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 FOR THE AMERICAN BAR

ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

________

MATTHEW S. HELLMAN

DAVID B. DIESENHOUSE

ANDREW B. CHERRY

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

mhellman@jenner.com

ROBERT M. CARLSON

Counsel of Record

AMERICAN BAR ASSOCIATION

321 North Clark Street

Chicago, IL 60654

(312) 988-5000

abapresident@americanbar.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ....................................................................... 5

I.

II.

The Court Should Follow the ABA’s Lead

and Reject Bail Systems That Fail to

Consider Adequately a Defendant’s

Ability to Pay and That Result in

Unnecessary Pretrial Detention. .......................... 5

A.

The Current ABA Pretrial Release

Standards. ..................................................... 6

B.

Adopted ABA Resolution 112C. ............... 8

C.

Recognizing the Importance of This

Issue, Other Organizations and

Jurisdictions Also Reject Money

Bail. .............................................................. 10

This Court Should Review the Decision

Below Because a Money-Bail System That

Deprives Defendants of Their Liberty

Without Individualized Assessments of

Their

Personal

and

Financial

Circumstances Violates the Constitution. ......... 12

ii

III.

IV.

This Issue Warrants the Court’s

Consideration Because Money Bail Harms

Criminal Defendants and Does Not Serve

the Fair and Proper Administration of

Justice...................................................................... 13

A.

Money Bail Unfairly Harms

Criminal

Defendants

and

Undermines the Criminal Justice

System......................................................... 14

B.

Money Bail That Results in

Pretrial,

Wealth-Based

Incarceration Does Not Advance

the Interests of Justice. ............................ 19

The Decision Below Illustrates the

Constitutional Problems with Money-Bail

Schedules and Warrants Review. ....................... 22

CONCLUSION ................................................................. 26

iii

TABLE OF AUTHORITIES

CASES

Barker v. Wingo, 407 U.S. 514 (1972) ................. 15, 17

Bearden v. Georgia, 461 U.S. 660 (1983)............. 12, 24

Hernandez v. Sessions, 872 F.3d 976 (9th Cir.

2017) ......................................................................... 23

Holland v. Rosen, 895 F.3d 272 (3d Cir.), cert.

denied, 139 S. Ct. 440 (2018) ...................... 11-12, 14

Padilla v. Kentucky, 559 U.S. 356 (2010) ................... 2

Smith v. Bennett, 365 U.S. 708 (1961) ....................... 12

Stack v. Boyle, 342 U.S. 1 (1951)............................ 5, 23

Strickland v. Washington, 466 U.S. 668 (1984) ......... 2

Tate v. Short, 401 U.S. 395 (1971) .............................. 12

United States v. Salerno, 481 U.S. 739 (1987) ......... 13

Williams v. Illinois, 399 U.S. 235 (1970) .................. 12

STATUTES

California Money Bail Reform Act, 2018 Cal.

Legis. Serv. ch. 244 (S.B. 10) (West) ................... 11

OTHER AUTHORITIES

ABA House of Delegates, Resolution 112C

(Aug. 14, 2017), https://www.americanbar.

org/content/dam/aba/images/abanews/2017

%20Annual%20Resolutions/112C.pdf ............... 8, 9

ABA Project on Standards for Criminal

Justice, Standards Relating to Pretrial

Release—Approved Draft, 1968 ............................ 6

iv

ABA, Proposed Resolution and Report (Aug.

2017),

http://www.americanbar.org/con

tent/dam/aba/directories/policy/2017_am_

112C.docx ............................................................ 9, 22

ABA Standards for Criminal Justice: Pretrial

Release (3d ed. 2007), https://www.amer

icanbar.org/content/dam/aba/publications/

criminal_justice_standards/pretrial_releas

e.authcheckdam.pdf ......................... 2, 6, 7, 8, 19, 25

ABA Standards for Criminal Justice, ch. 10,

Pretrial Release (2d ed. 1979) ................................ 6

American Jail Ass’n, Resolutions of the

American

Jail

Association

(2017),

https://www.americanjail.org/files/About%

20PDF/_AJA%20Resolutions%20-%20Jan

uary%202017.pdf .................................................... 10

American Probation and Parole Ass’n,

Resolution – Pretrial Supervision (enacted

June 2010), https://www.appa-net.org/

eweb/Dynamicpage.aspx?webcode=IB_

Resolution&wps_key=3fa8c704-5ebc-41639be8-ca48a106a259 ................................................. 10

Allen J. Beck, Bureau of Justice Statistics,

United States Department of Justice,

Profile of Jail Inmates, 1989 (1991) .................... 21

Allen J. Beck et al., Bureau of Justice

Statistics, United States Department of

Justice, Sexual Victimization in Prisons

and Jails Reported by Inmates, 2011-12

(2013) ....................................................................... 16

v

Stephanos Bibas, Plea Bargaining Outside the

Shadow of Trial, 117 Harv. L. Rev. 2463

(2004) ....................................................................... 17

Robert C. Boruchowitz et al., National Ass’n of

Criminal Defense Lawyers, Minor Crimes,

Massive Waste (Apr. 2009) ................................... 18

John Clark, The Impact of Money Bail on Jail

Bed Usage, American Jails, July/Aug. 2010,

https://university.pretrial.org/HigherLogi

c/System/DownloadDocumentFile.ashx?D

ocumentFileKey=6e29707b-9568-c42a-b67

6-894c77ae7b7c&forceDialog=0 ........................... 19

Thomas H. Cohen & Brian A. Reaves, Bureau

of Justice Statistics, United States

Department of Justice, Pretrial Release of

Felony Defendants in State Court (Nov.

