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ODonnell v. Harris County

United States District Court, S.D. Texas, Houston Division

April 28, 2017

MARANDA LYNN ODONNELL, et al., On behalf of themselves and all other similarly situated, Plaintiffs,
v.
HARRIS COUNTY, TEXAS, et al., Defendants.

          MEMORANDUM AND OPINION SETTING OUT FINDINGS OF FACT AND CONCLUSIONS OF LAW

          Lee H. Rosenthal, Chief United States District Judge

         Introduction ................................................................... 3

         I. Findings of Fact .......................................................... 8

         A. Procedural Background .............................................. 8

         B. The Evidence in the Record.. ........................................ 10

         1. The Parties ................................................. 10

         2. The Fact Witnesses. . ........................................ 15

         3. The Expert Witnesses. . ...................................... 18

         4. Overview of the Factual and Legal Issues ......................... 19

         C. The Historical Development of Bail in the United States and in Harris County ................................................................ 23

         1. The Constitutionalization of Bail.. .............................. 23

         2. Statutory and Judicial Bail Reform: Pretrial Services, Probable Cause Hearings, and “Meaningful” Alternatives to Secured Money Bail. . . . . . 25

         3. Bail at the Federal Level. . .................................... 31

         4. Bail under Texas Law. . ...................................... 35

         5. Recent Distinctions Drawn Between Bail and Preventive Detention. . . . 38

         a. Washington, D.C... .................................... 38

         b. New Mexico.. ........................................ 40

         c. New Jersey.. ......................................... 41

         d. New Orleans.. ........................................ 42

         e. Maryland. . .......................................... 43

         f. Alabama.. ........................................... 44

         g. Calhoun, Georgia. . .................................... 46

         h. Conclusion ........................................... 49

         D. The Use of Bail in Harris County Misdemeanor Pretrial Detention ........... 50

         1. The Statutory Framework. . ................................... 50

         2. Arrest and Booking. . ........................................ 55

         3. The Probable Cause and Bail-Setting Hearing.. .................... 63

         4. The First Appearance Before a County Judge ...................... 77

         5. Disposition of Misdemeanor Cases .............................. 83

         6. The Use of Bail to Detain. . ................................... 87

         E. The Population Statistics of Misdemeanor Detainees at Each Stage in the Post-arrest Process ..................................................... 95

         1. Arrestees Detained More than 24 Hours Before the Probable Cause Hearing.. .................................................. 95

         2. Arrestees Detained More than 48 Hours Before a Bail Review. . ...... 97

         3. Arrestees Detained Until Case Disposition ........................ 99

         4. Arrestees Detained “Because of” Indigence. . .................... 100

         5. Bond Forfeitures and Re-Arrests for New Criminal Activity. . ....... 106

         F. The Effects of Pretrial Detention on Misdemeanor Defendants Who Cannot Pay Secured Money Bail.. ............................................. 112

         G. Comparisons to Other Jurisdictions.. ................................. 115

         H. Proposed Bail Reforms. . .......................................... 117

         1. Changes to Risk Assessment .................................. 117

         2. Changes to the System's Efficiency.. ........................... 120

         3. Changes to the Probable Cause Hearings. . ...................... 122

         4. Texas House Bill 3011 / Senate Bill 1338.. ...................... 123

         I. Conclusions on Findings of Fact ..................................... 126

         II. Conclusions of Law ..................................................... 132

         A. The Legal Standards.. ............................................. 132

         B. Likelihood of Success on the Merits .................................. 133

         1. The Standard of Review.. .................................... 133

         a. Equal Protection.. .................................... 134

         b. Due Process ......................................... 142

         2. The Constitutional Requirements. . ............................ 143

         a. Equal Protection.. .................................... 143

         b. Due Process ......................................... 145

         c. Excessive Bail ....................................... 156

         3. Harris County Policies that Violate Constitutional Requirements.. . . . . 158

         a. Municipal Liability under § 1983. . ...................... 158

         b. The County Judges' Policies and Customs: Equal Protection.. . 160

         c. The County Judges' Policies and Customs: Due Process. . . . . . 167

         d. The Sheriff's Policies under Equal Protection and Due Process ................................................... 169

