Amicus Curiae Brief — Shannon Daves, et al., on Behalf of Themselves and All Others Similarly Situated, Petitioners v. Dallas County, Texas, et al.

No. 23-97

IN THE

Supreme Court of the United States

____________________

SHANNON DAVES, ET AL.,

v.

Petitioners,

DALLAS COUNTY, TEXAS, ET AL.,

Respondents.

____________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

____________________

BRIEF OF AMICI CURIAE

FEDERAL COURTS SCHOLARS

IN SUPPORT OF PETITIONERS

____________________

HALEY B. TUCHMAN

ABRAHAM G. KANTER

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

ANDRIANNA D. KASTANEK

Counsel of Record

JENNER & BLOCK LLP

353 N Clark St

Chicago, IL 60654

312-840-7285

AKastanek@jenner.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................... ii

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

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

ARGUMENT ...................................................................... 4

I.

The Fifth Circuit’s Abstention Decision

Contravenes Settled Law Dictating

The Opposite Result............................................... 4

A.

B.

II.

Requiring A Prompt Bail

Hearing

Before

Detaining

Individuals Pretrial Does Not

Unduly Interfere With State

Criminal Proceedings................................. 7

Petitioners Lack A Timely

Opportunity To Challenge Their

Pretrial Detention In State

Court Proceedings. ................................... 12

The Proper Application Of Younger

Has Important Consequences. ........................... 14

CONCLUSION ................................................................ 19

ii

CASES

TABLE OF AUTHORITIES

Arevalo v. Hennessy, 882 F.3d 763 (9th Cir.

2018) ....................................................................... 10

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

Bearden v. Georgia, 461 U.S. 660 (1983)............. 3, 16

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264

(1821) ....................................................................... 4

Colorado River Water Conservation

District v. United States, 424 U.S. 800

(1976) ....................................................................... 4

Gerstein v. Pugh, 420 U.S. 103 (1975) ... 6, 8, 9, 10, 12

Gibson v. Berryhill, 411 U.S. 564 (1973)........... 12, 13

Jones v. City of Clanton, 2015 WL 5387219

(M.D. Ala. Sept. 14, 2015) ................................... 16

Lexmark International, Inc. v. Static

Control Components, Inc., 572 U.S. 118

(2014) ....................................................................... 4

O’Donnell v. Harris County, 892 F.3d 147

(5th Cir. 2018) ....................................................... 17

O’Shea v. Littleton, 414 U.S. 488 (1974) .................. 11

Pugh v. Rainwater, 332 F. Supp. 1107 (S.D.

Fla. 1971) ................................................................. 9

Pugh v. Rainwater, 483 F.2d 778 (5th Cir.

1973), aff’d in part, 420 U.S. 103 (1975) ........ 9, 17

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

1978) (en banc) ...................................................... 17

iii

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

1897 (2018) ...................................................... 13, 17

Sprint Communications, Inc. v. Jacobs, 571

U.S. 69 (2013) ...................................................... 5, 6

Susan B. Anthony List v. Driehaus, 573

U.S. 149 (2014) .................................................... 4–5

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

(1987) ..................................................................... 16

Walker v. City of Calhoun, 901 F.3d 1245

(11th Cir. 2018) ..................................................... 10

Welchen v. Bonta, 630 F. Supp. 3d 1290

(E.D. Cal. 2022) .................................................... 16

Younger v. Harris, 401 U.S. 37 (1971) .. 1, 2, 4, 5, 7, 8

OTHER AUTHORITIES

E. Jason Baron et al., Pretrial Juvenile

Detention, CATO INST. (2023), https://

www.cato.org/research-briefs-economic

-policy/pretrial-juvenile-detention .................... 15

Brief for the United States as Amicus

Curiae Supporting Plaintiff-Appellee &

Urging Affirmance on the Issue

Addressed Herein, Walker v. City of

Calhoun, 682 F. App’x 721 (11th Cir.