2007), http://www.bjs.gov/content/pub/pdf/

prfdsc.pdf ................................................................ 20

Conference of Chief Justices, Resolution 3

(adopted Jan. 30, 2013), https://ccj.ncsc.org/

~/media/Microsites/Files/CCJ/Resolutions/

01302013-pretrial-release-Endorsing-CO

SCA-Paper-EvidenceBased-Pretrial-Rel

ease.ashx ................................................................. 10

Council of Economic Advisers, Issue Brief,

Fines, Fees, and Bail (Dec. 2015) ....................... 21

Criminal Justice Policy Program at Harvard

Law School, Moving Beyond Money: A

Primer on Bail Reform (Oct. 2016) .. 15, 16, 17, 21

vi

Declaration of Ed Gonzalez, Sheriff-Elect for

Harris County, Texas, O’Donnell v. Harris

County, No. 16-cv-01414 (S.D. Tex. Nov.

22, 2016), ECF No. 96-1 ........................................ 11

Will Dobbie et al., The Effects of Pretrial

Detention on Conviction, Future Crime,

and

Employment:

Evidence

from

Randomly Assigned Judges, 108 Am.

Econ. Rev. 202 (2018) ............................................ 15

Georgia Department of Community Affairs,

Office of Research, County Jail Inmate

Population Report (Dec. 6, 2018),

https://www.dca.ga.gov/sites/default/files/j

ail_report_dec18.pdf ........................................ 18, 19

Mitchel N. Herian & Brian H. Bornstein,

Reducing Failure to Appear in Nebraska:

A Field Study, Nebraska Lawyer, Sept.

2010 .......................................................................... 20

Michael R. Jones, Pretrial Justice Institute,

Unsecured Bonds: The As Effective and

Most Efficient Pretrial Release Option

(2013) ....................................................................... 19

Christopher T. Lowenkamp & Marie

VanNostrand,

Arnold

Foundation,

Exploring the Impact of Supervision on

Pretrial Outcomes (2013) ..................................... 20

Christopher T. Lowenkamp et al., Arnold

Foundation, The Hidden Costs of Pretrial

Detention (2013) ..................................................... 20

vii

Christopher T. Lowenkamp et al., Arnold

Foundation, Investigating the Impact of

Pretrial

Detention

on

Sentencing

Outcomes (2013) ............................................... 16, 17

Todd D. Minton & Zhen Zeng, Bureau of

Justice

Statistics,

United

States

Department of Justice, Jail Inmates in

2015 (2016) .............................................................. 21

Model Code of Pre-Arraignment Procedure

(Am. Law Inst. 1975) ............................................. 10

Brian Montopoli, Is the U.S. Bail System

Unfair?, CBS News (Feb. 8, 2013) ...................... 15

National Ass’n of Counties, The American

County Platform and Resolutions 20162017,

http://www.naco.org/sites/default/

files/documents/2016-2017%20American

%20County%20Platform.pdf ................................ 10

National Sheriffs Ass’n, Resolution 2012-6,

National Sheriffs’ Association Supports &

Recognizes The Contribution Of Pretrial

Services Agencies To Enhance Public

Safety (2012) ........................................................... 11

National Symposium on Pretrial Justice,

Summary Report of Proceedings (2011) ............ 10

Margaret Noonan et al., United States

Department of Justice, Mortality in Local

Jails and State Prisons, 2000-2013 –

Statistical Tables (2015) ....................................... 16

viii

Mary T. Phillips, New York City Criminal

Justice Agency, Inc., A Decade of Bail

Research in New York City (Aug. 2012) 14, 16, 17

Nick Pinto, The Bail Trap, N.Y. Times, Aug.

13, 2015 .................................................................... 15

Pretrial Justice Institute, Guidelines for

Analyzing State and Local Pretrial Laws

(2017) ......................................................................... 2

Pretrial Justice Institute, Pretrial Justice:

How Much Does It Cost? (2017) .......................... 21

Pretrial Services Agency for the District of

Columbia,

Performance

Measures,

https://www.psa.gov/?q=data/performance

_measures (data as of June 30, 2015) .................. 20

Anne Rankin, The Effect of Pretrial Detention,

39 N.Y.U. L. Rev. 641 (1964) ............................... 16

Traci Schlesinger, Racial and Ethnic

Disparity in Pretrial Criminal Justice

Processing, 22 Just. Q. 170 (2005)........................ 22

The “Shock of Confinement”: The Grim

Reality of Suicide in Jail, NPR: All Things

Considered (July 27, 2015) .................................... 16

United States Census Bureau, QuickFacts:

Gordon County, Georgia, https://www.

census.gov/quickfacts/fact/table/gordoncou

ntygeorgia/PST045216 (last visited Jan. 25,

2019) ......................................................................... 18

ix

United States Census Bureau, QuickFacts:

United States, https://www.census.gov/

quickfacts/fact/table/US/HSG030210 (last

visited Jan. 25, 2019).............................................. 18

United States Government Accountability

Office,

GAO-15-26,

Alternatives

to

Detention: Improved Data Collection and

Analyses Needed to Better Assess Program

Effectiveness (2014) ............................................... 21

Amber Widgery, National Conference of State

Legislators, Guidance for Setting Release

Conditions (May 13, 2015) .................................... 11

1

INTEREST OF AMICUS CURIAE1

The American Bar Association (the “ABA”) is one of

the largest voluntary professional membership

organizations, and the leading organization of legal

professionals, in the United States. Its more than

400,000 members come from all fifty states, the District

of Columbia, and the United States territories, and

include prosecutors, public defenders, and private

defense counsel. Its membership includes attorneys in

law firms, corporations, nonprofit organizations, and

local, state, and federal governments. Members also

include judges, legislators, law professors, law students,

and non-lawyer associates in related fields.2

Since its founding in 1878, the ABA has worked to

protect the rights secured by the Constitution, including

the rights of criminal defendants under the Due Process

and Equal Protection Clauses. The ABA Standards for

Criminal Justice (the “Criminal Justice Standards”) is a

1

Pursuant to this Court’s Rule 37.6, counsel for amicus curiae

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than amicus

curiae, its members, or its counsel has made a monetary

contribution intended to fund the preparation or submission of this

brief. All parties have received timely notice of amicus curiae’s

intent to file and consented to the filing of this brief.

2

Neither this brief nor the decision to file it should be

interpreted to reflect the views of any judicial member of the ABA.