         4. Judicial Conduct that Violates Constitutional Requirements. . ....... 171

         5. Conclusion on Likelihood of Success on the Merits ................ 172

         C. Irreparable Injury ................................................. 174

         D. Balancing the Harms .............................................. 175

         E. The Public Interest ................................................ 178

         F. Bond.. ......................................................... 178

         III. Remedy. . ............................................................ 178

         IV. Conclusion ............................................................ 190

         A. Summary Judgment ............................................... 190

         B. Preliminary Injunction ............................................. 192

         Introduction

         “Twenty years ago, not quite one-third of [Texas's] jail population was awaiting trial. Now the number is three-fourths. Liberty is precious to Americans, and any deprivation must be scrutinized. To protect public safety and ensure that those accused of a crime will appear at trial, persons charged with breaking the law may be detained before their guilt or innocence can be adjudicated, but that detention must not extend beyond its justifications. Many who are arrested cannot afford a bail bond and remain in jail awaiting a hearing. Though presumed innocent, they lose their jobs and families, and are more likely to re-offend. And if all this weren't bad enough, taxpayers must shoulder the cost-a staggering $1 billion per year.” The Honorable Nathan L. Hecht, Chief Justice of the Texas Supreme Court, Remarks Delivered to the 85th Texas Legislature, Feb. 1, 2017.

         This case requires the court to decide the constitutionality of a bail system that detains 40 percent of all those arrested only on misdemeanor charges, many of whom are indigent and cannot pay the amount needed for release on secured money bail. These indigent arrestees are otherwise eligible for pretrial release, yet they are detained for days or weeks until their cases are resolved, creating the problems that Chief Justice Hecht identified. The question addressed in this Memorandum and Opinion is narrow: whether the plaintiffs have met their burden of showing a likelihood of success on the merits of their claims and the other factors necessary for a preliminary injunction against Harris County's policies and practices of imposing secured money bail on indigent misdemeanor defendants. Maranda Lynn ODonnell, Robert Ryan Ford, and Loetha McGruder sued while detained in the Harris County Jail on misdemeanor charges. They allege that they were detained because they were too poor to pay the amount needed for release on the secured money bail imposed by the County's policies and practices. (Docket Entry Nos. 3, 41, 54). They ask this court to certify a Rule 23(b)(2) class and preliminarily enjoin Harris County, the Harris County Sheriff, and-to the extent they are State enforcement officers or County policymakers-the Harris County Criminal Court at Law Judges, from maintaining a “wealth-based post-arrest detention scheme.” (Docket Entry No. 143 at 2).

         This case is difficult and complex. The Harris County Jail is the third largest jail in the United States. Pls. Ex. 12(aa) at 1. Although misdemeanor arrestees awaiting trial make up about 5.5 percent of the Harris County Jail population on any given day, see id. at 13, about 50, 000 people are arrested in Harris County on Class A and Class B misdemeanor charges each year. Pls. Ex. 10(c), 2015 Pretrial Services Annual Report at 8.[1] The arrests are made by a number of law-enforcement agencies, including the Houston Police Department and the police forces of smaller municipalities, the Texas Department of Public Safety, and the Harris County Sheriff's Office. Id. Harris County's bail system is regulated by State law, local municipal codes, informal rules, unwritten customary practices, and the actions of judges in particular cases. The legal issues implicate intertwined Supreme Court and Fifth Circuit precedents on the level of judicial scrutiny in equal protection and due process cases and on the tailoring of sufficient means to legitimate ends.

         Bail has a longstanding presence in the Anglo-American common law tradition. Despite this pedigree, the modern bail-bond industry and the mass incarceration on which it thrives present important questions that must be examined against current law and recent developments. Extrajudicial reforms have caused a sea change in American bail practices within the last few years. Harris County is also in the midst of commendable and important efforts to reform its bail system for misdemeanor arrests. The reform effort follows similar work in other cities and counties around the country. This work is informed by recent empirical data about the effects of secured money bail on a misdemeanor defendant's likely appearance at hearings and other law-abiding conduct before trial, as well as the harmful effects on the defendant's life.

         The plaintiffs contend that certainly before, and even with, the implemented reforms, Harris County's bail system for misdemeanor arrests will continue to violate the Constitution. This case is one of many similar cases recently filed around the country challenging long-established bail practices. Most have settled because the parties have agreed to significant reform. This case is one of the first, although not the only one, that requires a court to examine in detail the constitutionality of a specific bail system for misdemeanor arrestees. This case is also one of the most thoroughly and skillfully presented by able counsel on all sides, giving the court the best information available to decide these difficult issues.

