Petition for Writ of Certiorari — Bradley Hester, Petitioner v. Matthew Gentry

No. 22IN THE

Supreme Court of the United States

BRADLEY HESTER,

on behalf of himself and others similarly situated,

Petitioner,

v.

MATTHEW GENTRY,

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

KATHERINE HUBBARD

CIVIL RIGHTS CORPS

1601 Connecticut Ave.

NW, Ste. 800

Washington, DC 20009

SETH P. WAXMAN

Counsel of Record

DANIEL S. VOLCHOK

JANE E. KESSNER

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave. NW

Washington, DC 20037

(202) 663-6000

seth.waxman@wilmerhale.com

ADDITIONAL COUNSEL LISTED ON INSIDE COVER

MICAH WEST

KIRSTEN ANDERSON

SOUTHERN POVERTY

LAW CENTER

400 Washington Ave.

Montgomery, AL 36130

BRANDON BUSKEY

AMERICAN CIVIL

LIBERTIES UNION

CRIMINAL LAW

REFORM PROJECT

125 Broad St.

New York, NY 10004

LATISHA GOTELL FAULKS

AMERICAN CIVIL LIBERTIES

UNION OF ALABAMA

P.O. Box 6179

Montgomery, AL 36106

QUESTION PRESENTED

Whether the Due Process Clause protects a fundamental right to pretrial liberty that prevents states from

depriving a presumptively innocent person of physical

liberty pending a criminal trial unless a court finds that

the deprivation is necessary to protect public safety

and/or reasonably assure the person’s appearance at future court proceedings.

(i)

PARTIES TO THE PROCEEDINGS

Petitioner, plaintiff-appellee below, is Bradley Hester, on behalf of himself and others similarly situated.

Respondent, defendant-appellant below, is Matthew

Gentry, Sheriff of Cullman County, Alabama, in his official and individual capacity.

Other defendants-appellants below were Amy

Black, in her official capacity as a magistrate; Lisa

McSwain, in her official capacity as a magistrate; Judge

J. Chad Floyd; and Judge Rusty Turner. The court of

appeals dismissed these defendants’ appeal for lack of

appellate jurisdiction.

(ii)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................... i

PARTIES TO THE PROCEEDINGS ............................ ii

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

INTRODUCTION .............................................................. 1

OPINIONS BELOW .......................................................... 5

JURISDICTION ................................................................. 5

CONSTITUTIONAL PROVISIONS

INVOLVED ................................................................. 5

STATEMENT ..................................................................... 5

A. Historical And Modern Bail Practice ................. 5

B. Hester’s Arrest And Detention ........................... 9

C. District Court Proceedings ................................ 10

D. Decision Below ..................................................... 15

REASONS FOR GRANTING THE PETITION........ 17

I.

THE DECISION BELOW IS WRONG ............................ 17

A. Cullman County’s Bail Practices Violate

The Substantive Due Process Right To

Pretrial Liberty .................................................. 18

1.

Salerno and Foucha Establish That

Substantive Due Process Bars Pretrial

Detention Absent A Finding That No

Alternative To Detention Will Serve

The Government’s Interest ....................... 18

(iii)

iv

TABLE OF CONTENTS—Continued

2.

Page

Cullman County’s Actual Bail Practices

(Pre- And Post-SBO) Violate The Right

To Pretrial Liberty ..................................... 20

B. The Eleventh Circuit’s Reasons For

Reversing The Preliminary Injunction

Are Infirm............................................................ 23

1.

Facial Challenge .......................................... 23

2.

Right To Pretrial Liberty .......................... 26

II. THE DECISION BELOW CONFLICTS WITH OTHER

COURTS’ CASES ........................................................... 30

III. THE QUESTION PRESENTED IS RECURRING

AND IMPORTANT ......................................................... 32

CONCLUSION ................................................................. 36

v

TABLE OF AUTHORITIES

CASES

Page(s)

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) ........24-25

Anderson v. City of Bessemer City, 470 U.S.

564 (1985) ..................................................................... 25

Barker v. Wingo, 407 U.S. 514 (1972) ...................... 32, 33

Bearden v. Georgia, 461 U.S. 660 (1983) ........................ 29

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

(Mass. 2017) ................................................................. 31

Caterpillar Inc. v. Williams, 482 U.S. 386

(1987) ............................................................................ 24

Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985) ..................................................... 35

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

44 (1991) ....................................................................... 25

Curry v. Yachera, 835 F.3d 373 (3d Cir. 2016) .............. 32

Foucha v. Louisiana, 504 U.S. 71 (1992)... 4, 18, 19, 23, 27

Gerstein v. Pugh, 420 U.S. 103 (1975) ....................... 25, 32

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ....................... 18

Holmes Group, Inc. v. Vornado Air

Circulation Systems, Inc., 535 U.S. 826

(2002) ............................................................................ 24

In re Humphrey, 482 P.3d 1008 (Cal. 2021) ................... 30

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

(9th Cir. 2014)........................................................ 30, 32

vi

TABLE OF AUTHORITIES—Continued

Page(s)

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

1052 (S.D. Tex. 2017) ........................ 7, 8, 19, 27, 33, 34

ODonnell v. Harris County, 892 F.3d 149

(5th Cir. 2018)........................................................ 32, 34

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

1978) ............................................................................. 31

Reno v. Flores, 507 U.S. 292 (1993) .......................... 19, 27

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

1897 (2018) ................................................................... 34

Sistrunk v. Lyons, 646 F.2d 64 (3d Cir. 1981) ................. 7

Sprint Communications, Inc. v. Jacobs,

571 U.S. 69 (2013) ....................................................... 24

Stack v. Boyle, 342 U.S. 1 (1951) ....................................... 7

State v. Brown, 338 P.3d 1276 (N.M. 2014) ............ 6, 7, 20

State v. Wein, 417 P.3d 787 (Ariz. 2018) ......................... 31

United States v. Leathers, 412 F.2d 169

(D.C. Cir. 1969) ........................................................... 20

United States v. Mantecon-Zayas, 949 F.2d 548

(1st Cir. 1991) .........................................................19-20

United States v. Salerno, 481 U.S. 739

(1987) .......................... 3, 4, 16, 18, 19, 20, 21, 23, 27, 30

Valdez-Jimenez v. Eighth Judicial District

Court, 460 P.3d 976 (Nev. 2020) ............................... 31

Williams v. Illinois, 399 U.S. 235 (1970) ....................... 28

Younger v. Harris, 401 U.S. 37 (1971) ............................ 15

Zadvydas v. Davis, 533 U.S. 678 (2001) ......................... 18

vii

TABLE OF AUTHORITIES—Continued

Page(s)

CONSTITUTIONS, STATUTES, AND RULES

U.S. Const. XIV amend. ..................................................... 5

18 U.S.C. §3142 .................................................................... 8

28 U.S.C. §1254 .................................................................... 5

Judiciary Act of 1789, 1 Stat. 73 ........................................ 6

Alabama Code

§15-13-102 ................................................................ 9, 28

§15-13-111 ...................................................................... 9

Alabama Rule of Criminal Procedure

Rule 4.4 .......................................................................... 9

Rule 7.2 ........................................................................ 12

OTHER AUTHORITIES

Baughman, Shima B., The Bail Book: A

Comprehensive Look at Bail in America’s

Criminal Justice System (2018) ................................ 8

4 Blackstone, William, Commentaries on the

Laws of England (1770) .............................................. 6

1 Chitty, Joseph, A Practical Treatise on the

Criminal Law (1819) ................................................... 7

Collateral Costs: Incarceration’s Effect on

Economic Mobility, The Pew Charitable

Trusts (2010), https://www.pewtrusts.org/

~/media/legacy/uploadedfiles/pcs_assets/

2010/collateralcosts1pdf.pdf ...................................... 33

viii

TABLE OF AUTHORITIES—Continued

Page(s)