2017) (No. 16-10521) ...................................... 16–17

Paul Heaton et al., The Downstream

Consequences of Misdemeanor Pretrial

Detention, 69 STAN. L. REV. 711 (2017) ............ 16

iv

Sanya Mansoor, ‘I Don’t Think You’re

Going to Be Eating Tonight.’ Muslims

Describe Ramadan in U.S. Prisons,

TIME (2021), https://time.com/6048056/

muslims-ramadan-prisons/ ................................. 15

Note, Bail Reform and Risk Assessment,

131 HARV. L. REV. 1125 (2018) .......................... 15

Martin H. Redish, Abstention, Separation

of Powers, and the Limits of the Judicial

Function, 94 YALE L.J. 71 (1984) ........................ 4

Fred O. Smith, Jr., Abstention in the Time

of Ferguson, 131 HARV. L. REV. 2283

(2018) ..................................................................... 17

Sandra Susan Smith et al., Mass

Incarceration and Criminalization,

HARVARD KENNEDY SCHOOL SOCIAL

POLICY DATA LAB (2021), https://www.

socialpolicylab.org/mass-incarceration ............. 16

Ram Subramanian et al., Incarceration’s

Front Door: The Misuse Of Jails In

America, VERA INST. JUST. (Feb. 2015)........... 15

Leah Wang, Chronic Punishment: The

Unmet Health Needs of People in State

Prisons, PRISON POL’Y INITIATIVE

(2022),

https://www.prisonpolicy.org/

reports/chronicpunishment.html ....................... 15

v

Leah Wang & Wendy Sawyer, New Data:

State Prisons Are Increasingly Deadly

Places, PRISON POL’Y INITIATIVE

(2022),

https://www.prisonpolicy.org/

blog/2021/06/08/prison_mortality/ ..................... 15

Zhen Zeng, Bureau of Justice Statistics,

U.S. Department of Justice, Jail

Inmates in 2021 - Statistical Tables

(Dec. 2022)............................................................. 14

1

INTEREST OF AMICI CURIAE 1

This brief is filed on behalf of professors Erwin

Chemerinsky, Martha Field, Barry Friedman, Helen

Hershkoff, Martin Redish, Joanna Schwartz, and Fred

Smith, Jr. They are federal courts scholars and law

professors with expertise in the history and scope of

federal jurisdiction and the doctrinal exceptions to those

rules crafted by this Court, including abstention under

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

recognized leaders in their academic fields and write

extensively about federal jurisdiction, justiciability

doctrines, the history and development of abstention

doctrines in federal jurisprudence, and the relationship

between these doctrines and the role of the federal

courts in safeguarding federally protected rights. Their

interest in this case is that of friends of this Court.

Amici’s names, titles, and institutional affiliations

are listed below for identification purposes only. Amici

join this brief in their individual capacities.

Erwin Chemerinsky is Dean of UC Berkeley School

of Law and the Jesse H. Choper Distinguished Professor

of Law.

Pursuant to this Court’s Rule 37.2, counsel of record for all parties

received notice of amici’s intention to file this brief at least 10 days

prior to the due date. Pursuant to this Court’s Rule 37.6, counsel for

amici 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

amici curiae or their counsel has made a monetary contribution

intended to fund the preparation or submission of this brief. Amici

file this brief as individuals and not on behalf of the institutions with

which they are affiliated.

1

2

Martha Field is the Langdell Professor of Law at

Harvard Law School.

Barry Friedman is the Jacob D. Fuchsberg Professor

of Law at NYU School of Law. He also is the Founding

Director of the Policing Project at NYU School of Law.

Helen Hershkoff is the Herbert M. and Svetlana

Wachtell Professor of Constitutional Law and Civil

Liberties at NYU School of Law.

Martin Redish is the Louis and Harriet Ancel

Professor of Law and Public Policy at Northwestern

Pritzker School of Law.

Joanna Schwartz is Professor of Law at UCLA

School of Law and the Faculty Director of the David J.

Epstein Program in Public Interest Law and Policy.

Fred Smith, Jr. is the Charles Howard Candler

Professor of Law at Emory University School of Law.