         One other complication is worth noting at the outset. Since this case was filed, the 2016 election replaced the Harris County Sheriff and the presiding County Judge of Criminal Court at Law No. 16. (Docket Entry Nos. 158, 168). The new Sheriff and County Judge have taken positions adverse to their codefendants, although each continues to oppose certain aspects of the plaintiffs' request for preliminary injunctive relief.[2] Nonparty County officials, including the newly elected Harris County District Attorney and one of the Harris County Commissioners, have filed amicus briefs supporting the plaintiffs. (Docket Entry Nos. 206, 272). Harris County's Chief Public Defender has filed a declaration supporting the defendants. Def. Ex. 23. The lines of affinity and adversity between the defendants and their nonparty County colleagues are not always clear.

         Even with the factual and legal complexities, at the heart of this case are two straightforward questions: Can a jurisdiction impose secured money bail on misdemeanor arrestees who cannot pay it, who would otherwise be released, effectively ordering their pretrial detention? If so, what do due process and equal protection require for that to be lawful? Based on the extensive record and briefing, the fact and expert witness testimony, the arguments of able counsel, and the applicable legal standards, the answers are that, under federal and state law, secured money bail may serve to detain indigent misdemeanor arrestees only in the narrowest of cases, and only when, in those cases, due process safeguards the rights of the indigent accused.

         Because Harris County does not currently supply those safeguards or protect those rights, the court will grant the plaintiffs' motion for preliminary injunctive relief. The reasons and the precise, limited relief granted are set out in detail below.

         More specifically, the court finds that:

• Harris County has a consistent and systematic policy and practice of imposing secured money bail as de facto orders of pretrial detention in misdemeanor cases.
• These de facto detention orders effectively operate only against the indigent, who would be released if they could pay at least a bondsman's premium, but who cannot. Those who can pay are released, even if they present similar risks of nonappearance or of new arrests.
• These de facto detention orders are not accompanied by the protections federal due process requires for pretrial detention orders.
• Harris County has an inadequate basis to conclude that releasing misdemeanor defendants on secured financial conditions is more effective to assure a defendant's appearance or law-abiding behavior before trial than release on unsecured or nonfinancial conditions, or that secured financial conditions of release are reasonably necessary to assure a defendant's appearance or to deter new criminal activity before trial.
• Harris County's policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution.

         The court accordingly orders that:

• Harris County and its policymakers-the County Judges in their legislative and rulemaking capacity and the Harris County Sheriff in his law-enforcement capacity-are enjoined from detaining misdemeanor defendants who are otherwise eligible for release but cannot pay a secured financial condition of release.
• Harris County Pretrial Services must verify a misdemeanor arrestee's inability to pay bail on a secured basis by affidavit.
• The Harris County Sheriff must release on unsecured bail those misdemeanor defendants whose inability to pay is shown by affidavit, who would be released on secured bail if they could pay, and who have not been released after a probable cause hearing held within 24 hours after arrest.

         The court does not order: relief in cases involving felony charges or a mix of misdemeanor and felony charges; the elimination of secured money bail; changes to Texas State law; changes to the written Harris County Criminal Courts at Law Rules of Court; modification of prior federal court orders, including the consent decree in Roberson v. Richardson; or a right to “affordable bail” under the Eighth Amendment. Instead, the relief ordered is consistent with Texas state and Harris County law as written, is required by the Equal Protection and Due Process Clauses, and is justified by the plaintiffs' evidence. The relief is narrow so as not to interfere with the improvements the County is working to implement by July 1, 2017.

         The reasons for these rulings are set out in the detailed findings and conclusions below.

         I. Findings of Fact

         A. Procedural Background

         Ms. ODonnell filed suit while she was in custody in the Harris County Jail on May 19, 2016. (Docket Entry No. 3). Ms. McGruder and Mr. Ford filed suit while they were in custody on May 21, 2016. Civil No. 16-1436. The court consolidated the actions in August 2016. (Docket Entry No. 41). The plaintiffs filed an amended complaint on September 1, 2016. (Docket Entry No. 54). After extensive briefing and two lengthy hearings on August 18 and November 28, 2016, the court issued a Memorandum and Opinion on the defendants' motions to dismiss. (Docket Entry No. 125); ODonnell v. Harris Cty., Tex., - F.Supp.3d -, 2016 WL 7337549 (S.D. Tex. Dec. 16, 2016). The court dismissed the claims against the Harris County Sheriff and the sixteen Harris County Criminal Court at Law Judges in their personal capacities. The court denied the motions to dismiss the claims against the County, the personal-capacity claims against five Harris County Hearing Officers, and the official-capacity claims against the Sheriff and the County Judges. (Id.). The court reset the preliminary injunction hearing scheduled for December 15, 2016 at the parties' request, to facilitate settlement negotiations between the parties and newly elected Harris County officials. (Docket Entry No. 109). The parties did not settle. The court held an eight-day hearing in March 2017, and the parties filed voluminous records, lengthy video recordings, and numerous briefs.

