professor of

Law, Criminology, and Criminal Justice at California

State University, Long Beach.

Jeffrey Selbin is Clinical Professor of Law and

Director of the Policy Advocacy Clinic at University of

California, Berkeley School of Law.

Elisabeth Semel is Clinical Professor of Law and

Director of Clinical Programs at University of

California, Berkeley School of Law.

Sarah Seo is Associate Professor of Law at University

of Iowa College of Law.

Alison Siegler is Clinical Professor of Law and

Director of the Federal Criminal Justice Clinic at

University of Chicago Law School.

Jonathan Simon is Lance Robbins Professor of

Criminal Justice Law and Director of the Center for

the Study of Law and Society at University of

California, Berkeley School of Law.

Jocelyn Simonson is Associate Professor of Law at

Brooklyn Law School.

Fred Smith Jr. is Associate Professor of Law at Emory

Law School.

App. 4

Katharine Tinto is Clinical Professor of Law and

Director of the Criminal Justice Clinic at University

of California, Irvine School of Law.

Ronald C. Tyler is Professor of Law and Director of the

Criminal Defense Clinic at Stanford Law School.

Alexa Van Brunt is Director of Legal Initiatives and

Clinical Associate Professor at the Roderick and

Solange MacArthur Justice Center at Northwestern

Pritzker School of Law.

Alec Walen is Professor of Law at Rutgers Law School

and Professor of Philosophy at Rutgers University.

Ellen

Yaroshefsky

is

Howard

Lichtenstein

Distinguished Professor of Legal Ethics and Executive

Director of the Monroe H. Freedman Institute for the

Study of Legal Ethics at Hofstra University, Maurice

A. Deane School of Law.