SUMMARY OF ARGUMENT

Petitioners in this case ask the Court to decide the

important question of whether abstention under

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

courts from determining the constitutionality of a state’s

pretrial detention system. The en banc Fifth Circuit

erroneously held that it did, but its conclusion cannot be

reconciled with Younger and its progeny, which impose

an unflagging obligation on federal courts to consider

constitutional challenges to state practices that inflict

irreparable harm.

Younger abstention developed as a narrow exception

to federal jurisdiction, triggered when a state criminal

defendant challenges an ongoing prosecution in federal

3

court. That situation raises equitable concerns, including

because the federal suit has the potential to disrupt the

state’s exercise of its prosecutorial discretion. The

doctrine plays no role, however, when plaintiffs seek

relief ancillary to the state prosecution—as here, in the

context of bail.

Moreover, Younger abstention is appropriate only

when a criminal defendant has an adequate remedy at

law and will not suffer irreparable injury. Here,

Petitioners challenge Dallas County’s practice of jailing

arrestees for their inability to pay cash bail. No state

proceeding provides an adequate alternative remedy

because the means of challenging bail determinations in

Texas take weeks, if not months. In the meantime, the

arrestee, presumed innocent, is illegally detained.

The constitutionality of pretrial detention premised

on an inability to pay cash bail—the question the Fifth

Circuit abstained from deciding in the case below—has

critical consequences. Each year, across the United

States, millions of individuals are locked in local jails

because they cannot afford bail after they are arrested.

These individuals are more likely to lose their job, house,

or children, and often lack safety, health care, and

religious freedom while in jail.

Imposing these consequences on arrestees with no

individualized consideration of their alleged crime or

circumstances is likely unconstitutional. See Bearden v.

Georgia, 461 U.S. 660 (1983). But the constitutionality of

this practice is now impervious to review in federal

courts throughout the Fifth Circuit because that circuit

misapplied Younger.

4

This Court should grant certiorari to ensure that

federal courts fulfill their obligation to decide

constitutional questions of such great importance. As

Younger itself explained, where the “threat to [a]

plaintiff’s federally protected rights” is “great and

immediate,” and is “one that cannot be eliminated by his

defense against a single criminal prosecution,” that

threat has “always been considered sufficient to justify

federal intervention.” 401 U.S. at 46, 48 (internal

quotation marks omitted). Such is the case here.

I.

ARGUMENT

The Fifth Circuit’s

Contravenes Settled

Opposite Result.

Abstention Decision

Law Dictating The

Federal courts have a “virtually unflagging

obligation … to exercise the jurisdiction given them.”

Colo. River Water Conservation Dist. v. United States,

424 U.S. 800, 817 (1976). This obligation remains as true

today as it was more than two centuries ago, when Chief

Justice Marshall first remarked that federal courts

“have no more right to decline the exercise of

jurisdiction which is given, than to usurp that which is

not given.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,

404 (1821). 2 Indeed, over the past decade, this Court has

thrice unanimously reaffirmed that principle. See

Lexmark Int’l, Inc. v. Static Control Components, Inc.,

572 U.S. 118, 126 (2014); Susan B. Anthony List v.

See also Martin H. Redish, Abstention, Separation of Powers, and

the Limits of the Judicial Function, 94 YALE L.J. 71, 114 (1984)

(explaining that “judge-made abstention presents a considerably

greater risk of judicial usurpation”).

2

5

Driehaus, 573 U.S. 149, 167 (2014); Sprint Commc’ns,

Inc. v. Jacobs, 571 U.S. 69, 77 (2013).

Younger abstention developed as a narrow exception

to the obligation to exercise jurisdiction, in the context

of injunctions against state criminal prosecutions. See

Younger, 401 U.S. at 40–41. Outside of that unique

situation, its application is limited to “exceptional

circumstances.” Sprint, 571 U.S. at 78 (quoting New

Orleans Pub. Serv., Inc. v. Council of New Orleans

(NOPSI), 491 U.S. 350, 368 (1989)). In fact, this Court

has made clear that, in the context of Younger,

“abstention from the exercise of federal jurisdiction is

the ‘exception, not the rule.’” Id. at 82 (quoting Haw.

Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)); see also

Pet. App. 39a (Daves v. Dallas Cnty., 64 F.4th 616, 639

(5th Cir. 2023) (en banc) (Southwick, J., concurring))

(“[A] clear purpose of Sprint was to stop abstention

proliferation.”).

Sprint identified three narrow types of proceedings

in which Younger may preclude federal jurisdiction:

(1) where “there is a parallel, pending state criminal

proceeding,” in which case “federal courts must refrain

from enjoining the state prosecution”; (2) “certain ‘civil

enforcement proceedings’”; and (3) pending “‘civil

proceedings involving certain orders that are uniquely

in furtherance of the state courts’ ability to perform

their judicial functions.’” 571 U.S. at 72–73, 78 (quoting

NOPSI, 491 U.S. at 367–68). This Court has never

“applied Younger outside these three ‘exceptional’

categories,” and Sprint explicitly held that they

henceforth “define[d] Younger’s scope.” Id. at 78. Here,

the Fifth Circuit relied on the first category, concluding

6

that relief would interrupt an ongoing criminal

proceeding. Pet. App. 13a & n.17.

Younger’s limited scope is further underscored by

the discretionary factors identified by the Court in

Sprint: Even if a case falls into one of the three

aforementioned categories, abstention is warranted only

when a federal ruling would interrupt an “ongoing state

judicial proceeding” and when that state forum

“provides an adequate opportunity to raise federal

challenges.” 571 U.S. at 81 (internal quotation marks and

citations omitted).

In light of these principles, the Fifth Circuit erred for

two reasons. First, the federal adjudication sought—a

finding that Dallas County’s practice of jailing arrestees

for their inability to pay cash bail is unconstitutional—

will not interrupt a criminal proceeding. As this Court

has previously recognized, when a federal constitutional

claim concerns only pretrial detention, as here, the

constitutional ruling does not intrude upon the criminal

prosecution or otherwise compromise its validity.

Gerstein v. Pugh, 420 U.S. 103, 108 n.9 (1975). In contrast

to disrupting criminal proceedings, the indigent

individuals in this case aim instead to attain prompt

proceedings. Second, the underlying state proceeding

does not provide a timely, and therefore adequate, forum

for individuals arrested in Dallas County to raise

constitutional objections. By the time they are able to

challenge the unconstitutional process that led to their

unlawful detention, they will have already experienced

serious, irreparable harm.

For these reasons, this case presents a pressing,

important issue warranting this Court’s review. Amici

7

urge this Court to grant certiorari to correct the Fifth

Circuit’s holding contradicting this Court’s settled law

on federal abstention.

A.

Requiring A Prompt Bail Hearing

Before Detaining Individuals Pretrial

Does Not Unduly Interfere With State

Criminal Proceedings.

We begin with the history of Younger abstention,

which provides critical context against which to contrast

the present case.

In Younger, this Court considered whether a federal

district court properly enjoined California’s prosecution

of a criminal defendant who claimed the state’s

prosecution violated his federal constitutional rights. 401

U.S. at 38–39. The Court concluded that federal courts

cannot interfere with state criminal proceedings in this

way. It explained then-existing precedents as

establishing:

Federal injunctions against state criminal

statutes, either in their entirety or with respect

to their separate and distinct prohibitions, are not

to be granted as a matter of course, even if such

statutes are unconstitutional. No citizen or

member of the community is immune from

prosecution, in good faith, for his alleged criminal

acts.

Id. at 46 (internal quotation marks omitted).

The alternative, the Court explained, would “strip[]”

the states of “all power to prosecute even the socially

dangerous and constitutionally unprotected conduct.”

8

Id. at 50–51. Such an outcome was improper when “the

injury [the defendant] faces” during the state’s

prosecution “is solely that incidental to every criminal

proceeding brought lawfully and in good faith.” Id. at 49

(internal quotation marks omitted).

In other words, Younger abstention is premised on

the equitable considerations that arise when a state

criminal defendant challenges an ongoing prosecution in

federal court. Once invoked, Younger requires federal

restraint until the state prosecution concludes. But by

contrast, Younger itself acknowledged that these

equitable considerations presuppose that “the moving

party has an adequate remedy at law and will not suffer

irreparable injury” in the face of abstention. Id. at 43–44.