         The pending motions are the plaintiffs' motion for class certification, (Docket Entry No. 146), the defendants' motion for summary judgment, (Docket Entry Nos. 101, 104, 108), the plaintiffs' motion for a preliminary injunction, (Docket Entry No. 143), and the defendants' contingent motion for a stay pending appeal should the court grant preliminary injunctive relief, (Docket Entry No. 252). The defendants argue, principally, that there is no constitutional right to “affordable bail, ” that Harris County's post-arrest policies are subject to rational basis review, and that Harris County's policies are constitutional under any level of judicial scrutiny. (See Docket Entry Nos. 101, 161, 162, 166, 193, 256, 286). The plaintiffs argue that Harris County's system of pretrial bail and detention in misdemeanor cases violates the Equal Protection and Due Process Clauses of the United States Constitution. (See Docket Entry Nos. 143, 145, 188, 189). They do not believe their claims raise an Eighth Amendment challenge, but they argue in the alternative that the County's bail system for misdemeanor arrestees fails under the Eighth Amendment as well. (Docket Entry No. 92 at 18 n.19; No. 188 at 14 n.13).

         This Memorandum and Opinion addresses the parties' disputes on summary judgment and the plaintiffs' entitlement to preliminary injunctive relief. Separate orders address class certification and the defendants' motion to stay.

         B.The Evidence in the Record

         The motion for a preliminary injunction requires balancing the expediency demanded by the request for emergency relief with a full and fair consideration of the voluminous record. The parties submitted nearly 300 written exhibits, in addition to 2, 300 video recordings of bail-setting hearings conducted within the last year in Harris County, all admitted without objection. (Docket Entry Nos. 244, 267). Thirteen witnesses testified at the eight-day hearing, including four expert witnesses. The court admitted depositions and declarations from many other witnesses as well.

         The parties largely agree on the facts of the procedures Harris County follows after the arrest of misdemeanor defendants. Both parties' statistical experts used the same data from the County's administrative sources and largely agreed on the raw numbers produced by, and the gaps found in, the Harris County data. The parties' experts disagree about how to interpret the data. The parties disagree about the constitutional significance of the evidence about the County's bail procedures in misdemeanor cases and their effects.

         The court reviews the factual record under the applicable legal framework to resolve these disagreements and to enter the findings of fact and conclusions of law.[3]

         1. The Parties

         Maranda Lynn ODonnell, a 22-year-old single mother, was arrested on May 18, 2016 at 5:00 p.m. and charged with driving with an invalid license. Pls. Ex. 7(a). After she was booked into the Harris County Jail, she was informed that she would be released promptly if she paid a secured money bail of $2, 500 set according to the County's bail schedule, but that she would remain in jail if she did not pay either the full bail amount to the County or a premium to a bail bondsman up front. Id. Ms. ODonnell and her child struggled to meet the basic necessities of life. She received benefits from the federal government's Women, Infants, and Children program to feed her daughter. She could not afford housing, so she stayed with a friend. Id. At the time of her arrest, Ms. ODonnell was working, but it was at a new job she had held for only seven days. Id. She had no money to buy her release from detention. Id. She was otherwise eligible for release.

         Harris County Pretrial Services interviewed Ms. ODonnell at 11:52 p.m. on May 18. Pls. Ex. 8(c)(1), ODonnell Pretrial Services Report. At 3:00 a.m., on May 19, Pretrial Services completed a risk-assessment report recommending her release on a personal bond-that is, an unsecured appearance bond requiring no up-front payment for release. Id. Ms. ODonnell appeared before a Hearing Officer at 7:00 a.m., by videolink from the Harris County Jail. Pls. Ex. 4(c)(1), ODonnell Docket Sheet. The Sheriff's deputies present ordered her not to speak. Pls. Ex. 7(a). Without explanation, the Hearing Officer told her that she did not “qualify” for release on personal bond and imposed the $2, 500 scheduled amount as secured bail, meaning that she had to pay the full bail amount or a bondman's premium to be released. Pls. Ex. 8(c), ODonnell Hearing Video. When asked if she would hire her own lawyer or would be seeking help from a court-appointed lawyer, Ms. ODonnell responded, “Seeking help.” These were her only words during her 50-second hearing. Id.

