Indigent Bail Challenge Rejected By the U.S. Court of Appeals for the Eleventh Circuit

In what may be the final chapter in the indigent bail litigation started by Former U.S. Attorney General Eric Holder in the 2015 case of Varden v. City of Clayton, Alabama, the U.S. Court of Appeals for the Eleventh Circuit rejected a challenge to the money bail system in Cullman County, Alabama – a bail system that operates with a bail schedule in place that sets out the bail guidelines for each crime.

Schultz v. Cullman, Alabama, a lawsuit brought by the Southern Poverty Law Center, Civil Rights Corp, and the ACLU challenged the Cullman County, Alabama bail system as being unconstitutional by claiming defendants were being “jailed simply because they could not afford bail.”  The U.S. Court of Appeals for the Eleventh Circuit did not agree.

We begin this analysis by noting that the right to pretrial release is not absolute. Rather, it is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty.

A defendant, upon being booked into jail, may post bail, or may request a hearing to request that the bail be adjusted by the court. There is, however, no absolute right to release under the Cullman County system—if a defendant poses a risk of failing to appear in court or a danger to the community, then the court can maintain the bail, and thus the defendant will face being detained pending trial.

Download the Courts Opinion >  Schultz v. Cullman, Alabama

First, let’s be clear about what the Plaintiffs in these cases have been seeking all along—the absolute right to release from jail on a bail someone can afford, and if you are indigent, that would be zero.  The Eleventh Circuit had already rejected that notion, upholding a similar bail system in Walker v. Calhoun, Georgia.  In addition, the U.S. Court of Appeals for the Fifth Circuit held, that of this right to an affordable bail, no such right was in view.  It seemed like a long shot that the same appellate court that upheld the bail system in Calhoun, Georgia was going to find a similar one unconstitutional in Cullman County, Alabama.

On the merits, the Court reminded us that, "No one disputes that Cullman County maintains a compelling interest in ensuring that pretrial detainees appear for trial and do not pose a risk of danger to their community while on release.”  The question in the appeal was instead whether the government’s compelling interests in ensuring appearance and public safety might yield to an indigent defendant’s right to release on a bail that the defendant is able to post.  Said the Court: "We begin this analysis by noting that the right to pretrial release is not absolute. Rather, it is 'conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty.’”

The Court quickly dispensed with the equal protection claim of wealth-based discrimination by applying the rational basis test:  “...we conclude that indigent pretrial detainees in Cullman County are not discriminated against solely based on their inability to pay, and neither do they suffer an absolute deprivation of a meaningful opportunity to obtain pretrial release. On this point, we reiterate that bail serves an important purpose. By the posting of bail, the accused has made a showing—a financial sacrifice—that he will appear for his trial. Thus, the indigent and the non-indigent arrestees are not on equal footing—only the latter has made a showing that he will appear for his trial, and he has made that showing by satisfying the terms of Cullman County’s master bail schedule. See Rainwater, 572 F.2d at 1057 (approving of the '[u]tilization of a master bond schedule'). In this way, pretrial detainees who do not secure immediate release are not being discriminated against due to inability to pay—they are being discriminated against for failure to ensure in the first instance their future appearance at trial.”  The Court concluded: "Our caselaw amply supports the conclusion that Cullman County’s bail system does not unconstitutionally discriminate against the indigent.”

The Plaintiffs also argued pursuant to procedural due process that all indigent arrestees who do not post bail must be heard within 48 hours.  The U.S. Court of Appeals for the Fifth Circuit adopted such a rule, but this panel of the Eleventh Circuit declined to adopt such a rule and held that a 72-hour hearing on bail satisfied the constitution.  The Court held that, "It may go without saying, but the Equal Protection Clause does not mandate that the indigent receive preferential treatment. In fact, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages. Cullman County, however, has chosen to place all arrestees on equal footing: all are released as soon as they are able to show that they are not a flight risk or danger to the community. The affluent satisfy this requirement by posting bail; the indigent do so by making what, in the eyes of the County, is an equal showing—appearing at a hearing where a judge determines their indigency, their danger level, and flight risk.”

The Court also rejected Hester’s substantive due process claim calling it a “nonstarter,” and suggesting that, "Hester cannot avoid the Supreme Court’s holding by smuggling a substantive due process claim into the Equal Protection Clause.”

This theory of the right to an affordable bail is now legally defunct, and frankly that was not in doubt leading up to this opinion.  Not a single appellate court has embraced such a notion.  While Eric Holder kicked off this debate in 2015, and now seven years later, it’s clear that he is as dead wrong about the law now as he was then.