D’Abruzzo, Diana, The Harmful Ripples of

Pretrial Detention, Arnold Ventures

(Mar. 24, 2022), https://www.arnold

ventures.org/stories/the-harmful-ripplesof-pretrial-detention .................................................. 34

Foote, Caleb, The Coming Constitutional

Crisis in Bail I, 113 U. Pa. L. Rev. 959

(1965) .............................................................................. 6

Heaton, Paul, et al., The Downstream

Consequences of Misdemeanor Pretrial

Detention, 69 Stan. L. Rev. 711 (2017) .............. 33, 34

Hegreness, Matthew J., America’s

Fundamental and Vanishing Right to

Bail, 55 Ariz. L. Rev. 909 (2013) ................................ 7

Magna Carta,

ch. 30 (1216) ................................................................... 6

ch. 39 (1215) ................................................................... 6

Maruschak, Laura M., et al., Medical Problems

of State and Federal Prisoners and Jail

Inmates, 2011-12, Bureau of Justice

Statistics (rev. Oct. 4, 2016), https://

bjs.ojp.gov/content/pub/pdf/mpsfpji

1112.pdf ........................................................................ 33

National Institute of Corrections,

Fundamentals of Bail: A Resource Guide

for Pretrial Practitioners and a

Framework for American Pretrial Reform

(Sept. 2014), https://s3.amazonaws.com/

static.nicic.gov/Library/028360.pdf............................ 8

ix

TABLE OF AUTHORITIES—Continued

Page(s)

Schnacke, Timothy R., A Brief History of Bail,

57 Judges’ J. 4 (2018) .................................................... 8

Stevenson, Megan T., Distortion of Justice:

How the Inability to Pay Bail Affects Case

Outcomes, 34 J. Law Econ. & Org. 511

(2018) ............................................................................ 33

Wiseman, Samuel R., Pretrial Detention and

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

1334 (2014) ................................................................... 35

Zeng, Zhen, Jail Inmates in 2021, Bureau of

Justice Statistics (Dec. 2022), https://

bjs.ojp.gov/sites/g/files/xyckuh236/files/

media/document/ji21st.pdf ........................................ 32

IN THE

Supreme Court of the United States

No. 22BRADLEY HESTER,

on behalf of himself and other similarly situated,

Petitioner,

v.

MATTHEW GENTRY,

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

Bradley Hester 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.

INTRODUCTION

Over the last fifteen or so years, lawsuits have been

filed around the country challenging bail practices in

various jurisdictions (here, Cullman County, Alabama).

More specifically, these lawsuits have challenged the

constitutionality of using “secured-money bail”—meaning an upfront payment is required for release—to detain people in jail while they await trial on charges of

which they are presumed innocent. The bail systems at

2

issue in these cases deprive people of pretrial liberty

without any court finding that alternatives to detention

could not reasonably ensure public safety and prevent

flight, such that detention is necessary to serve a government interest. Indeed, in Cullman County, anyone

arrested who cannot make an upfront cash payment—

typically at least several hundred dollars, and often several thousand—is detained in jail for weeks before having an adversarial hearing, i.e., before having any opportunity to be heard on whether pretrial detention is in fact

necessary.

Federal and state appellate courts hearing these

lawsuits have divided over the constitutionality of the

challenged systems. See infra pp.30-31. Some courts

have held that due process protects a fundamental right

to pretrial liberty that prohibits states from detaining

people pretrial unless a court finds—after providing adequate procedural protections, such as an adversarial

hearing at which a person has a meaningful right to be

heard—that the detention is necessary to serve a government interest. A divided panel of the Eleventh Circuit, by contrast, held here that it does not violate due

process for states to lock presumptively innocent people

in cells for days, weeks, months, or years even if doing

so is not necessary to protect public safety or to prevent

flight, and even if procedures to protect against erroneous deprivations of pretrial liberty have not been provided. In fact, the Eleventh Circuit flatly held that

“[p]retrial detainees have no fundamental right to pretrial release.” App.55a.

Certiorari is warranted to resolve this entrenched

division of authority. The question presented arises frequently, and the question is extremely important. That

is both because the right to physical freedom is one of

3

our most precious liberties and because pretrial detention inflicts grievous harms, including:

•

prolonged separation from spouses, parents,

children, and other family;

•

loss of employment, housing, and medical care;

•

exposure to violence and disease in jail;

•

interference with religious practices;

•

guilty pleas coerced—even from the innocent—

because pleading often means immediate release

whereas requiring the government to prove its

charges at trial means spending weeks, months,

or years in jail; and

•

higher conviction rates for those who go to trial

(because pretrial detention hampers individuals’

ability to prepare their defense), as well as

longer sentences for those convicted.

Society overall is likewise harmed by pretrial detention,

both because of the monetary costs of incarceration and

because pretrial detention—controlling for other factors—increases future crime and lowers rates of future

court appearance.

Answering the question presented would not require this Court to break new ground. To the contrary,

although the Court has not addressed these bail-related

issues for over three decades, its decisions make clear

that the lower-court cases rejecting a right to pretrial

liberty and allowing pretrial detention that serves no legitimate government interest are wrong. For example,

the Court—speaking through Chief Justice Rehnquist—

recognized in United States v. Salerno, 481 U.S. 739

(1987), that there is a “‘general rule’ of substantive due

process that the government may not detain a person

4

prior to” conviction, and that this right to pretrial liberty

is “fundamental,” id. at 749-750. Indeed, Salerno explained that “[i]n our society liberty is the norm, and detention prior to trial … the carefully limited exception.”

Id. at 755. And Foucha v. Louisiana, 504 U.S. 71 (1992),

invoked Salerno in striking down under the Due Process

Clause a state law that permitted deprivations of physical liberty precisely because the law did not require a

showing that such deprivations were necessary, see id.

at 80-83.

That holding is entirely unsurprising. As a matter

of first principles, there is no reason why states should

be able to detain people pretrial if alternatives to detention could adequately serve their interests. Again, physical liberty is among the most basic of rights. If that liberty means anything, it must mean that the state cannot

just keep someone in jail before conviction (often for prolonged periods) when alternatives to preventive detention would adequately serve its interests.

Recognizing all this, the district court here preliminarily enjoined Cullman County’s bail practices, holding

that they violate the substantive-due-process right to

pretrial liberty. But over a dissent, the Eleventh Circuit

reversed, seeing no constitutional violation because it

improperly (1) limited itself to a facial challenge rather

than addressing the as-applied claims Hester actually

brought and (2) disregarded the district court’s factual

findings about how the county’s bail system actually

functions—findings that were based on the live testimony and other evidence the court heard, and that were

not set aside (or even challenged) on appeal.

If the panel’s decision were correct, then each state

would be free to declare that every person arrested—

rich or poor—will be kept in jail for the entire pretrial

5

period, without the opportunity for an adversarial hearing on the question. But again, that holding is wrong under Salerno, Foucha, and other decisions of this Court;

it conflicts with decisions of other lower courts; and it involves issues that arise frequently and are enormously

important. Certiorari should therefore be granted and

the decision below reversed.

OPINIONS BELOW

The Eleventh Circuit’s opinion (App 1a-126a) is published at 42 F.4th 1298. The district court’s preliminaryinjunction opinion (App.127a-186a) is published at 330

F.Supp.3d 134. The injunction itself (App.187a-191a) is

unpublished, as is the Eleventh Circuit’s order denying

rehearing (App.193a-194a).

JURISDICTION

The Eleventh Circuit entered judgment on July 29,

2022, and denied a timely rehearing petition on November 18, 2022. This Court has jurisdiction under 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the U.S. Constitution provides in relevant part that “[n]o State shall …

deprive any person of … liberty … without due process

of law.”