Where instead the “threat to the plaintiff’s federally

protected rights” is “great and immediate,” and is “one

that cannot be eliminated by his defense against a single

criminal prosecution,” the threat is “sufficient to justify

federal intervention.” Id. at 46, 48 (internal quotation

marks omitted).

In the context of criminal proceedings, this Court

reaffirmed Younger’s limited scope in Gerstein v. Pugh,

420 U.S. at 103. The Court here need look no further than

that case to conclude that, when the government invokes

Younger abstention on the grounds that federal review

interferes with a criminal proceeding, abstaining from

such review is appropriate only where a state criminal

defendant pursues an unnecessary federal collateral

challenge to a state prosecution itself.

In Gerstein, a class of individuals arrested and

detained “for a substantial period” before receiving

probable cause hearings sued Dade County officials,

9

alleging that Florida’s pretrial detention practices

violated their Fourth and Fourteenth Amendment

rights. Id. at 106. The class sought declaratory and

injunctive relief in the form of a finding that arrested

individuals have a constitutional right to a probable

cause hearing and an order requiring state authorities to

“give them a probable cause determination” before their

extended detention. Id. at 107 n.6. Much like Petitioners

here, one of the named plaintiffs was detained “because

he was unable to post a $4,500 bond.” Id. at 105.

While the government argued that the district court

should abstain from deciding the class’s claims, the

district court granted an injunction—which required

Dade County officials to give the named plaintiffs an

immediate preliminary hearing to determine probable

cause for future detention—because the Gerstein

plaintiffs did not ask the court to “enjoin a prosecution.”

Pugh v. Rainwater, 332 F. Supp. 1107, 1111 (S.D. Fla.

1971). They “instead pray[ed] for a declaration of

procedural rights and an injunction from the continued

denial thereof.” Id. On appeal, while the Fifth Circuit

stayed the injunction on other grounds, that court

affirmed the district court’s conclusion that Younger was

inapposite. See Pugh v. Rainwater, 483 F.2d 778, 781–82,

790 (5th Cir. 1973). This Court then affirmed the district

court’s decision to review the constitutionality of Dade

County’s practices. Gerstein, 420 U.S. at 103.

The Court explained that Younger posed no barrier

to the injunction:

The District Court correctly held that

respondents’ claim for relief was not barred by

the equitable restrictions on federal intervention

10

in state prosecutions, Younger v. Harris, 401 U.S.

37 … (1971). The injunction was not directed at

the state prosecutions as such, but only at the

legality of pretrial detention without a judicial

hearing, an issue that could not be raised in

defense of the criminal prosecution. The order to

hold preliminary hearings could not prejudice the

conduct of the trial on the merits.

420 U.S. at 108 n.9.

There is no conceivable daylight between this

Court’s approach in Gerstein and the proper resolution

of Petitioners’ suit. Younger is implicated when the

relief requested, in effect, is immunity from state

prosecution. This type of relief strikes at the heart of the

state’s power to prosecute. By contrast, as this Court

made clear in Gerstein, relief ancillary to the

prosecution—such as a probable cause hearing—does

not implicate Younger’s equitable restrictions because it

could be granted without impacting the “trial on the

merits.” Id.

This same conclusion holds with respect to pretrial

release on bond or bail. “Regardless of how the bail issue

is resolved, the prosecution will move forward

unimpeded.” Arevalo v. Hennessy, 882 F.3d 763, 766 (9th

Cir. 2018). As Petitioners note, this is exactly “why

federal bail orders are immediately appealable.” Pet. 17

(citing Stack v. Boyle, 342 U.S. 1, 6 (1951)); see also

Walker v. City of Calhoun, 901 F.3d 1245, 1254 (11th Cir.

2018) (finding no undue interference because plaintiff did

“not ask[] to enjoin any prosecution” and instead

“merely s[ought] prompt bail determinations for himself

and his fellow class members”).