No member of the Judicial Division or judiciary participated in the

adoption or endorsement of the positions in this brief, nor was the

brief circulated to any member of the Judicial Division or judiciary

before filing.

2

comprehensive set of principles articulating the ABA’s

recommendations for fair and effective systems of

criminal justice, and reflects the legal profession’s

conclusions on the requirements for the proper

administration of justice and fairness in the criminal

justice system. Now in its Third Edition,3 the Criminal

Justice Standards were developed and revised by the

ABA Criminal Justice Section, working through broadly

representative task forces made up of prosecutors,

defense lawyers, judges, academics, and members of the

public, and then approved by the ABA House of

Delegates, the ABA’s policymaking body.

Courts have frequently looked to the Criminal

Justice Standards for guidance on the appropriate

balance between individual rights and public safety in

the field of criminal justice. See, e.g., Padilla v.

Kentucky, 559 U.S. 356, 366-67 (2010); Strickland v.

Washington, 466 U.S. 668, 688-89 (1984). In fact, the

Criminal Justice Standards have been either quoted or

cited in more than 120 U.S. Supreme Court opinions, 700

federal circuit court opinions, 2,400 state supreme court

opinions, and 2,100 law journal articles. Pretrial Justice

Institute, Guidelines for Analyzing State and Local

Pretrial Laws II-ii (2017).

3

The ABA Standards for Criminal Justice: Pretrial Release

(3d ed. 2007) are available at https://www.americanbar.org/

content/dam/aba/publications/criminal_justice_standards/pretrial_

release.authcheckdam.pdf

[hereinafter,

Pretrial

Release

Standards].

3

INTRODUCTION AND SUMMARY OF

ARGUMENT

The ABA, a foremost authority on the proper

functioning of the criminal justice system—along with a

growing number of other organizations and

jurisdictions—opposes money-bail systems that do not

adequately consider an individual’s ability to pay. The

ABA’s Criminal Justice Standards on pretrial release

(the “Pretrial Release Standards”) memorialize the

ABA’s exhaustive study of pretrial release and

detention systems designed to secure defendants’ rights

to a fair trial and the effective assistance of counsel,

ensure that persons accused of crimes appear for court

dates, and protect the community. As discussed below,

the ABA’s Pretrial Release Standards and a recent

resolution passed by its House of Delegates reflect the

ABA’s conclusion that, although there may be rare

circumstances in which monetary conditions of release

are necessary to ensure a defendant’s appearance,

money-bail requirements that fail to consider

defendants’ individual circumstances, especially their

ability to pay, should be abolished. Such money-bail

systems result in the systemic jailing of release-eligible

defendants solely because they cannot afford to

purchase their freedom, in violation of the Fourteenth

Amendment’s Due Process and Equal Protection

Clauses. In addition, they seriously impair the welfare

of the accused and their ability to mount a defense, and

provide little, if any, benefit to the public.

Ironically, these harms can fall disproportionately on

defendants who, like Petitioner, are charged with lowlevel offenses and, consequently, face a modest bail

4

amount. They still likely cannot afford their bail, but

their bail amount is often too small to secure a

commercial bondsman’s services.

Consistent with its well-established interest in bail

reform, the ABA submits this brief in support of

Petitioner’s petition for a writ of certiorari and

encourages the Court to examine the money-bail system

at issue in this case. The imposition of preset bail

amounts derived without regard to a defendant’s

financial and other circumstances, even for a preliminary

period of 48 hours, is an important issue worthy of this

Court’s consideration, given the practical and

constitutional harms that this practice inflicts. Under

our system of justice, the right of any individual to

liberty, and to effective defense against criminal

charges, should not depend on that person’s ability to

pay. The ABA’s Pretrial Release Standards provide

guidance on how jurisdictions can protect the

constitutional rights of the accused while advancing

their legitimate criminal justice interests.

The Eleventh Circuit’s opinion upholding the City of

Calhoun, Georgia’s money-bail schedule provides a

particularly appropriate vehicle to address the

constitutional problems with money bail.

Here,

Petitioner was arrested for a misdemeanor that could

not result in jail time. Yet because he was poor and could

not afford bail, he was jailed for days. He was, quite

plainly, deprived of liberty solely because of his indigent

status. Requiring an indigent defendant, like Petitioner,

to wait in jail for up to 48 hours before he or she receives

an individualized bail hearing—while those who can

afford bail are released immediately—violates both due

5

process and equal protection principles and significantly

harms presumptively innocent defendants in meaningful

and lasting ways. The ABA encourages the Court to

review the decision below to address these

constitutional violations.

ARGUMENT

“[T]he function of bail is limited,” and its fundamental

purpose is to ensure that a defendant will return to court

when necessary. Stack v. Boyle, 342 U.S. 1, 5 (1951). If

the defendant flees or otherwise fails to appear, he or she

forfeits the bail amount, creating an incentive to appear.

Thus, the central question presented by this case—and

by systems with fixed money-bail schedules more

generally—is whether a defendant who otherwise

qualifies for pretrial release can be incarcerated for days

merely because he or she lacks the wherewithal to pay a

preset amount of money that is not calibrated to ensure

the particular defendant’s appearance in court. Both

constitutional

imperatives

and

a

pragmatic

consideration of the harms wrought by unnecessary

pretrial detention counsel that the answer is no.

I.

The Court Should Follow the ABA’s Lead and

Reject Bail Systems That Fail to Consider

Adequately a Defendant’s Ability to Pay and

That Result in Unnecessary Pretrial

Detention.

The ABA has consistently advocated for alternatives

to money bail and pretrial detention, and has rejected

money-bail systems that fail to consider adequately a

defendant’s circumstances, including the ability to pay, a

position formally incorporated into its Pretrial Release

6

Standards and reinforced by a recent vote of the ABA

House of Delegates. The ABA is joined in its opposition

to fixed money-bail schedules by a wide array of

organizations and jurisdictions.

A.

The Current ABA Pretrial Release

Standards.