STATEMENT

A. Historical And Modern Bail Practice

Historically, “bail” has referred to a means of securing release from custody—i.e., a mechanism for vindicating the right to freedom during the pretrial period—ra-

6

ther than a way of facilitating pretrial detention. In particular, for centuries “bail” in England and here typically

meant release with just a promise (often from a third

person) that an arrested individual would appear for

trial. Only in recent decades has “bail” come to commonly mean secured-money bail, that is, the requirement of an upfront cash payment, and hence mass pretrial detention of those unable to make such payments.

1. Anglo-American law has long recognized that a

meaningful right to pretrial liberty is a central protection against arbitrary government detention. The

Magna Carta itself established that imprisonment was

permissible only upon conviction. Magna Carta, ch. 30

(1216); accord id., ch. 39 (1215). And over the following

centuries, legislators and jurists developed additional

protections to implement that principle, including the

right to release on “bail,” historically defined as pretrial

release conditioned on a promise to appear for trial.

Foote, The Coming Constitutional Crisis in Bail I, 113

U. Pa. L. Rev. 959, 966-967 (1965); see also State v.

Brown, 338 P.3d 1276, 1283-1284 (N.M. 2014).

By the time of our nation’s founding, the right to pretrial liberty—including the right to bail and other limits

on the government’s authority to arbitrarily impose detention absent conviction—was firmly established. As

Blackstone wrote not long before America declared independence, “to refuse or delay to bail any person bailable[] is an offense against the liberty of the subject.” 4

Blackstone, Commentaries *294 (1770). And the first

Congress mandated that bail be available for all non-capital offenses. See Judiciary Act of 1789, 1 Stat. 73, 91.

States likewise protected pretrial liberty, with most

state constitutions guaranteeing a right to release on

bail by the time the Fourteenth Amendment was rati-

7

fied. See Hegreness, America’s Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 913 (2013).

From the republic’s earliest days, moreover, American

law recognized—as it does today, see infra pp.19-20—

that imposing an unattainable bail condition (such as unaffordable secured-money bail) is “mere colour for”

denying bail entirely. 1 Chitty, A Practical Treatise on

The Criminal Law 107-108 (1819).

In sum, “[b]ail was a carefully guarded right in colonial America, and early legislation significantly expanded upon English bail law by replacing remnants of

magistral discretion with a positive right to bail, except

in capital cases.” Sistrunk v. Lyons, 646 F.2d 64, 68 (3d

Cir. 1981). These and other developments reflected “a

deep-rooted commitment to freedom before conviction.

Id.; see also Brown, 338 P.3d at 1284-1288. They also underscore that bail has traditionally been “a mechanism

for pretrial release and not for continued pretrial preventive detention.” ODonnell v. Harris County, 251

F.Supp.3d 1052, 1070 (S.D. Tex. 2017) (subsequent history omitted).

2. Throughout the twentieth century, the interest

in pretrial liberty—implemented, again, partly via the

right to bail—continued in importance. For example,

this Court explained that the “right to bail before trial”

is crucial because unless it “is preserved, the presumption of innocence … lose[s] its meaning.” Stack v. Boyle,

342 U.S. 1, 4 (1951). That is both because arrested persons are deprived of physical liberty despite being presumed innocent and because “freedom before conviction

permits the unhampered preparation of a defense.” Id.

Also during the twentieth century, however (specifically late in the century), there was an acceleration of a

change regarding how pretrial release is effected. For

8

centuries, it was almost exclusively through “unsecured” personal sureties, i.e., a third person’s promise to

assure the defendant’s appearance. But after adoption

of the Fourteenth Amendment, a new practice emerged

of requiring upfront cash payments to secure release.

Schnacke, A Brief History of Bail, 57 Judges’ J. 4, 6-7

(2018). The first known commercial bail company began

operating in San Francisco in 1896. Baughman, The Bail

Book: A Comprehensive Look at Bail in America’s

Criminal Justice System 165 (2018). But in recent decades, the practice has become much more common.

Whereas courts in 1990 demanded secured-money bail

(also known as “cash bail”) in only about one-third of felony cases, they did so nearly twice as often by 2009. See

National Institute of Corrections, Fundamentals of Bail

10 (2014); ODonnell, 251 F.Supp.3d at 1068-1070.

This modern development, however, occurred only

at the state and local level, because for years the use of

secured-money bail in federal courts has been restricted

by the 1984 Bail Reform Act (“BRA”). That law forbids

courts from imposing secured-money bail if doing so “results in … pretrial detention.” 18 U.S.C. §3142(c)(2). It

also requires courts to release individuals pretrial “subject to the least restrictive … conditions” that will serve

the government’s interests in “reasonably assur[ing] the

appearance of the person … and [public] safety,” id.

§3142(c)(1)(B). Pretrial detention is thus permissible in

federal cases only if a court—after an adversarial hearing at which the accused has the rights to counsel, to present evidence, and to challenge the government’s evidence—finds that the government has satisfied its burden to establish that no conditions of release could reasonably prevent flight and assure community safety. Id.

§3142(e)-(f).

9

Even as localities have increased the use of securedmoney bail, moreover, many state laws continue to reflect the broader meaning of “bail.” Alabama is one example: Its law defines “bail” as “the release of a person

who has been arrested,” Ala. Code §15-13-102, and specifies four different types of “bail,” one of which is “the

release of any defendant without any condition of an undertaking relating to, or a deposit of, security,” id. §1513-111.

B. Hester’s Arrest And Detention

1. In 2017, petitioner Bradley Hester was arrested

in Cullman County and charged with one count of misdemeanor drug-paraphernalia possession. App.10a. Although an otherwise-identical person with money could

have bought her freedom in under 90 minutes by paying

$1,000 cash bail, Hester could not pay that amount. Id.;

D.Ct. Dkt. 95, ¶45. He was therefore locked in jail.

App.10a.

The $1,000 figure came from a schedule (i.e., a chart)

that Cullman County used to set cash bail for warrantless arrests. App.5a. For every charge, the chart specified a range of required cash amounts. App.6a. Arrestees who could not pay the scheduled amount stayed

behind bars until a magistrate (who generally is not a

lawyer) conducted an initial appearance. Id.; App.82a &

n.3. Hester was detained for two days before his initial

appearance. App.10a.

2. In Alabama, initial appearances are not adversarial hearings where individuals are entitled to be

heard on the need for detention. They are instead brief

ministerial proceedings at which individuals are informed of the charges, their right to counsel at later

stages of the case, and the conditions of release. Ala. R.

Crim. P. 4.4. Initial appearances in Cullman County are

10

typically conducted by video—with the arrested individual appearing from jail—and neither prosecutors nor defense counsel are present. App.139a.

At Hester’s initial appearance (which lasted under

two minutes), the magistrate recited the $1,000 price of

liberty but did not inquire whether Hester could pay

that amount. D.Ct. Dkt. 95, ¶44. Nor did she assess

whether preventive pretrial detention was necessary to

protect public safety or prevent flight. Id. Hester was

not given counsel at the initial appearance, nor an opportunity to either confront the evidence on which his detention was based or otherwise be heard on whether detaining him was necessary to protect public safety or

prevent flight. Id. Because Hester could not pay $1,000,

he remained in jail. App.10a.

This experience was typical: At the time of Hester’s

arrest, magistrates in Cullman County could not adjust

bail amounts at initial appearances, App.6a, so anyone

who could not buy release right after arrest likewise

would not be able to do so after the initial appearance.

Those people, i.e., individuals unable to afford the

amount required by the bail chart, usually spent weeks

in jail before having any opportunity to challenge the

need for their detention. D.Ct. Dkt. 132, ¶¶8-9.