11

The case cited on the other side of this dispute,

O’Shea v. Littleton, 414 U.S. 488 (1974), decided a year

before Gerstein, is different in degree and kind from both

Gerstein and the question Petitioners pose here. The

plaintiffs in O’Shea sought an order that would enjoin

statewide practices applicable to setting bonds,

imposing criminal sentences, and setting fees for jury

trials. Id. at 492. That relief would have required an

“ongoing audit of state criminal proceedings” and

“continuous supervision by the federal court over …

conduct” in “future criminal trial proceedings,” and thus

constituted “unwarranted anticipatory interference in

the state criminal process.” Id. at 500–01. That was so,

not merely because it concerned an issue adjacent to an

underlying criminal prosecution, but because granting

the relief requested would have resulted in “continuous

or piecemeal interruptions of the state proceedings.”

Id. at 500.

In contrast, an order simply requiring prompt

pretrial hearings, as Gerstein later held, does not

demand the same piecemeal supervision or interference

with criminal prosecutions. Ongoing criminal

prosecutions may continue undisturbed. No ongoing

proceeding of any sort must cease if federal relief is

reinstated in this case. As in Gerstein, far from

interrupting a criminal proceeding, Petitioners seek

prompt hearings wherein individuals who are arrested

can press their legal case in a state forum.

B.

12

Petitioners Lack A Timely Opportunity

To Challenge Their Pretrial Detention In

State Court Proceedings.

That Petitioners’ suit poses no undue interference

with the state’s underlying criminal proceedings is

reason enough to find that abstention is unwarranted

here. But Younger abstention is independently barred

by Petitioners’ lack of a timely, and thus adequate,

opportunity to challenge their pretrial detention in state

court proceedings.

In Gibson v. Berryhill, 411 U.S. 564 (1973), this Court

held that Younger abstention “presupposes the

opportunity to raise and have timely decided by a

competent state tribunal the federal issues involved.” Id.

at 577 (emphasis added). When that “predicate”

opportunity is unavailable, so too is abstention. Id. Two

years later, in Gerstein, the Court again emphasized the

importance of timely relief in assessing whether the

defendant has a suitable alternative. The Gerstein

majority noted the state’s pretrial practices often

resulted in individuals being detained without a hearing

for a month or more, 420 U.S. at 105–06, before holding

that “a judicial determination of probable cause” was “a

prerequisite to [an] extended restraint of liberty”

pretrial, id. at 114 (emphasis added). The concurring

opinion also described its agreement with the relevant

parts of the Gerstein majority as premised on the

“Constitution clearly requir[ing] at least a timely

judicial determination of probable cause as a

prerequisite to pretrial detention.” Id. at 126 (Stewart,

J., concurring).

13

Here, the Fifth Circuit fundamentally erred in

assuming that state proceedings, even if not timely

available to Petitioners, could suffice to protect

Petitioners’ constitutional rights. They cannot. As this

Court itself has explained, the availability of even a

competent state tribunal that provides for “judicial

review … at the conclusion of the … proceedings” cannot

warrant abstention if the individual will suffer

“irreparable damage” in the interim. Gibson, 411 U.S. at

577 & n.16 (internal quotation marks omitted).

Petitioners have suffered and will continue to suffer

irreparably absent federal jurisdiction. Individuals who

are arrested in Dallas County may be detained for days,

weeks, or “sometimes months” before their initial bail

determinations can be reviewed by a judge. Pet. 21

(quoting Pet. App. 172a (Daves v. Dallas Cnty., 2022 WL

2473364, at *3 (N.D. Tex. July 6, 2022))). The fact that,

after some indefinite period of time, individuals may

have an opportunity to raise their claims on appeal or

habeas review does nothing to address the fact that

extended pretrial detention without cause “is

abhorrent,” Pet. App. 45a (Daves, 64 F.4th at 641

(Southwick, J., concurring)), and as explained infra,

constitutes irreparable harm. As this Court has

recognized, “any amount of actual jail time is significant,

and has exceptionally severe consequences for the

incarcerated individual and for society which bears the

direct and indirect costs of incarceration.” RosalesMireles v. United States, 138 S. Ct. 1897, 1907 (2018)

(cleaned up). This is so not only for the wealthy and the

powerful, but also for our great nation’s less fortunate.