The ABA Criminal Justice Standards are the result

of research and analysis by the ABA over the last fifty

years. Ever since their adoption in 1968, the Criminal

Justice Standards have expressed the ABA’s general

opposition to money bail. See ABA Project on Standards

for Criminal Justice, Standards Relating to Pretrial

Release—Approved Draft, 1968; ABA Standards for

Criminal Justice, ch. 10, Pretrial Release at 10-5.4(d),

10.78-79 (2d ed. 1979).

The current Third Edition of the ABA’s Pretrial

Release Standards, adopted in 2007, recognize that

pretrial release conditions should be imposed only as

necessary to serve their legitimate purposes of ensuring

defendants’ reappearance and protecting the public;

pretrial release conditions should never be imposed to

punish or frighten the defendant, or to placate the

public’s opinion. Pretrial Release Standards at 10-5.3(c).

And, because a defendant’s ability to pay has no rational

connection to whether the defendant poses a danger to

the community, the Pretrial Release Standards state

that monetary release conditions should be used only to

ensure reappearance, not “to respond to concerns for

public safety.” Id. at 10-1.4(d). They also advise that

jurisdictions should impose monetary release conditions

only

after

considering

defendants’

individual

circumstances, and ensure that defendants’ finances

7

never prevent their release.

No release-eligible

defendant should remain incarcerated simply because he

or she cannot buy this freedom.

The Pretrial Release Standards offer several

guidelines in support of these overarching objectives:

First, the Pretrial Release Standards include a

presumption that money bail should rarely be used to

secure a defendant’s appearance in court. They urge

jurisdictions to adopt procedures designed to promote

the release of defendants on their own recognizance—

effectively, a promise to appear in court—or, when

necessary, on an unsecured bond. Id. at 10-1.4(a) & (c),

10-5.1(a).

Second, if release on personal recognizance would

pose a “substantial risk” that a person will not appear for

a court proceeding, endanger others’ safety, or imperil

the judicial system’s “integrity” (through, for example,

intimidation of a witness), the Pretrial Release

Standards still promote release, subject to the “least

restrictive” condition or conditions that will “reasonably

ensure” the person’s later reappearance and deter the

person from imperiling others or undermining the

judicial process’ integrity. Id. at 10-5.1(a)-(b), 10-5.2(a).

Third, the Pretrial Release Standards make secured

money bail a last resort when setting pretrial release

conditions, not the first. They permit the imposition of

“[f]inancial conditions other than unsecured bond . . .

only when no other less restrictive condition of release

will reasonably ensure the defendant’s appearance in

court.” Id. at 10-5.3(a); see also id. at 10-5.3(d) (providing

that judicial officer imposing financial conditions should

8

first consider an unsecured bond).

Fourth, the bail system must account for an

individual’s ability to pay. Id. at 10-5.3(a). Consistent

with the demands of due process, the Pretrial Release

Standards urge that “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.” Id. Critically, the ABA’s

Pretrial Release Standards provide that “the defendant

should in no instance be held by police longer than 24

hours without appearing before a judicial officer” to

make this individualized assessment. Id. at 10-4.1(b).

B.

Adopted ABA Resolution 112C.

Consistent with the Pretrial Release Standards, the

ABA House of Delegates also adopted a resolution in

2017, urging local jurisdictions to implement procedures

that favor pretrial release and prevent the pretrial

detention of presumptively innocent defendants who

cannot afford to purchase their liberty as their criminal

cases are being adjudicated. American Bar Association

House of Delegates, Resolution 112C (Aug. 14, 2017)

(adopted) (“Resolution”), https://www.americanbar.org/

content/dam/aba/images/abanews/2017%20Annual%20

Resolutions/112C.pdf. Specifically, the Resolution:

•

urges governments to adopt policies and

procedures favoring defendants’ release upon their

own recognizance or unsecured bond, and permitting

release on cash bail or secured bond in order to

assure defendants’ appearances only when “no other

conditions will suffice for that purpose”;

9

•

recommends that courts not impose

financial conditions of release that result in pretrial

detention “solely due to the defendant’s inability to

pay,” and that jurisdictions ban the use of bail

schedules that determine bail amounts based on the

offense charged without any “individualized,

evidence-based assessments” of a defendant’s

personal circumstances; and

•

states that a defendant may be held

without bail where public safety warrants the

defendant’s pretrial detention and no other pretrial

release conditions would suffice, so long as a court

articulates the reasons for the detention.

Id.

The Resolution was the culmination of a tremendous

amount of research and is accompanied by a detailed

report prepared by experts in the field, addressing the

state of the bail system since the ABA’s adoption of the

Pretrial Release Standards.

See ABA, Proposed

Resolution and Report (Aug. 2017) (“Report”)

http://www.americanbar.org/content/dam/aba/directori

es/policy/2017_am_112C.docx. The Report confirms

that, based on recent research, financial release

conditions are not only rarely necessary, but that they

have “adverse, and sometimes profoundly harmful,

effects.” Id. at 10. The Report also recognizes that

release conditions other than money bail are often as

effective, if not more effective, than money bail in

“‘reasonably ensur[ing] the defendant’s appearance in

court.’” Id. (quoting Pretrial Release Standards at 105.3(a)).

10

C.

Recognizing the Importance of This

Issue,

Other

Organizations

and

Jurisdictions Also Reject Money Bail.

Numerous organizations across the spectrum of the

criminal justice system have similarly rejected moneybail systems in favor of individualized pretrial release

assessments.4 For example, the U.S. Department of

Justice has recommended “[e]liminating the use of the

automatic, predetermined money bail.”

National

Symposium on Pretrial Justice, Summary Report of

Proceedings 39 (2011). Likewise, the National Sheriff’s

Association recognized that “a justice system relying

4

See, e.g., Am. Jail Ass’n, Resolutions of the American Jail

Association 40 (2017), https://www.americanjail.org/files/About

%20PDF/_AJA%20Resolutions%20-%20January%202017.pdf

(recognizing that pretrial supervision can be a safe and costeffective alternative); Nat’l Ass’n of Counties, The American

County Platform and Resolutions 2016-2017, 102 (July 25, 2016),

http://www.naco.org/sites/default/files/documents/2016-2017%20

American%20County%20Platform.pdf (recommending that states

and localities make greater use of non-financial pretrial release

options); Conference of Chief Justices, Resolution 3, at 2 (adopted

Jan.