         On the morning of May 20, Ms. ODonnell appeared before a County Criminal Court at Law Judge. (Docket Entry No. 31, Ex. 1). She completed an affidavit declaring her lack of assets and was found indigent for the purpose of appointing counsel. (Id.). Her bail amount was not changed or set on an unsecured basis, even though she declared on her affidavit that she remained in jail. (Id.). That same day, but after Ms. ODonnell filed this suit, an insurance underwriter for a commercial bondsman posted her bail amount. Pls. Ex. 11 at *5. This third-party payment looks like an attempt to moot her claim. See id. Ms. ODonnell was released from jail after three days in pretrial detention on the charge of driving with an invalid license. Pls. Ex. 8(c), ODonnell Docket Sheet.

         Robert Ryan Ford was arrested on May 18, 2016 at 8:00 p.m. He was charged with shoplifting from a Wal-Mart. Pls. Ex. 7(c). Mr. Ford could not pay the $5, 000 secured money bail imposed as the condition for his release from pretrial detention. Id. This was the amount specified in the bail schedule. Mr. Ford was interviewed by Pretrial Services at 10:00 a.m. the morning after his arrest, but Pretrial Services did not complete Mr. Ford's risk assessment until the next day, May 20, at 2:00 a.m. Pls. Ex. 8(c)(iii), Ford Pretrial Services Report. The risk-assessment report recommended “Detain, ” stating that Mr. Ford had “[s]afety issues that conditions can't mitigate.” Id. at *16. The form did not explain these issues nor why some combination of conditions of release could not address them. Notwithstanding the recommendation to detain, had Mr. Ford paid the $5, 000 bail-or paid a bondsman a $500 premium[4]-he would have been promptly released, regardless of “safety issues.” He could not pay the $5, 000 secured money bail or the bondsman's premium, so he remained in jail. Pls. Ex. 7(c). As intended by Pretrial Services, the secured money bail served as a pretrial detention order because Mr. Ford was too poor to pay.

         Mr. Ford did not see a Hearing Officer until May 20, 2016 at 4:00 a.m., 32 hours after his arrest. Pls. Ex. 8(c)(iii), Ford Docket Sheet. His hearing lasted less than 50 seconds. Pls. Ex. 8(c), Ford Hearing Video. He did not speak except to ask for a court-appointed lawyer. Id. His bail was confirmed at $5, 000 on a secured basis. Id.

         On May 23, 2016, Mr. Ford appeared before a County Criminal Court at Law Judge, pleaded guilty, and was sentenced to time served. Pls. Ex. 8(c)(iii), Ford Docket Sheet. He was released at 12:30 a.m. on May 24, 2016. Id. Mr. Ford was continuously detained on his misdemeanor charge for over five days, until the final disposition of his case.

         Loetha Shanta McGruder, a pregnant 22-year-old mother of two, was arrested on May 19, 2016 at 5:20 p.m. She was charged with failing to identify herself to a police officer. Pls. Ex. 7(b). Ms. McGruder was indigent. Id. She depended on federal benefits to care for her older son, who has Down's Syndrome and other medical needs, and she depended on child-support payments for her other children. Id. Ms. McGruder was not working when she was arrested. She avoided homelessness by living with her boyfriend. Id. She could not pay the $5, 000 secured money bail imposed as the condition for her release from pretrial detention. Id.

         Ms. McGruder was interviewed by Pretrial Services the morning after her arrest, at 8:40 a.m. Pls. Ex. 8(c)(ii), McGruder Pretrial Services Report. Pretrial Services completed its risk-assessment report around 1:00 p.m. with no recommendation for either release or detention. Id. Ms. McGruder appeared before a Hearing Officer at 1:00 p.m. on May 20. Pls. Ex. 8(c)(ii), McGruder Docket Sheet. She did not speak at her hearing except to discuss her need for a court-appointed lawyer. Pls. Ex. 8(c)(ii), McGruder Hearing Video. Her bail was confirmed at $5, 000 on a secured basis. Id.

         After about 87 hours in jail, Ms. McGruder appeared before a County Criminal Court at Law Judge. Pls. Ex. 8(c)(ii), McGruder Docket Sheet. She was ready to enter a guilty plea because she believed it was the fastest way to be released. Hearing Tr. 2-1:80-81, 108. Her lawyer convinced her to seek a personal bond instead. Id. At her first counseled hearing before a County Judge, Ms. McGruder was granted a personal bond-an unsecured $5, 000 bond with no up-front payment required. She was released at 7:30 p.m. the same day. Pls. Ex. 8(c)(ii), McGruder Docket Sheet. Ms. McGruder spent four full days in pretrial detention on her misdemeanor charge of failing to identify herself to a police officer.