II.

14

The Proper Application Of Younger Has

Important Consequences.

Pretrial detention premised on an inability to pay

cash bail irreparably harms hundreds of thousands of

people for prolonged periods of time.

In Dallas County alone, around 2,500 arrestees are

detained in jail every day. 3 They are detained after lessthan-a-minute long arraignments, during which they

lack counsel and have no opportunity to challenge their

bail, set based on a uniform schedule. Pet. 5. And they

are subject to confinement no matter their ability to pay,

or the danger (or lack thereof) they pose to the public.

None of these practices have changed after Texas

enacted S.B. 6. 4 See Pet. 9.

Across the nation, the biggest consequence of

uniform pretrial detention is its most obvious. According

to the Bureau of Jail Inmates, hundreds of thousands of

people are locked in local jails on any given day in the

United States, and roughly 10 million are jailed on an

annual basis. 5 Importantly, the Vera Institute has found

that “[m]oney, or the lack thereof, is now the most

important factor in determining whether someone is

held in jail pretrial” and that “the majority of defendants

Brief in Support of Plaintiffs’ Motion for Class Certification at 6,

Daves v. Dallas Cnty., No. 18-cv-154 (N.D. Tex. Jan. 21, 2018), ECF

No. 2-1.

3

Amici take no position on the second Question Presented,

regarding mootness.

4

Zhen Zeng, Bureau of Just. Stat., U.S. Dep’t of Just., Jail Inmates

in 2021 - Statistical Tables, at 7, tbl. 1 (Dec. 2022).

5

15

cannot raise the money quickly or, in some cases, at all.” 6

The average length of pretrial detention spans 50 to 250

days. 7 For each of these days, every person detained

before trial is irreparably deprived of their freedom

despite their presumption of innocence.

Pretrial detention also has irreparable collateral and

fiscal consequences. Those detained before trial are

more likely to lose their job, their house, or their

children.8 While in detention, they may be unsafe, 9 are

frequently unable to exercise their religion, 10 and may

lack proper medical care. 11 And, as this Court has

observed, someone detained pretrial may be “hindered

in his ability to gather evidence, contact witnesses, or

otherwise prepare his defense.” Barker v. Wingo, 407

U.S. 514, 533 (1972).

Ram Subramanian et al., Incarceration’s Front Door: The Misuse

of Jails in America, VERA INST. JUST., 32 (Feb. 2015).

6

E. Jason Baron et al., Pretrial Juvenile Detention, CATO INST.

(2023), https://www.cato.org/research-briefs-economic-policy/pre

trial-juvenile-detention.

7

Note, Bail Reform and Risk Assessment, 131 HARV. L. REV. 1125,

1128 (2018).

8

Leah Wang & Wendy Sawyer, New Data: State Prisons Are

Increasingly Deadly Places, PRISON POL’Y INITIATIVE (2022),

https://www.prisonpolicy.org/blog/2021/06/08/prison_mortality/.

9

E.g., Sanya Mansoor, ‘I Don’t Think You’re Going to Be Eating

Tonight.’ Muslims Describe Ramadan in U.S. Prisons, TIME

(2021), https://time.com/6048056/muslims-ramadan-prisons/.

10

Leah Wang, Chronic Punishment: The Unmet Health Needs of

People in State Prisons, PRISON POL’Y INITIATIVE (2022),

https://www.prisonpolicy.org/reports/chronicpunishment.html.

11

16

Pretrial detention has public costs, too. Evidence

suggests that pretrial detention increases crime, as such

detention, whether resulting in a conviction or not, is

correlated with future convictions. 12 And pretrial

detention costs taxpayers $14 billion each year. 13

Pretrial detention systems similar to Dallas County’s

are likely unconstitutional. 14 A State may not “imprison

a person solely because he lack[s] the resources to pay”

a fine or fee. Bearden v. Georgia, 461 U.S. 660, 667–68

(1983). And defendants who, awaiting trial, have not

been found guilty, have an especially “strong interest in

liberty” that necessitates making pretrial detention “the

carefully limited exception” to post-arrest release.