30,

2013),

https://ccj.ncsc.org/~/media/Microsites/

Files/CCJ/Resolutions/01302013-pretrial-release-EndorsingCOSCA-Paper-EvidenceBased-Pretrial-Release.ashx (advocating

for the presumptive use of nonfinancial release conditions); Am.

Probation and Parole Ass’n, Resolution – Pretrial Supervision

(enacted June 2010), https://www.appa-net.org/eweb/Dynamic

page.aspx?webcode=IB_Resolution&wps_key=3fa8c704-5ebc-416

3-9be8-ca48a106a259 (recognizing pretrial supervision as a safe and

cost-effective alternative to jail for many defendants awaiting trial);

Model Code of Pre-Arraignment Procedure § 310.1 (Am. Law Inst.

1975) (providing that, if the first appearance does not occur within

a 24-hour period following arrest, the defendant must be released

on citation or bail).

11

heavily on financial conditions of release at the pretrial

stage is inconsistent with a fair and efficient justice

system.”

Nat’l Sheriffs Ass’n, Resolution 2012-6,

National Sheriffs’ Association Supports & Recognizes

The Contribution Of Pretrial Services Agencies To

Enhance Public Safety (2012).

Several state and local governments have similarly

abandoned their money-bail schemes. As of 2015, 21

states expressly provided a presumption in favor of

releasing defendants on personal recognizance or an

unsecured bond, and 16 required courts to impose the

least-restrictive condition on pretrial release. See

Amber Widgery, Nat’l Conference of State Legislators,

Guidance for Setting Release Conditions (May 13, 2015);

see also Declaration of Ed Gonzalez, Sheriff-Elect for

Harris County, Texas ¶ 5, O’Donnell v. Harris Cty., No.

16-cv-01414 (S.D. Tex. Nov. 22, 2016), ECF No. 96-1

(stating that “[a] person’s access to money should not be

a determining factor in whether he or she is jailed or

released after arrest and pending trial”). Several states

and local jurisdictions have adopted or are also

considering alternatives to money bail such as

individualized,

fact-sensitive

tools

evaluating

appropriate conditions of pretrial release. See, e.g.,

California Money Bail Reform Act, 2018 Cal. Legis.

Serv. Ch. 244 (S.B. 10).5

5

See also Holland v. Rosen, 895 F.3d 272, 279-80 (3d Cir.)

(observing that New Jersey’s bail system has shifted away from one

that “relied heavily on the use of monetary bail,” to one that

primarily relies “upon pretrial release by non-monetary means to

reasonably assure an eligible defendant’s appearance in court when

12

II.

This Court Should Review the Decision Below

Because a Money-Bail System That Deprives

Defendants of Their Liberty Without

Individualized Assessments of Their Personal

and Financial Circumstances Violates the

Constitution.

The ABA and other entities oppose money bail

because incarcerating an individual and depriving him or

her of liberty solely on the basis of his or her indigence

violates essential rights to due process and equal

protection. This Court has emphasized that depriving a

person of “conditional freedom simply because, through

no fault of his own, he cannot pay . . . would be contrary

to the fundamental fairness required by the Fourteenth

Amendment.” Bearden v. Georgia, 461 U.S. 660, 672-73

(1983). Consistent with this basic principle, the Court

has rejected a number of government practices in a wide

range of contexts for “punishing a person for his

poverty.” Id. at 671 (revocation of probation for inability

to pay fine).6

An individual’s liberty interest is especially strong in

the pretrial context, when the presumption of innocence

is at its peak. “In our society liberty is the norm, and

detention prior to trial or without trial is the carefully

required” (internal quotation marks omitted)), cert. denied, 139 S.

Ct. 440 (2018).

6

See also Tate v. Short, 401 U.S. 395, 396-98 (1971)

(incarceration for inability to pay traffic fines); Williams v. Illinois,

399 U.S. 235, 240-41 (1970) (incarceration beyond statutory

maximum due to inability to pay fine); Smith v. Bennett, 365 U.S.

708, 711 (1961) (inability to pay fee to file petition for writ of habeas

corpus).

13

limited exception.” United States v. Salerno, 481 U.S.

739, 755 (1987). Before overriding a defendant’s “strong

interest in liberty” prior to trial, jurisdictions must

recognize the “importance and fundamental nature” of

the right to pretrial release and must carefully consider

whether the government has advanced “sufficiently

weighty” interests to the contrary. Id. at 750-51.

Particularly when a defendant, like Petitioner, has been

charged with a crime that carries no penalty of jail time,

this calculus should weigh even more heavily in favor of

the defendant’s “strong” liberty interest. Money-bail

systems that automatically impose financial conditions

of release without examining a defendant’s individual

circumstances and that incarcerate release-eligible

persons based on their inability to buy their freedom, do

not satisfy this standard.

III.

This Issue Warrants the Court’s Consideration

Because Money Bail Harms Criminal

Defendants and Does Not Serve the Fair and

Proper Administration of Justice.

Decades of research and study also show that money

bail harms defendants, with little offsetting public

benefit. Given the large population of pretrial detainees

throughout the United States, the money-bail system

poses a harm to hundreds of thousands of criminal

defendants and to the criminal justice systems of

numerous states and localities across the country. This

Court should grant the petition to remedy these

nationwide constitutional violations.

14

A.

Money Bail Unfairly Harms Criminal

Defendants and Undermines the

Criminal Justice System.

Extensive evidence reflects that money bail

adversely affects criminal defendants and their families

in numerous ways and undermines the fairness,

effectiveness, and credibility of our criminal justice

system.

First, money-bail systems result in pretrial detention

for large numbers of defendants for no reason other than

their inability to pay. This includes Petitioner, who was

detained for days solely because he could not afford bail.

In theory, money bail exists to facilitate a defendant’s

release pending trial; any defendant for whom bail is set

is, by definition, release-eligible.