         The plaintiffs sued Harris County under 42 U.S.C. § 1983, alleging that the County's policies have deprived them and others similarly situated of due process and equal protection by detaining them before trial on misdemeanor charges because of their inability to pay a secured money bail, and without a meaningful or timely inquiry into their inability to pay. (Docket Entry No. 54). The motions to dismiss resulted in earlier rulings on the claims against the various defendants.

• The court denied Harris County's motion to dismiss. The County may face municipal liability under § 1983 for the law-enforcement policies of its Sheriff, to the extent the Sheriff knowingly enforces invalid detention orders, and for the legislative and administrative policies of the County Judges to the extent those policies are not directly mandated by Texas law. ODonnell, 2016 WL 7337549 at *22-31.
• The court dismissed the plaintiffs' personal-capacity claim against the Harris County Sheriff but denied the motion to dismiss the official-capacity claim. Id. at *32. To the extent the Sheriff enforces facially valid but unconstitutional detention orders, the Sheriff may be liable for prospective relief under Ex parte Young, 209 U.S. 123 (1908). Id.
• The court dismissed personal-capacity claims against the sixteen Harris County Criminal Court at Law Judges, but denied the motion to dismiss the official-capacity claims against them. ODonnell, 2016 WL 7337549 at *27-28. To the extent the County Judges administratively enforce facially constitutional Texas laws, such as the Texas Code of Criminal Procedure, in an unconstitutional manner, the County Judges may be liable for prospective relief. Id. at *28, 36-37.
• The court granted the motion to dismiss the official-capacity claims against five Harris County Hearing Officers. Id. at *34-35. They remain in the suit in their personal capacities for declaratory relief only. Id.

         2. The Fact Witnesses

         The fact witnesses testified about the post-arrest process for misdemeanor defendants in Harris County, as well as the reforms to the bail system the County expects to implement by July 1, 2017. The fact witnesses and their testimony are summarized below.

• Assistant District Attorney JoAnne Musick. Ms. Musick was appointed the Sex Crime Unit Chief at the Harris County District Attorney's Office in January 2017. She has practiced criminal defense privately for over thirteen years and has served as the vice-chair of the Criminal Law & Procedure Committee of the Houston Bar Association and as a board member of the Texas Criminal Defense Lawyers Association. Ms. Musick testified about her extensive experience with Harris County pretrial processes, both as a criminal defense lawyer and as an Assistant District Attorney. Ms. Musick filed a declaration stating her observation that Harris County consistently detains misdemeanor arrestees, who are otherwise eligible to be released, because they cannot pay a secured financial condition of release. As a consequence, many indigent misdemeanor arrestees plead guilty at their first appearance as the only way to be released from pretrial detention without waiting days or weeks for another hearing. Pls. Ex. 7(g) at 4-5.
• Sheriff Ed Gonzalez. Sheriff Gonzalez was elected Harris County Sheriff in November 2016 and assumed office in January 2017. He served eighteen years with the Houston Police Department and was a Houston City Council member for three terms before his election as Sheriff. Sheriff Gonzalez testified about his experience with the post-arrest process in Harris County. Sheriff Gonzalez also filed a declaration stating his observation that Harris County consistently detains misdemeanor arrestees, who are otherwise eligible to be released, because they are too poor to pay a secured financial condition of release. Pls. Ex. 7(r) at 1-2.
• Major Patrick Dougherty. Major Dougherty was appointed as a major with the Harris County Sheriff's Office in January 2017 after serving thirty-five years with the Houston Police Department. Major Dougherty testified about his experiences with the post-arrest processes in the City of Houston and in Harris County. Major Dougherty reviewed the technology limits and overcrowded conditions in the Harris County Jail that complicate the timely transfer and presentment of misdemeanor arrestees.
• Director of Pretrial Services Kelvin Banks. Mr. Banks began work as the Director of Pretrial Services for Harris County in October 2016. He served previously as the Director of Pretrial Services for the Third Circuit Court in Wayne County, Michigan, primarily overseeing pretrial services for the City of Detroit. Mr. Banks testified about the County's current Pretrial Services program, the planned changes to Pretrial Services's risk-assessment tool, and other changes impacting the use of secured money bail in misdemeanor cases. These changes are expected to be implemented by July 1, 2017.
• Chief Hearing Officer Blanca Villagomez. Judge Villagomez has been a Harris County Hearing Officer since the position was created in 1993. She testified about her own and others' practices as Hearing Officers.
• Hearing Officer Eric Hagstette. Judge Hagstette has been a Harris County Hearing Officer for over eleven years. He was a Harris County Assistant District Attorney for ten years and a criminal defense attorney for ten years. Judge Hagstette testified about his practices as a Hearing Officer and his impressions of the pretrial process from his time as a practicing criminal lawyer.
• County Judge Darrell Jordan. Judge Jordan was elected to be the presiding judge of County Criminal Court at Law No. 16 in November 2016. He assumed office in January 2017. Judge Jordan previously practiced as a criminal defense attorney for eight years. Judge Jordan testified about his practices as a County Judge and about his past experiences as a lawyer defending misdemeanor arrestees in Harris County.
• County Judge Paula Goodhart. Judge Goodhart was appointed to be the presiding judge of County Criminal Court at Law No. 1 in 2010. She was an Assistant District Attorney for Harris County for fourteen years and a criminal defense attorney for three years. Judge Goodhart testified about her practices as a County Judge and about her past experiences practicing in the Harris County Criminal Courts at Law.
• County Judge Margaret Harris. The defendants offered the testimony of Judge Harris, the presiding judge of County Criminal Court at Law No. 5 since 2003. The parties stipulated that Judge Harris's testimony would be consistent in material respects with Judge Goodhart's testimony. Hearing Tr. 5:152.
• Dr. Marie VanNostrand. Dr. VanNostrand is a project manager for Luminosity, a consulting firm that advises pretrial services programs. Dr. VanNostrand is a former probation and parole officer and pretrial services provider. She began working as a consultant for pretrial services agencies in 2003 and through Luminosity has been consulting with Harris County to reform its pretrial processes and services since February 2015. Hearing Tr. 6-1:131. Dr. VanNostrand testified about her statistical studies on pretrial detention and about the reforms to the Harris County pretrial process planned for implementation by July 1, 2017.