United States v. Salerno, 481 U.S. 739, 750, 755 (1987)

(holding the pretrial detention provisions of the federal

system sufficiently narrow to fall within that

exception).15 Failing to “exhibit regard for [these]

Paul Heaton et al., The Downstream Consequences of

Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 714–15

(2017).

12

Sandra Susan Smith et al., Mass Incarceration and

Criminalization, HARVARD KENNEDY SCHOOL SOCIAL POLICY

DATA

LAB

(2021),

https://www.socialpolicylab.org/massincarceration.

13

See Welchen v. Bonta, 630 F. Supp. 3d 1290, 1305 (E.D. Cal. 2022);

Jones v. City of Clanton, 2015 WL 5387219, at *2–3 (M.D. Ala. Sept.

14, 2015).

14

See also Brief for the United States as Amicus Curiae Supporting

Plaintiff-Appellee & Urging Affirmance on the Issue Addressed

Herein at 13, Walker v. City of Calhoun, 682 F. App’x 721 (11th Cir.

2017) (No. 16-10521) (“[A] bail scheme that imposes financial

conditions, without individualized consideration of ability to pay and

15

17

fundamental rights” can erode “public perception of

fairness and integrity in the justice system.” RosalesMireles, 138 S. Ct. at 1907. 16

However, this constitutional issue remains

impervious to review by every federal district court

across the Fifth Circuit because improper application of

Younger prevents percolation. In 1973, the circuit held

that arrestees could not be jailed without prompt

probable cause hearings. Pugh v. Rainwater, 483 F.2d

778, 788 (5th Cir. 1973), aff’d in part, 420 U.S. 103 (1975).

In 1978, the circuit, sitting en banc, ruled that indigent

arrestees did not need to be presumptively released

without posting bail; but the decision noted, in dicta, that

uniform bail schedules which lack individualized

consideration of arrestees’ circumstances “infringe[] on

both due process and equal protection requirements.”

Pugh v. Rainwater, 572 F.2d 1053, 1057–58 (1978) (en

banc). After lengthy litigation, the issue of the

constitutionality of uniform bail schedules came

squarely before the circuit in O’Donnell v. Harris

County, 892 F.3d 147 (5th Cir. 2018), and the panel held

that such schedules violated both the Due Process and

Equal Protection Clauses. Id. at 157–63. But in light of

the circuit’s decision in this case, which overruled

whether such conditions are necessary to assure appearance at trial,

violates the Fourteenth Amendment.”).

See also Fred O. Smith, Jr., Abstention in the Time of Ferguson,

131 HARV. L. REV. 2283, 2356 (2018) (“[W]hen a sense of procedural

fairness is illusory, this fosters a sense of second-class citizenship,

increases the likelihood people will fail to comply with legal

directives, and induces anomie in some groups that leaves them

with a sense of statelessness.”).

16

18

O’Donnell on the grounds that the panel should have

abstained from deciding the constitutional questions

involved, see Pet. App. 23a–24a, the Fifth Circuit is now

back where it was in 1978—without an answer to the

question of the constitutionality of uniform bail

schedules, left only with related but differentiable

precedent and on-point but nonbinding dicta.

If this Court correctly holds that Younger does not

prevent a federal court from considering the

constitutionality of Dallas County’s pretrial detention

system, then numerous arrestees can have claims about

their fundamental liberty interests heard, and Dallas

County itself will learn whether its practices are

unconstitutional. These considerations alone—not to

mention the consequences for pretrial detention systems

in other circuits—merit the Court’s consideration of the

Younger issue.

19

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

HALEY B. TUCHMAN

ABRAHAM G. KANTER

JENNER & BLOCK LLP

1099 New York Ave.,

NW Suite 900

Washington, DC 20001

ANDRIANNA D. KASTANEK

Counsel of Record

JENNER & BLOCK LLP

353 N Clark St

Chicago, IL 60654

312-840-7285

AKastanek@jenner.com

Counsel for Amici Curiae