Yet for many

defendants, such as Petitioner, there is no option other

than to wait in jail. Defendants and their families are

frequently unable to afford a fixed monetary bond or a

nonrefundable 10% or 20% commercial surety fee. Data

show that many defendants are unable to meet even

relatively small bond amounts. In New York City, for

example, only 26% of criminal defendants made bail set

at less than $500, and only 7% made bail set at $5,000 (the

median amount for a felony). Mary T. Phillips, New

York City Criminal Justice Agency, Inc., A Decade of

Bail Research in New York City, 51 tbl. 7 (Aug. 2012).

According to a 2012 study of New Jersey county jails,

“38.5% of the total jail population had the option to post

bail but were in custody due only to their inability to

meet the terms of bail.” Holland, 895 F.3d at 279. That

same study found that 12% of inmates were in custody

because they could not pay bail of $2,500 or less. Id.

15

Even for those defendants who are ultimately able to

secure the necessary resources, the process of doing so

may take days or weeks.

For that matter, a commercial surety is not always

an option; many bail bondsmen will not even offer small

bonds. This means that, ironically, indigent defendants

who are charged with the least serious offenses may be

more likely to stay in jail. See Brian Montopoli, Is the

U.S. Bail System Unfair?, CBS News (Feb. 8, 2013).

Second, the consequences of pretrial detention for

indigent defendants are profound. Even a few days in

jail can disrupt a defendant’s life, leading to long-term

negative consequences. Pretrial detainees cannot work

or earn income while incarcerated and may lose their

jobs while waiting for a hearing, making it even more

difficult to make bail. See Criminal Justice Policy

Program at Harvard Law School, Moving Beyond

Money: A Primer on Bail Reform 7 (Oct. 2016) (“Moving

Beyond Money”); Barker v. Wingo, 407 U.S. 514, 532-33

(1972). Detainees who live in shelters may lose housing

for missing curfews or for prolonged absences. See Nick

Pinto, The Bail Trap, N.Y. Times, Aug. 13, 2015; Will

Dobbie et al., The Effects of Pretrial Detention on

Conviction, Future Crime, and Employment: Evidence

from Randomly Assigned Judges, 108 Am. Econ. Rev.

202 (2018).

Given indigent defendants’ alreadyprecarious financial situation, pretrial detention may

trigger a debilitating downward spiral, even if they are

ultimately acquitted. And those negative consequences

are not limited to just the detainees: children may be left

unsupervised, and elderly or sick relatives may have no

one to take care of them while a defendant is detained

16

for not making bail.

Detention can have additional, non-pecuniary ill

effects. Incarcerated persons are more likely to be

sexually victimized, contract infectious diseases, and be

exposed to unsafe and unsanitary living conditions. See

Allen J. Beck et al., Bureau of Justice Statistics, U.S.

Dep’t of Justice, Sexual Victimization in Prisons and

Jails Reported by Inmates, 2011-12, at 9 (2013); Moving

Beyond Money, at 6-7. Alarmingly, pretrial detainees

also commit four-fifths of jail suicides, a risk that is

highest during the first seven days of incarceration,

Margaret Noonan et al., U.S. Dep’t of Justice, Mortality

in Local Jails and State Prisons, 2000-2013 – Statistical

Tables 3, 10, 12 (2015), when detainees are experiencing

the initial “shock of confinement,” The “Shock of

Confinement”: The Grim Reality of Suicide in Jail,

NPR: All Things Considered (July 27, 2015).

Third, needless pretrial detention frustrates

detainees’ legal rights and leads to inequitable outcomes,

undermining the fairness, efficacy, and credibility of the

criminal justice system. For more than fifty years,

researchers have found that pretrial detention leads to

worse case outcomes for indigent defendants. See

generally Anne Rankin, The Effect of Pretrial

Detention, 39 N.Y.U. L. Rev. 641 (1964). Compared to

those released before trial, pretrial detainees are more

likely to be convicted, more likely to receive jail or prison

sentences, and, when convicted, are more likely to

receive a longer jail or prison sentence. Phillips, supra

at 115-21; Christopher T. Lowenkamp et al., Arnold

Found., Investigating the Impact of Pretrial Detention

on Sentencing Outcomes (2013) (“Investigating the

17

Impact”).

These consequences are particularly perverse

because, as discussed, they may weigh heaviest on the

lowest-risk defendants, such as Petitioner, who was

arrested for the misdemeanor offense of walking under

the influence. One study found that low-risk defendants

detained for the entire pretrial period are more than five

times more likely to be sentenced to jail compared to

low-risk defendants released at some point before trial,

and nearly four times more likely to be sentenced to

prison—with sentences that, on average, are nearly

three times longer. Investigating the Impact at 11.

There are many reasons for these disparate

outcomes. Pretrial detention impairs detainees’ ability

to prepare their cases, including their “ability to gather

evidence, contact witnesses, or otherwise prepare [a]

defense.” Barker, 407 U.S. at 533. When it comes to

sentencing, pretrial confinement prevents defendants

from demonstrating their ability to comply with the law

and contribute to society, including through

employment, schooling, rehabilitation, and family

obligations. Phillips, supra at 118. Furthermore, the

prospect of prolonged pretrial detention may encourage

guilty pleas from defendants, even those who are

innocent or have meritorious defenses to the charges.

Moving Beyond Money, at 7. In many cases, the

anticipated length of pretrial detention can exceed the

length of an actual post-conviction sentence; for some

detainees charged with minor crimes, such as Petitioner,

post-conviction incarceration is not even an option. See

Stephanos Bibas, Plea Bargaining Outside the Shadow

of Trial, 117 Harv. L. Rev. 2463, 2492 (2004) (noting that

18

defendants charged with misdemeanors or lesser

felonies are more likely to be incarcerated before, rather

than after, conviction—exactly like Petitioner was).

Thus, when given the choice between immediate release

and trial after prolonged detention, many defendants,

including innocent defendants, reasonably decide to

plead guilty. Robert C. Boruchowitz et al., Nat’l Ass’n

of Criminal Defense Lawyers, Minor Crimes, Massive

Waste 32-33 (Apr. 2009).