         3. The Expert Witnesses

         The plaintiffs presented Dr. Stephen Demuth to testify under Rule 702 of the Federal Rules of Evidence on sociology and criminal pretrial procedure. Dr. Demuth has a doctorate in sociology with a concentration in chronology and quantitative methods of research. He is a professor of sociology at Bowling Green State University in Ohio. He has published extensively in peer-reviewed journals on pretrial criminal processes and on the appropriate use of large data sets. Dr. Demuth testified that he received no compensation for his consultation and testimony in this case. He has invested at least 150 hours of work analyzing the data Harris County has produced since the plaintiffs retained him on February 9, 2017.

         The plaintiffs also presented Judge Truman Morrison to testify under Rule 702. Judge Morrison is a Senior Judge of the Superior Court of the District of Columbia. He has served on that court for over thirty-seven years. After taking senior status in 2000, Judge Morrison has focused on misdemeanor cases. Since the late 1980s, he has led reform efforts in his court to eliminate the use of secured money bail in the D.C. criminal justice system. He has also worked to educate judicial officers and others around the country on the benefits of eliminating money bail and the harms of continuing to use it in misdemeanor cases.

         The defendants offered the testimony of Dr. Robert Morris as a Rule 702 witness in criminology. Dr. Morris holds a doctorate in criminal justice and was a professor of criminology at the University of Texas in Dallas for nine years. Since August 2016, he has been the cofounder and chief executive officer of Predicto, a company that uses machine learning to predict failures in industrial equipment. Dr. Morris testified that he has worked 45 to 50 hours analyzing data produced by Harris County since his retention and has invoiced the County $325 per hour. Hearing Tr. 4-2:156.

         The defendants also offered the testimony of Mr. Bob Wessels as a Rule 702 witness with specialized knowledge in court administration and pretrial procedures, particularly in Harris County. Mr. Wessels was the court manager of the Harris County Criminal Courts at Law for thirty-five years, until he retired in 2011. He has received numerous awards and national recognition for his work on court administration and is a former president of the National Association of Court Administrators.

         The court finds that Drs. Demuth and Morris meet the Rule 702 requirements to testify about Harris County's pretrial arrest data and system and that Judge Morrison and Mr. Wessels are qualified to testify about court administration. Specific findings about the reliability, helpfulness, and credibility of their opinions are set out in detail below.