C. District Court Proceedings

1. Days after his arrest (and while still incarcerated), Hester intervened in this lawsuit, which challenges the constitutionality of Cullman County’s bail

practices. App.81a; D.Ct. Dkt. 76-1. On behalf of himself

and an inherently transitory class, Hester asserted that

those practices violate the substantive-due-process

right to pretrial liberty by jailing presumptively inno-

11

cent people without any finding that detention is necessary to serve a government interest and without providing basic procedural protections, such as an adversarial

hearing at which people have a meaningful opportunity

to be heard on the need for their detention. App.10a;

D.Ct. Dkt. 76-1, at 19.1

After intervening, Hester moved for a classwide

preliminary injunction. App.2a. Two weeks before the

evidentiary hearing on that motion (and over nine

months after he intervened), Cullman County issued a

new “Standing Bail Order” (SBO). App.11a, 195a-202a.

The order made formal changes to Cullman County’s bail

policies, but as elaborated below, the district court found

that the county’s actual practices after this mid-litigation change were largely if not entirely the same as before it. See App.144a.

Like the practices in effect when Hester was arrested, the SBO uses a chart to condition pretrial freedom on upfront cash-bail payments, based on the charge

or charges. App.7a, 195a-196a. It also provides that a

person who cannot pay must have an initial appearance

within 72 hours of arrest. App.8a, 198a. If that does not

occur, the county sheriff must release the person on unsecured bail (meaning no actual cash payment is required unless a mandatory court appearance is later

missed). App.22a, 202a.

1

Hester also claimed violations of (1) the separate Fourteenth

Amendment right against detention based solely on inability to pay

a sum of money, and (2) procedural due process, because Cullman

County detains people pretrial without providing even the most

basic procedural protections, such as a meaningful opportunity to be

heard and to challenge the evidence against them. This petition

does not address those claims.

12

Under the SBO, a law-enforcement officer who believes an arrestee presents an unreasonable publicsafety or flight risk can ask a magistrate to deny release

until the initial appearance. App.7a-8a, 197a-198a. The

district court found, however, that in practice such requests are virtually never made. App.144a.

The SBO formally requires judges, in evaluating at

initial appearances whether to adjust a pre-scheduled

cash-bail amount, to consider both a person’s ability to

pay—as gleaned from forms arrestees can submit and

any questions a judge asks—as well as the fourteen factors in Alabama Rule of Criminal Procedure 7.2(a).

App.199a-201a. A judge may release a person on recognizance. App.201a. If the judge instead re-imposes secured-money bail, the SBO formally requires “a written

finding as to why [doing so] is reasonably necessary to

assure the defendant’s presence at trial.” App.202a. The

SBO also formally prohibits imposing unaffordable secured-money bail “if there is a less onerous condition

that would assure the defendant’s appearance or minimize risk to the public.” App.201a.

Like defendants’ practices at the time this case was

filed, the SBO allows weeks of detention before arrested

people have the right to counsel, to present evidence, to

challenge the state’s evidence, or even a meaningful opportunity to be heard. App.139a. Under the SBO (as

before), an initial appearance is only a brief, ministerial,

and non-adversarial proceeding. App.139a, 198a-199a.

2. Two-plus weeks after the SBO was implemented, the district court conducted an evidentiary

hearing on Hester’s preliminary-injunction motion.

App.11a. Four witnesses testified and nearly sixty exhibits were filed. App.81a-82a. Because no factual dispute existed about the pre-modification practices, “[t]he

13

parties conformed their evidence … to Cullman County’s

new pretrial procedures,” i.e., its practices since the midlitigation issuance of the SBO. App.128a n.1. Based on

that evidence, the court made factual findings about

those practices. Id.

The court first found that county officials do not follow the SBO. App.144a. For example, despite the SBO’s

requirement that unaffordable secured-money bail not

be imposed if less onerous conditions would reasonably

assure public safety and appearance at trial, the district

court found that—after the SBO’s issuance (as before)—

judges often detain people by requiring unaffordable secured-money bail, App.143a, without “ask[ing] too many

questions,” App.175a, i.e., without inquiring into flight

risk or dangerousness, and without giving individuals an

opportunity to speak. The court also found that although

the SBO requires judges who impose unaffordable secured-money bail to “make ‘a written finding’” on two

forms regarding “why the posting of a bond is reasonably necessary,” App.202a, that does not happen in practice because neither form provides space to do so.

App.145a. Instead, one form merely requires a judge to

check boxes identifying which of fifteen factors he “consider[ed],” while the other form simply requires the

judge to check a box if secured-money bail is imposed.

Id. And the court found that requests by law-enforcement officials to deny bail until the initial appearance are

almost never made. App.144a. Finally, the court found

that Cullman County’s automatic imposition of secured

money bail does not advance the county’s stated interests of minimizing flight and public-safety risks.

App.154a. For example, “the evidence demonstrate[d]

that secured bail is no more effective than other conditions” (such as unsecured bail) in ensuring “a criminal

defendant’s appearance.” App.159a.

14

After making these findings (and others), the district court rejected, for two reasons, defendants’ argument that the SBO’s issuance mooted Hester’s claims.

App.146a-147a. First, defendants “do not fully comply

with the new written procedures.” App.146a. Second,

those procedures are themselves “constitutionally deficient.” App.147a.

Turning to the preliminary-injunction factors, the

court first considered whether Hester “demonstrated a

substantial likelihood of success on [his] constitutional

claims.” App.128a n.1. Based on the facts found, the

court ruled that Hester was likely to prove (as relevant

here) that the county’s post-SBO bail practices violate

substantive due process. App.163a-164a. Specifically,

the court held that by detaining people without any finding that doing so is necessary to further a government

interest, Cullman County likely violated the right to pretrial liberty recognized in Salerno and other cases. Id.2

The district court then concluded that the remaining

preliminary-injunction factors each favored an injunction—including because of the irreparable harm that

pretrial detention imposes. App.181a-185a; see infra

pp.33-35. It thus entered a preliminary injunction—after inviting defendants to provide input on the appropriate contours of the injunction, an invitation defendants

declined. App.187a-191a.

The injunction requires the sheriff to either release

bail-eligible individuals on unsecured bail or else submit

2

The court also held that Hester was likely to succeed on his

other claims. App.154a-180a. For example, it held that Cullman

County’s initial appearances—where individuals are neither provided counsel nor have a right to speak or present evidence about

the need for detention—likely violate procedural due process.

App.173a-180a.

15

a bail-request form. App.188a-189a. It further mandates that any individual for whom a bail-request form

is submitted receive an initial appearance within 48

hours or be released on unsecured bail. App.189a. Before initial appearances, moreover, the sheriff must notify arrestees that they are entitled to release on unsecured bail unless a judge finds by clear and convincing

evidence that they pose “a significant risk of flight or

danger to the community.” Id. The sheriff was also required to adopt other specified procedural safeguards.

App.189a-190a.

D. Decision Below

1. The Eleventh Circuit reversed the entry of the

preliminary injunction. App.62a.

The panel first unanimously rejected defendants’ arguments that Younger v. Harris, 401 U.S. 37 (1971), required abstention and that the district court should have

dismissed the sheriff based on lack of standing, sovereign immunity, or failure to state a claim. App.14a-23a.

The panel also unanimously granted Hester’s motion to

dismiss the judicial defendants from the appeal for lack

of appellate jurisdiction because the injunction bound

only the sheriff. App.23a-27a.

The panel majority then ruled that even though

Hester’s complaint challenged Cullman County’s actual

bail practices, his claims had to be analyzed as a “facial[]”

challenge to the policy revisions the county issued midlitigation (i.e., the SBO). App.29a. The majority reasoned that “Hester cannot trace his injury to the current

operative bail system” because he was released before it

was issued, and “the bail scheme at issue here had only

been in place for sixteen days before the district court

16

held its preliminary injunction hearing,” App.28a (emphasis omitted).