The adverse consequences described above

necessarily affect the City of Calhoun, where pretrial

detainees comprise a significant portion of the total

inmates in Gordon County jails, and where per-capita

income is $21,208 (approximately one-third less of the

national per-capita income of $31,177).7 In December

2018, 60% of all inmates in Gordon County jails were

detained awaiting trial—a greater percentage of the

total inmate population than both those serving a county

sentence (32%) and those sentenced to state prison (7%).

Georgia Department of Community Affairs, Office of

Research, County Jail Inmate Population Report, at 9

(Dec. 6, 2018), https://www.dca.ga.gov/sites/default/

files/jail_report_dec18.pdf.

The numbers are even starker when considering

Georgia as a whole: 64% of all inmates in county jails

across the state in 2018 were imprisoned while awaiting

7

See U.S. Census Bureau, QuickFacts: Gordon County,

Georgia,

https://www.census.gov/quickfacts/fact/table/gordon

countygeorgia/PST045216 (last visited Jan. 25, 2019); U.S. Census

Bureau, QuickFacts: United States, https://www.census.gov/quick

facts/fact/table/US/HSG030210 (last visited Jan. 25, 2019).

19

trial. Id at 2. In Fulton County, Georgia (located near

Calhoun), defendants who could not afford to post money

bail averaged a staggering 101.4 days in pretrial

detention—over eight times the average amount of time

spent in pretrial detention by defendants eventually

released on money bail (11.4 days) or on nonfinancial

conditions of release (12.5 days). John Clark, The Impact

of Money Bail on Jail Bed Usage, American Jails,

July/Aug. 2010, 50-51, https://university.pretrial.org/

HigherLogic/System/DownloadDocumentFile.ashx?Do

cumentFileKey=6e29707b-9568-c42a-b676-894c77ae7b7

c&forceDialog=0.

B.

Money Bail That Results in Pretrial,

Wealth-Based Incarceration Does Not

Advance the Interests of Justice.

For all of its costs to indigent defendants, money

bail—particularly when imposed without regard to a

defendant’s individual circumstances—often fails to

advance the interests of the pretrial release system and

imposes substantial negative externalities.

First, the available evidence indicates that money

bail is rarely necessary to ensure defendants’ later

appearance in court, the principal motivation for bail in

the first place. See Pretrial Release Standards at 10-1.1.

Non-high-risk defendants released on unsecured bonds

reappeared for court dates at rates slightly higher than

those posting secured bonds. See Michael R. Jones,

Pretrial Justice Institute, Unsecured Bonds: The As

Effective and Most Efficient Pretrial Release Option 11

(2013). For example, the District of Columbia does not

use money bail and maintains appearance rates for

released defendants of 90%, which is higher than the

20

national average of less than 80%. Compare Pretrial

Services Agency for the District of Columbia,

Performance Measures, https://www.psa.gov/?q=data/

performance_measures (data as of June 30, 2015), with

Thomas H. Cohen & Brian A. Reaves, Bureau of Justice

Statistics, U.S. Dep’t of Justice, Pretrial Release of

Felony Defendants in State Court 8 (Nov. 2007),

http://www.bjs.gov/content/pub/pdf/prfdsc.pdf.

Furthermore, research shows that non-financial

approaches, such as supervised release or basic

reminders of upcoming court dates, result in significant

increases in appearance rates by pretrial defendants.

See Christopher T. Lowenkamp & Marie VanNostrand,

Arnold Found., Exploring the Impact of Supervision on

Pretrial Outcomes 17 (2013); Mitchel N. Herian & Brian

H. Bornstein, Reducing Failure to Appear in Nebraska:

A Field Study, Nebraska Lawyer, Sept. 2010, at 11, 1213.

Second, even though the rationale behind money bail

is not to secure public safety (it is meant to ensure

defendants’ appearance in court), there is no evidence

that money-bail systems improve public safety, in any

event. In fact, the opposite is true. Low- and moderaterisk people who are detained for more than a day are

significantly more likely to engage in a future crime, as

compared with low- and moderate-risk defendants who

are not. Christopher T. Lowenkamp et al., Arnold

Found., The Hidden Costs of Pretrial Detention 17-18

(2013). And because innocent people plead guilty to

relatively low-level crimes in order to secure release,

community safety suffers because any underlying

crimes are never fully investigated and the actual

21

culprits remain free. See Moving Beyond Money, at 7.

Third, despite the minimal benefit, excessive use of

money bail imposes heavy costs on society. Needless

pretrial incarceration bloats an already swollen criminal

justice population and costs taxpayers an estimated $9

billion per year. Todd D. Minton & Zhen Zeng, Bureau

of Justice Statistics, U.S. Dep’t of Justice, Jail Inmates

in 2015 4-5 (2016); Allen J. Beck, Bureau of Justice

Statistics, U.S. Dep’t of Justice, Profile of Jail Inmates,

1989 2 tbl. 1 (1991); Council of Economic Advisers, Issue

Brief, Fines, Fees, and Bail 8 (Dec. 2015) (estimating the

average daily cost per inmate at between $50 to $500).

This is particularly unpalatable where the legislature

has decided that there should be no jail time for the

underlying offense, as with Petitioner’s arrest here.

Pretrial detention’s superfluous costs are particularly

staggering when compared to the modest price of

supervised release programs, estimated at only $10 per

individual per day. U.S. Gov’t Accountability Office,

GAO-15-26, Alternatives to Detention: Improved Data

Collection and Analyses Needed to Better Assess

Program Effectiveness 9-12, 18-19 (2014); see also

Pretrial Just. Inst., Pretrial Justice: How Much Does It

Cost? 1-7 (2017).