Having refused to analyze the claims Hester actually brought (despite concluding that it had jurisdiction

over those claims), the panel majority held that the SBO

facially complies with substantive due process, App.54a55a, summarily dismissing Hester’s substantive-dueprocess challenge on the ground that “[p]retrial detainees have no fundamental right to pretrial release,”

App.55a. Contra Salerno, 481 U.S. at 749-750, quoted

supra p.4.3

2. Judge Rosenbaum dissented in relevant part.

She would have held that Cullman County’s actual bail

practices “violate[] indigent arrestees’ … due-process

rights.” App.65a.

The panel reached a contrary conclusion, Judge Rosenbaum explained, only by (1) limiting itself to a facial

challenge, and (2) ignoring the district court’s unchallenged factual findings about how Cullman County’s bail

system actually operates, including after issuance of the

SBO. App.67a-68a. But the panel, she stated, was not

free to disregard those binding facts—none of which

were even challenged on appeal, let alone held to be

clearly erroneous—nor was it free to refuse to evaluate

Hester’s challenge to Cullman County’s actual bail practices. App.66a-73a. Applying the law to those claims,

3

The panel likewise rejected Hester’s other claims. For example, it held that Cullman County’s initial appearances comport with

procedural due process because they are supposedly similar to the

detention hearings at issue in Salerno, even though—unlike those

hearings—initial appearances are not adversarial and do not afford

people a right to be heard or put the burden on the government to

justify pretrial detention by clear and convincing evidence.

App.55a-61a.

17

and to the facts as found, Judge Rosenbaum concluded

“that Cullman County’s current bail practices violate the

Fourteenth Amendment.” App.78a.4

All this matters, Judge Rosenbaum explained, because pretrial detention inflicts tremendous harm—including on society, because pretrial detention not only

costs taxpayers money but also increases the risk of future crime. App.90a-96a; see supra p.3, infra pp.33-35.

And, she noted, that harm is inflicted for no countervailing benefit, as the district court found that Cullman

County’s practices “do[] nothing to secure public safety,”

App.160a, and that secured bail is no better than unsecured bail at ensuring appearance, App.158a-159a.

3. The Eleventh Circuit denied panel rehearing

and rehearing en banc. App.193a-194a.

REASONS FOR GRANTING THE PETITION

I.

THE DECISION BELOW IS WRONG

Keeping presumptively innocent people in jail prior

to trial without finding that detention is necessary violates their fundamental right to pretrial liberty. Cullman County’s actual bail practices, as described in the

district court’s unchallenged factual findings, do exactly

4

Judge Rosenbaum also disagreed with the majority’s rejection of Hester’s other claims. As to procedural due process, she explained that Cullman County locks people in jail for weeks after

providing only a non-adversarial initial appearance that lasts

minutes (if that) and at which pretrial detention is imposed “almost

automatically,” App.105a, without any written findings being made

to support the detention and without individuals having any right

to counsel or even to speak, much less to challenge the basis for detention or otherwise be heard on why detention is unnecessary to

protect public safety or prevent flight, App.105a-108a.

18

that. The Eleventh Circuit’s reasons for concluding otherwise are deeply flawed.

A. Cullman County’s Bail Practices Violate The

Substantive Due Process Right To Pretrial

Liberty

1.

Salerno and Foucha Establish That Substantive Due Process Bars Pretrial Detention Absent A Finding That No Alternative

To Detention Will Serve The Government’s

Interest

This Court has repeatedly recognized that substantive due process protects a right to pretrial liberty.

“Freedom from bodily restraint,” the Court has explained, “has always been at the core of the liberty protected by the Due Process Clause.” Foucha, 504 U.S. at

80; accord Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

The “fundamental nature of this right,” Salerno, 481

U.S. at 750, is indisputable: Incarceration implicates the

“most elemental of liberty interests—the interest in being free from physical detention by one’s own government.” Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004)

(plurality).

Salerno applied these principles to a facial challenge

to the Bail Reform Act, which as noted governs decisions

in federal court regarding pretrial detention and release.

In resolving that challenge, Salerno recognized a “‘general rule’ of substantive due process that the government may not detain a person prior to” conviction—a

rule reflecting a “fundamental” right. 481 U.S. at 749750. And given “the individual’s strong interest in liberty,” Salerno emphasized, that right may be overcome

only “where the government’s interest is sufficiently

weighty.” Id. at 750. The BRA satisfied this standard,

Salerno held, because it permits pretrial detention only

19

if, “[i]n a full-blown adversary hearing, the Government

… convince[s] a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.” Id. This Court has since described Salerno as applying strict scrutiny. See Reno v. Flores, 507 U.S. 292,

301-302 (1993).

Foucha confirms that the BRA’s requirement of a

finding that detention is necessary was critical to Salerno’s upholding of the law: Foucha struck down a Louisiana law permitting the confinement of individuals precisely because that law did not require such a finding.

See 504 U.S. at 80-83. In fact, Foucha invoked Salerno’s

recognition that, because physical freedom is at the

“core of the liberty protected by the Due Process

Clause,” it may be outweighed only in “narrow circumstances,” such as when “persons … pose a danger.” Id.

at 80. And it contrasted Salerno’s “sharply focused

scheme,” id. at 81, with the detention regime before it—

noting, for example, that whereas in Salerno, the government had to prove dangerousness, under Louisiana’s

law, “the State need prove nothing to justify continued

detention, for the statute places the burden on the detainee to prove that he is not dangerous,” id. at 81-82. In

short, Foucha held, Louisiana’s law violated substantive

due process by permitting confinement that was not necessary to serve Louisiana’s interests. Id. at 81.

That Salerno and Foucha involved express detention orders rather than (as here) detention via the imposition of unaffordable secured-money bail does not affect

those cases’ applicability here (nor did the panel suggest

otherwise). As numerous courts have recognized, an order imposing unaffordable financial conditions is a “de

facto pretrial detention order[].”

ODonnell, 251

F.Supp.3d at 1150; accord United States v. Mantecon-

20

Zayas, 949 F.2d 548, 550 (1st Cir. 1991) (per curiam);

United States v. Leathers, 412 F.2d 169, 171 (D.C. Cir.

1969) (per curiam). Indeed, one state high court has

opined that “[i]ntentionally setting bail so high as to be

unattainable is simply a less honest method of unlawfully

denying bail altogether.” Brown, 338 P.3d at 1292. Regardless, because both types of orders result in the same

restriction of pretrial liberty, both must satisfy the same

constitutional rule: Detention is permissible only if it is

necessary because no alternative could serve the government’s interests.

To be sure, the right to pretrial liberty is not absolute. (No right is.) As Salerno recognized, see 481 U.S.

at 751, that right can be overcome when the state’s interests outweigh the individual’s. But the fact that substantive due process permits pretrial detention that is

necessary to serve the government’s interests does not

mean detention is permissible absent such necessity, any

more than acknowledging the government’s ability to restrict expression if it satisfies strict scrutiny means such

restrictions are permissible when the government cannot do so.

2.

Cullman County’s Actual Bail Practices

(Pre- And Post-SBO) Violate The Right To

Pretrial Liberty

The district court’s unchallenged factual findings—

amply supported by the evidence yet disregarded by the

Eleventh Circuit in clear conflict with this Court’s precedent, see infra pp.23-26—establish that Cullman

County routinely detains arrested individuals absent

any finding that detention is necessary to serve a government interest. That practice, which has continued

since issuance of the SBO, violates those individuals’ interest in pretrial liberty.

21

To be sure, the SBO formally requires judges who

impose unaffordable secured-money bail to “make a

written finding” on two forms regarding “why the posting of bond is reasonably necessary.” App.202a. But as

the district court explained, neither form provides space

to do so. App.145a. And the court expressly found that

“Cullman County judges do not actually make ‘findings,’” App.177a, including any finding that detention is

necessary to protect public safety or reasonably assure

future court appearance. Instead, judges (even after issuance of the SBO) merely check boxes identifying

which listed factors were “considered.” Id. The district

court explained, however, that each “check communicates no individualized reason for the judge’s decision”;

indeed, “a checked box does not [even] indicate whether

a factor worked in the defendant’s favor or … against.”

App.178. Judges thus detain people without finding that

no less-restrictive alternative to detention—such as unsecured bail, mandatory check-ins, GPS monitoring, text

message or email reminders about court dates, stayaway orders, drug testing, requiring surrender of firearms, or others—would serve the state’s interests in

protecting public safety and preventing flight. Under

Salerno and Foucha, that is unconstitutional.

While no more is needed, it bears noting that a finding of necessity must be supported by sufficient evidence; a judge cannot just aver with no basis that depriving a person of physical liberty is necessary. See Salerno, 481 U.S. at 750. And the record shows that Cullman County’s procedures do not result in a sufficient evidentiary basis to detain. As noted, initial appearances

are extremely brief, pro forma proceedings at which neither prosecutors nor defense counsel are present, and at

which individuals have no right to speak, much less present evidence or challenge any evidence against them.

22

Moreover, one of the two county judges who handle initial appearances testified below that he “does not inquire

‘much past the defendant’s income or indigency status.’”

App.87a. A court cannot find that detention is necessary

to address public-safety or flight risks if the only information available is about “income or indigency status.”

The post-litigation forms that arrestees can submit

before their initial appearances do not fill this gap.

“[T]he district court found that many defendants cannot

effectively complete the forms” because “most people arrested in Cullman County do not have a high-school education, many have learning disabilities, and [many]

struggle with reading comprehension.” App.85a; see

also App.138a-139a, 174a. Nor does either form provide

adequate notice; neither, for example, informs individuals that “a judge may enter a de facto detention order by

setting unaffordable secured money bail even after considering information provided by the defendant.”

App.106a. The forms thus provide little or no information regarding public-safety and non-appearance

risks. That, together with the lack of an adversarial

hearing, evidentiary standard, findings on the record,

and meaningful judicial inquiry on those topics, leaves no

doubt that detention occurs without a supportable finding that detention is necessary to serve a government

interest.

Needless pretrial detention is in fact commonplace

in Cullman County. The same judge just mentioned

“testified that under the Standing Bail Order system, he

sets secured bonds for indigent defendants at their initial appearances about half the time.” App.116a-117a;

see also D.Ct. Dkt. No. 143, at 393:2-4. That is wholly

inconsistent with Salerno’s explanation that the right to

pretrial liberty ensures that “[i]n our society liberty is

23

the norm, and detention prior to trial … the carefully

limited exception.” 481 U.S. at 755.

Indeed, Cullman County’s bail practices stand in

stark contrast to the regime Salerno upheld. As explained, the BRA prohibits pretrial detention unless a

court finds, after a “full-blown adversary hearing,” that

the government has proven by clear and convincing evidence that detention is necessary because no alternatives would protect public safety. 481 U.S. at 750. Cullman County has instead adopted practices similar to

those invalidated in Foucha: It allows detention without

a finding of necessity, puts the burden on individuals to

prove the absence of any basis to detain, and provides

utterly ministerial proceedings that are devoid of the

most basic procedural protections. See, e.g., App.2a;

compare Foucha, 504 U.S. at 81-82. This Court’s precedent forecloses such a regime.

B. The Eleventh Circuit’s Grounds For Reversing

The Preliminary Injunction Are Infirm

The panel’s rationales for rejecting Hester’s pretrial-liberty claim lack merit.

1.

Facial Challenge

As a threshold matter, the panel stated that Hester

could succeed on his claims only if the SBO issued midlitigation is “facially unconstitutional.” App.29a. But

while the SBO is facially unconstitutional—for example,

it allows detention without providing even the most

basic procedural protections, such as a meaningful opportunity to be heard—Hester’s complaint challenged

Cullman County’s actual bail practices. D.Ct. Dkt. 95,

¶¶13-40. Hester continued to challenge those actual

practices after the mid-litigation issuance of the SBO, al-

24

leging that those practices differed from the newly written policy. D.Ct. Dkt. 131, at 29-31; see App.146a-147a.

And the district court found, after hearing live testimony and receiving other evidence, that the county’s

practices after issuing the SBO did differ from the written policy—and largely mirrored the county’s pre-SBO

practices. App.144a. The panel had no authority to refuse to adjudicate or refashion the claims Hester actually brought: “[T]he plaintiff is ‘the master of the complaint,’” Holmes Group, Inc. v. Vornado Air Circulation

Systems, Inc., 535 U.S. 826, 831 (2002) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-399 (1987)), and

so long as jurisdiction exists (as here), a “federal court’s

‘obligation’ to … decide a case is ‘virtually unflagging,’”

Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 77

(2013).

The panel’s two reasons for refusing to adjudicate

the claims Hester brought are misguided.

a. The panel asserted that, for two reasons, it could

consider only a facial challenge by Hester to the SBO.

First, the panel stated that because Cullman County issued the SBO mid-litigation, “Hester’s challenge to Cullman County’s former bail procedures is now moot.”

App.32a. Second, the panel stated that because Hester

was released from jail before the SBO’s issuance, he

“cannot trace his injury to the current operative bail system,” and thus could not challenge it as applied.

App.28a. Both points are manifestly wrong under this

Court’s precedent.

A voluntary mid-litigation cessation of challenged

practices moots a claim attacking those practices only if

the defendant “bears the formidable burden of showing

that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Already,

25

LLC v. Nike, Inc., 568 U.S. 85, 95 (2013)). The Eleventh

Circuit did not conclude that that burden had been met.

Nor did defendants ever claim to have satisfied that burden. That is not surprising, because the district court

found (based on ample supporting evidence) that the issuance of the SBO did not meaningfully change the actual practices that Hester challenged: The county continues to detain presumptively innocent people pretrial

without providing basic procedural protections (such as

an adversarial hearing) and without finding that detention is necessary to serve a government interest. E.g.,

App.144a-146a. Defendants thus could not possibly

show that the challenged practices would not recur;

those practices never ceased. The panel accordingly had

no basis to deem Hester’s challenge to the pre-SBO conduct moot—other than disregarding the district court’s

factual finding about the post-SBO practices. But the

panel could not disregard those findings, because this

Court has held that the federal rules impose a categorical “obligation o[n] a court of appeals to accept a district

court’s findings unless clearly erroneous.” Anderson v.

City of Bessemer City, 470 U.S. 564, 574 (1985). The

panel here did not deem any finding clearly erroneous.

The panel’s reliance on Hester having been released

before the SBO issued is likewise infirm. Hester’s claims

are brought on behalf of a class of people detained by

Cullman County. App.2a. And this Court—applying the

mootness exception for conduct “capable of repetition,

but evading review”—has held that because “[p]retrial

detention is by nature temporary,” the fact that the

named plaintiff’s pretrial detention has ended “does not

moot the claims of the unnamed [class] members.” Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975); accord

County of Riverside v. McLaughlin, 500 U.S. 44, 51-52

26

(1991). Here too, then, the panel’s mootness holding directly conflicts with this Court’s precedent.

b. The panel stated that because defendants chose

to issue the SBO just sixteen days before the long-scheduled preliminary-injunction hearing, the record was insufficient to evaluate Cullman County’s post-SBO practices. App.28a-29a. But the fact “[t]hat a longer period

of operation might have allowed for … evidence about

more facets of how Cullman County executes the [SBO]”

is not a “reason to dismiss the … factual findings about

the aspects of Cullman County’s bail practices that the

evidence did illuminate.” App.70a. No party asked to

postpone the preliminary-injunction hearing, nor has anyone ever suggested (1) that the evidence adduced at the

hearing—including a Cullman County judge’s testimony

that he had conducted “40 to 45” initial appearances of

putative class members since the SBO became effective,

D.Ct. Dkt. 143, at 84:21-84:24—is insufficient to evaluate

the post-SBO practices, or (2) that “the evidence on

which the district court relied does not provide an accurate picture of what Cullman County’s bail practices

are,” App.69a-70a.