Finally, because poverty strongly correlates with

race, cash bail tends to result in the pretrial

incarceration of racial minority groups, exacerbating

pre-existing racial disparities in the criminal justice

system. Moving Beyond Money, at 7. For example, a

study of defendants accused of drug crimes found that

Latinos and Blacks were half as likely to make bail as

Whites with the same bail amounts and legal

22

characteristics. Traci Schlesinger, Racial and Ethnic

Disparity in Pretrial Criminal Justice Processing, 22

Just. Q. 170, 183-84 (2005). The study’s authors found

that “Latino defendants are 67 percent more likely to be

denied bail, 29 percent less likely to be granted a nonfinancial release, and receive bails that are 26 percent

higher,” and, most alarmingly for this Court’s purposes,

concluded that “ethnic disparity is most notable during

the decision to grant a non-financial release.” Id. at 18384, 186. If Black and Latino defendants are less able to

post bail, or more likely to receive higher bail amounts

or be denied bail altogether, they are more likely to

suffer the adverse consequences of pretrial confinement

described above.

For these reasons, wealth-based bail schemes impose

substantial public costs, deviating from the ABA’s policy

of “eliminat[ing] unnecessary correctional expenditures,

enhanc[ing] cost effectiveness, and promot[ing] justice.”

Report at 1.

IV.

The

Decision

Below

Illustrates

the

Constitutional Problems with Money-Bail

Schedules and Warrants Review.

This case offers a particularly appropriate vehicle for

addressing the constitutionality of money-bail systems

that result in substantial periods of poverty-based,

pretrial incarceration. The City of Calhoun’s application

of a fixed money-bail schedule through its Standing Bail

Order—which results in the detention of individuals who

cannot afford to post bail and forces them to wait up to

two days for an individualized bail hearing—falls far

short of ABA guidelines and violates the Equal

Protection and Due Process Clauses. To be sure,

23

Calhoun’s bail schedule permitted the deprivation of

Petitioner’s pre-trial liberty for multiple days, even

though he faced no jail time if convicted, a stark

reflection of the harms that inflexible money-bail

systems perpetuate on indigent defendants.

The

Eleventh Circuit incorrectly concluded that this moneybail system comports with constitutional requirements.

Because “the function of bail is limited,” it should be

set using “standards relevant to the purpose of assuring

the presence of that defendant,” including “the financial

ability of the defendant to give bail.” Stack, 342 U.S. at

5 & n.3 (citation omitted); see also Hernandez v.

Sessions, 872 F.3d 976, 991 (9th Cir. 2017) (concluding

that “due process likely requires consideration of

financial circumstances and alternative conditions of

release”).

Indeed, the City of Calhoun’s stated

“foremost consideration” when establishing bail is “the

probability that the accused, if free, will appear at

trial[.]” Standing Bail Order, Pet. App. 80a.

The City of Calhoun’s money-bail schedule is

untethered to this foundational goal, which it has

expressly adopted, of ensuring a defendant’s

appearance. The City’s money-bail schedule does not

consider an individual’s particular finances or

alternative conditions of release capable of compelling

the defendant’s presence in court (or even provide a

reasoned explanation for the varying bail amounts

imposed). As the District Court found, the Standing Bail

Order assesses a blanket bail amount corresponding

solely to the offense charged, subjecting indigent

defendants—like Petitioner—to immediate, and dayslong, detention merely because they lack the financial

24

resources to pay this arbitrary amount, while their

better-heeled peers who are otherwise identically

situated can avoid pretrial detention altogether. See

Pet. App. 70a-71a. In this way, the City’s money-bail

system impermissibly “punish[es] a person for his

poverty” in violation of due process and equal protection

principles. See Bearden, 461 U.S. at 671.

The Eleventh Circuit incorrectly found this policy to

be constitutionally sufficient, in part, because the City of

Calhoun requires defendants to receive an

individualized bail hearing or be released within 48

hours of arrest. Pet. App. 3a-4a, 31a-34a & nn.12-13.

However, this provision permitting a defendant who

is unable to purchase immediate release an opportunity

to challenge the bail assessment within 48 hours

following arrest does not remedy the constitutional

deficiencies in the City of Calhoun’s system. The City’s

use of a uniform money-bail schedule both avoids the

necessary inquiry into a defendant’s financial

circumstances at the outset and inevitably ensures that

alternative conditions of release are never considered as

a primary option. Moreover, as Judge Martin recognized

in dissent, 48 hours of incarceration is “surely” a

“deprivation of liberty.” Id. at 49a-50a (Martin, J.,

dissenting). “[B]eing jailed for 48 hours” results in “very

real consequences for detained indigents,” id. at 50a,

many of which are described in Part III, supra.

Based on its extensive research of the negative

consequences attendant to pretrial detention and its

experience regarding the capabilities of local courts, the

ABA has determined that “[a] defendant should in no

instance be held by police longer than 24 hours without

25

appearing before a judicial officer” for an individualized

bail hearing. Pretrial Release Standards at 10-4.1(b).

Holding presumptively innocent defendants in jail for

double that period—for no reason other than their

inability to pay—harmfully and unnecessarily delays the

administration of justice and violates the Constitution.

In this case, for instance, it would have been neither

difficult nor time consuming for a court to determine

within 24 hours of arrest that Petitioner—who is

mentally disabled, unemployed, and without other

assets—could not afford to post bail of $160, which

represented approximately 30% of his total monthly

income of $530 in Social Security disability payments.

See Walker v. City of Calhoun, No. 15-CV-0170-HLM,

2016 WL 361612, at *3 (N.D. Ga. Jan. 28, 2016). That the

City of Calhoun permits defendants like Petitioner to

languish in jail for up to two days before any such

individualized assessment needs to be made highlights

the very real dangers posed by money-bail systems. The

Eleventh Circuit’s determination that the City is

entitled to perpetuate such a system cannot pass

constitutional muster.

26

CONCLUSION

This Court should grant the petition and reverse the

Eleventh Circuit’s decision.

Respectfully submitted,

MATTHEW S. HELLMAN

DAVID B. DIESENHOUSE

ANDREW B. CHERRY

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

mhellman@jenner.com

ROBERT M. CARLSON

Counsel of Record

AMERICAN BAR ASSOCIATION

321 North Clark Street

Chicago, IL 60654

(312) 988-5000

abapresident@americanbar.org