Put simply, the district court made undisputed factual findings about Cullman County’s actual post-SBO

bail practices based on defendants’ own evidence and

testimony, findings the panel did not set aside and hence

was bound by. Hester’s challenge to those practices was

therefore properly before the panel (as it is now properly

before this Court), and the panel had no basis not to address it.

2.

Right To Pretrial Liberty

The panel said little about Hester’s claim that Cullman County’s bail practices violate the substantive-due-

27

process right to pretrial liberty. The few points it did

make are wrong.

For starters, the panel flouted this Court’s precedent in stating that “[p]retrial detainees have no fundamental right to pretrial release.” App.55a. Again, Salerno stated the opposite, recognizing arrestees’ “strong

interest in liberty” and acknowledging “the importance

and fundamental nature of this right.” 481 U.S. at 750.

The panel sought to excuse its departure from Salerno in two ways. First, it cited circuit precedent stating that Salerno is “a procedural due process case, not a

substantive due process case.” App.55a. But while a

case can be about both (this case is), Salerno unquestionably is a substantive-due-process case. It referred repeatedly to substantive due process, both in describing

the decision below and in its own analysis. See 481 U.S.

at 741, 746, 749. If any doubt remained, Foucha and

Reno would dispel it, as each characterized Salerno as a

substantive-due-process case. See Foucha, 504 U.S. at

80 (citing Salerno in stating that “the Due Process

Clause contains a substantive component”); Reno, 507

U.S. at 301-302 (same).

Second, the panel noted that Salerno makes clear

that the right to pretrial liberty is not absolute. App.55a.

But “absolute” and “fundamental” are not the same

thing. As noted, no constitutional right is absolute.

Some, however, are fundamental. The same point answers the panel’s reasoning that if there were a “fundamental right to pretrial release …, bail itself would be

unconstitutional.” Id. That is wrong even putting aside

that the court said “bail” when it must have meant pretrial detention. (As noted earlier, “bail is a mechanism

for pretrial release and not for continued pretrial preventive detention,” ODonnell, 251 F.Supp.3d at 1070; see

28

also Ala. Code §15-13-102, quoted supra p.9.) It is wrong

because, again, the right to pretrial liberty—though fundamental—is not absolute.

Finally, the panel asserted that the bail practices

challenged here—including using secured-money bail to

deprive people of pretrial liberty without an adversarial

hearing or any finding that detention is necessary to

serve a government interest—are “ubiquitous.” App.2a.

To the extent it was suggesting that such practices are

constitutional because they are commonplace, that is

both factually and legally incorrect. Factually, the use

of secured-money bail is (as explained, see supra pp.5-9),

a recent phenomenon (becoming markedly more prevalent after 1990). For centuries, including both at the

Founding and when the Fourteenth Amendment was

ratified, “bail” was instead almost always unsecured.

And as a legal matter, even longstanding practices involving deprivation of physical liberty—what this Court

has called “old infirmities which apathy or absence of

challenge has permitted to stand”—enjoy no immunity

to constitutional challenge. Williams v. Illinois, 399

U.S. 235, 245 (1970). Rather, “constitutional imperatives

… must have priority over the comfortable convenience

of the status quo.” Id.

Similarly, to the extent the panel meant to imply

that Hester’s pretrial-liberty claim is novel or radical,

that is demonstrably incorrect. The regime that Hester

says the Constitution requires—under which pretrial

detention is permissible, so long as it is demonstrated to

be necessary to protect public safety or prevent flight—

has largely been in place by statute (the Bail Reform

Act) in federal courts for decades. And many other jurisdictions likewise do not jail presumptively innocent

individuals without finding that detention is necessary

29

to serve a government purpose. The regime Hester espouses is thus not remotely novel. Nor is there any evidence—despite the decades of experience the federal

government and other jurisdictions have had with

largely the regime Hester espouses—that that regime is

unworkable or would have deleterious consequences. In

sum, what Hester seeks is modest (that government

have a good reason to keep people in jail cells pretrial),

workable (as years of experience in other jurisdictions

show), and, most importantly, required by the Constitution.

Indeed, this Court has adopted the same constitutional requirement Hester espouses—that detention be

supported by a finding of necessity—in cases involving

the separate Fourteenth Amendment right not to be detained based solely on inability to pay a sum of money.

Even people already convicted of crimes, the Court has

held, can constitutionally be imprisoned via the imposition of an unaffordable sum of money “[o]nly if” doing so

is necessary because “alternatives to imprisonment are

not adequate in a particular situation to meet the State’s

interest[s].” Bearden v. Georgia, 461 U.S. 660, 672

(1983).

In short, the panel said nothing supporting its conclusion that Cullman County’s bail practices do not infringe the right to pretrial liberty recognized in Salerno

and in Foucha (a case the panel never even cited). And

that conclusion—specifically that there is no such

right—led the panel to endorse a regime in which uncounseled people are (1) locked in jail (based on an utterly pro forma proceeding, and with no finding of necessity) and (2) kept there for weeks before having a meaningful opportunity to be heard, including to speak or confront evidence on whether they are a flight risk or a danger to the community. That cannot be the law.

30

II. THE DECISION BELOW CONFLICTS WITH OTHER

COURTS’ CASES

The Eleventh Circuit’s rejection of Hester’s substantive-due-process claim, on the ground that “pretrial

detainees have no fundamental right to pretrial release,”

App.55a, conflicts with decisions of other appellate

courts. Those courts recognize a fundamental interest in

pretrial liberty and hold that due process prohibits

states from detaining people pretrial unless doing so is

necessary to serve a government interest.

For example, in Lopez-Valenzuela v. Arpaio, 770

F.3d 772 (9th Cir. 2014) (en banc), the en banc Ninth Circuit recognized, contrary to the Eleventh Circuit’s holding here, that certain Arizona laws restricting pretrial

liberty “infringe[d] a ‘fundamental’ right,” id. at 780

(quoting Salerno, 481 U.S. at 750). And it held those

laws unconstitutional because (among other defects)

they allowed—in fact required—detention “needlessly,”

i.e., when persons arrested “d[id] not pose a flight risk.”

Id. at 785.

Similarly, in In re Humphrey, 482 P.3d 1008 (Cal.

2021), the California Supreme Court recognized—again

in conflict with the decision below—that the U.S. Constitution confers a “fundamental right to pretrial liberty,” id. at 1013. And it held needless pretrial detention

unconstitutional, stating that “federal constitutional

constraints” make pretrial detention “impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interests,” id. at

1019.

Decisions of other state high courts—likewise applying federal law—are to the same effect. The Nevada Supreme Court, for example, held that its “conclusion that

bail may be imposed only when necessary to ensure the

31

defendant’s appearance or to protect the community is

… mandated by substantive due process principles.”

Valdez-Jimenez v. Eighth Judicial District Court, 460

P.3d 976, 984 (Nev. 2020). Pretrial detention, the court

expounded, “infringes on the individual’s liberty interest. And given the fundamental nature of this interest,

substantive due process requires that any infringement

be necessary to further a legitimate compelling government interest.” Id.; accord Brangan v. Commonwealth,

80 N.E.3d 949, 964-965 (Mass. 2017) (“[W]here … bail …

will likely result in … pretrial detention, the judge must”

explain “why … the defendant’s risk of flight is so great

that no alternative … will … assure … her presence at

future” proceedings); State v. Wein, 417 P.3d 787, 791

(Ariz. 2018) (due process “prohibits the government

from … jailing [people] before trial” except in “exceptional circumstances” where “the government’s interest

… outweigh[s] an individual’s ‘strong interest in liberty,’

an important, fundamental right”).

Finally, the en banc Fifth Circuit has explained that

“[r]ules under which personal liberty is to be deprived

[pretrial] are limited by … constitutional guarantees,”

and that “[t]he ultimate inquiry in each instance is what

is necessary to reasonably assure [a] defendant’s presence at trial.” Pugh v. Rainwater, 572 F.2d 1053, 1057

(5th Cir. 1978) (en banc). Accordingly, the court elaborated, “unnecessary … pretrial detention” is “constitutionally interdicted.” Id. at 1058.

Had Hester’s case come before any of the courts just

cited, the district court’s grant of Hester’s preliminaryinjunction motion would have been affirmed rather than

reversed. And this division of authority is unlikely to

resolve itself. Here, for example, the Eleventh Circuit

declined Hester’s request to rehear the appeal en banc.

32

III. THE QUESTION PRESENTED IS RECURRING AND

IMPORTANT

Certiorari is warranted to resolve the lower-court

division over the question presented and to correct the

Eleventh Circuit’s departure from this Court’s precedent because the question is both recurring and surpassingly important.

As the cases cited herein show, whether states can

lock up presumptively innocent individuals pretrial for

extended periods, without showing that doing so is necessary to serve their interests, is a question that arises

frequently. Millions of people are jailed in America each

year. See Zeng, Jail Inmates in 2021, at 3, Bureau of

Justice Statistics (Dec. 2022). The constitutional limits

on states’ power to deprive arrested people of one of our

most fundamental freedoms is thus a matter that affects

huge numbers of Americans. Yet this Court has not addressed those limits for decades, and as explained, see

supra pp.30-31, lower courts have reached divergent

conclusions in recent years.

The question presented is also of paramount importance, both because physical liberty is among the oldest and most precious of rights and because pretrial detention inflicts severe harms. See App.90a-96a; supra

p.3.

For example, this Court has explained that pretrial

detention can mean “loss of a job” and “disrupt[ion to]

family life” for detainees. Barker v. Wingo, 407 U.S. 514,

532 (1972); accord Gerstein, 420 U.S. at 114. Other

courts have made the same point. See ODonnell v. Harris County, 892 F.3d 149, 154-155 (5th Cir. 2018) (opinion

on rehearing), Curry v. Yachera, 835 F.3d 373, 376-377

(3d Cir. 2016); Lopez-Valenzuela, 770 F.3d at 781.

33

Empirical research documents these harms (and

others). For instance, according to one study of several

hundred thousand cases, an arrestee “detained for even

a few days may lose her job, housing, or custody of her

children.” Heaton et al., The Downstream Consequences

of Misdemeanor Pretrial Detention, 69 Stan. L. Rev.

711, 713 (2017). The Justice Department has found,

meanwhile, that jailed individuals suffer every major

type of chronic condition and infectious disease at higher

rates than others. Maruschak et al., Medical Problems

of State and Federal Prisoners and Jail Inmates, 201112, at 2-3, Bureau of Justice Statistics (rev. Oct. 4, 2016).

Empirical research also indicates that those convicted

following pretrial detention receive longer sentences

than those convicted after being free pretrial. See Heaton et al., supra, at 747, 748 tbl. 3; Stevenson, Distortion

of Justice: How the Inability to Pay Bail Affects Case

Outcomes, 34 J. Law Econ & Org. 511, 527-528 & tbl. 2

(2018). After they are freed, moreover, those who were

jailed pretrial earn less on average than arrestees who

avoided pretrial detention—a 40% decrease in earnings,

one study found, see Collateral Costs: Incarceration’s

Effect on Economic Mobility 11, The Pew Charitable

Trusts (2010).

Because of these and other dire consequences, pretrial detainees are more likely to plead guilty—regardless of whether they are guilty—to gain speedy release.

See ODonnell, 251 F.Supp.3d at 1157-1158. For those

who don’t plead, pretrial detention increases the likelihood of conviction, by hindering access to counsel, witnesses, and exculpatory evidence. See Barker, 407 U.S.

at 533. One study found that, controlling for other factors, pretrial detention is associated with a 25% increase

in the likelihood of conviction, and leads to more crime in

34

the future. Heaton et al., supra, at 744; accord

D’Abruzzo, The Harmful Ripples of Pretrial Detention.

Nor are the harms from pretrial detention limited to

those detained (and their loved ones). Detention also

burdens “society[,] which bears the direct and indirect

costs of incarceration.” Rosales-Mireles v. United

States, 138 S.Ct. 1897, 1907 (2018). These costs—including the money needed to pay for mass jailing and the fact

that those detained will more likely commit crimes in the

future—also come with little or no benefit, as experts

agree that there is no “link between financial conditions

of release and appearance at trial or law-abiding behavior before trial.” ODonnell, 892 F.3d at 162; see also

ODonnell, 251 F.Supp.3d at 1121-1122, 1152.

The Eleventh Circuit tried to minimize these myriad

harms, stating that people arrested in Cullman County

who cannot afford to buy their pretrial freedom are

locked up for only “a short time period,” App.2a, or “a

brief time period,” App.53a, before an initial appearance.

But pretrial detention in Cullman County is assuredly

not “short” or “brief”; the record shows that although arrestees were typically given a pro forma initial appearance within 72 hours, they were then typically detained

for weeks before having any opportunity to actually be

heard on why they should not be detained pretrial. In

any event, this Court has repeatedly recognized that

“‘[a]ny amount of actual jail time’” imposes “exceptionally severe consequences for the incarcerated individual.” Rosales-Mireles, 138 S.Ct. at 1907.

That is simply common sense. Research demonstrates that even having to spend “only” 48 to 72 hours

in jail so destabilizes people’s lives that they become significantly more likely to commit crime for years in the

future. See Heaton et al., supra, at 717-718. Moreover,

35

an inability to care for young children is obviously a huge

problem even if it is “only” for a few days. Equally commonsensical is the notion that “[m]any detainees lose

their jobs even if jailed for a short time.” Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale

L.J. 1334, 1356-1357 (2014). And such a loss of employment has cascading effects: “While a fired worker may

find employment elsewhere, doing so will take some time

and is likely to be burdened by the questionable circumstances under which he left his previous job.” Cleveland

Board of Education v. Loudermill, 470 U.S. 532, 543

(1985). In the meantime, “[w]ithout income, the defendant and his family … may … lose housing, transportation, and other basic necessities.” Wiseman, supra, at

1356-1357. Put simply, the panel’s seeming dismissiveness of the harms of pretrial detention was unwarranted,

and does nothing to undermine the critical importance of

the issues here—or to excuse the panel’s departure from

decisions of this Court and others.

36

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ALEC KARAKATSANIS

KATHERINE HUBBARD

CIVIL RIGHTS CORPS

1601 Connecticut Ave.

NW, Ste. 800

Washington, DC 20009

MICAH WEST

KIRSTEN ANDERSON

SOUTHERN POVERTY

LAW CENTER

400 Washington Ave.

Montgomery, AL 36130

BRANDON BUSKEY

AMERICAN CIVIL

LIBERTIES UNION

CRIMINAL LAW

REFORM PROJECT

125 Broad St.

New York, NY 10004

FEBRUARY 2023

SETH P. WAXMAN

Counsel of Record

DANIEL S. VOLCHOK

JANE E. KESSNER

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave. NW

Washington, DC 20037

(202) 663-6000

seth.waxman@wilmerhale.com

LATISHA GOTELL FAULKS

AMERICAN CIVIL LIBERTIES

UNION OF ALABAMA

P.O. Box 6179

Montgomery, AL 36106