         4. Overview of the Factual and Legal Issues

         The parties dispute three broad issues: (1) whether Harris County impermissibly sets secured money bail to serve as de facto orders of pretrial detention in misdemeanor cases; (2) whether Harris County provides misdemeanor defendants due process and equal protection in their bail settings; and (3) whether planned reforms will sufficiently address the plaintiffs' allegations of constitutional violations. Each issue raises complex questions of fact and law.

         The defendants argue that Harris County judicial officers do not intentionally use secured money bail to detain and are not recklessly indifferent to that effect of secured money bail. Instead, the defendants argue, Hearing Officers and County Judges apply the Texas Code of Criminal Procedure's requirement to consider five factors-only one of which relates to a defendant's ability to pay-in setting bail. See Tex. Code Crim. Pro. art. 17.15. The plaintiffs respond that the evidence shows Harris County judicial officers do not in fact give individualized consideration of the five factors in setting bail in each misdemeanor case, but instead routinely set secured money bail to conform to a predetermined schedule, even when it is clear that the effect will be pretrial detention.

         The parties' disputes extend beyond whether the facts show rare, occasional, or frequent individual consideration of bail in particular cases. The parties also dispute whether imposing secured money bail on an indigent or impecunious misdemeanor arrestee is a but-for cause or a proximate cause of pretrial detention if an arrestee with financial means could pay and secure prompt release. The defendants argue that virtually no misdemeanor defendant is detained before trial “solely by” or “because of” an inability to pay secured money bail. Instead, the defendant's past criminal history, prior failures to appear, or other risk factors all contribute to a judicial officer's decision to impose secured money bail at a particular amount. Under this view, the arrestee's criminal history, prior failures to appear, or other risk factors-not just the bail amount-are among the reasons for pretrial detention. (See, e.g., Docket Entry No. 162 at 15-16; No. 164 at 8-9); Hearing Tr. 1:99-100.

         The plaintiffs counter with a but-for argument. A judicial officer's decision to set secured money bail means that the misdemeanor defendant has been found eligible for release and would be released but for their inability to make the up-front payment of the secured money bail bond. The plaintiffs argue that detaining misdemeanor defendants before trial solely because of their inability to pay violates the Equal Protection Clause, because defendants with similar histories and risks but with access to money are able to purchase pretrial release. The plaintiffs contend that all rigorous studies of pretrial release in misdemeanor cases show that release on secured money bail does no more to mitigate the risk of nonappearance or of new criminal activity during pretrial release than release on unsecured or nonfinancial conditions. (See, e.g., Docket Entry No. 143 at 15-17; No. 188 at 4-7); Hearing Tr. 4-2:15-16.

         For the reasons set out below, the court finds and concludes that the plaintiffs have the better understanding of the case. A misdemeanor defendant's criminal background or risk factors may give the County a persuasive reason to detain that defendant. But an order imposing secured money bail is effectively a pretrial preventive detention order only against those who cannot afford to pay. It is not a detention order as to defendants who can pay, even if they present a similar risk of failing to appear or of committing new offenses before trial as those who cannot pay. And the reliable record evidence shows that release on secured money bail does not mitigate those risks for misdemeanor defendants better than release on unsecured or nonfinancial conditions, in Harris County or elsewhere. The issue is not a right to “affordable bail, ” as the defendants insist, but a violation of the Equal Protection and Due Process Clauses.

         The plaintiffs allege that Harris County's pretrial misdemeanor bail system violates procedural due process because: (1) misdemeanor arrestees who cannot pay the up-front amount for release on secured money bail are frequently held longer than 24 hours before any meaningful bail review, contrary to Texas law and to federal court orders; (2) misdemeanor arrestees are not able even to ask for a review of their bail in a counseled, adversarial proceeding, with an opportunity to present evidence and a right to findings on the record, until at least two or three days and often up to two weeks after their arrests; (3) misdemeanor arrestees who cannot afford their secured money bail are jailed for more than 48 hours if they do not plead guilty at their first court appearances; and (4) the County imposes secured money bail to serve as de facto detention orders, without affording misdemeanor defendants the due process protections the Constitution requires for detention orders. (See, e.g., Docket Entry No. 144 at 13-14; No. 145 at 7-9; No. 188 at 13-15).

         The defendants argue that Harris County's pretrial process is among the fastest in the nation and that its bail practices are not out of step with the majority of other United States jurisdictions. (See, e.g., Docket Entry No. 286). While insisting that the County's current system is legal, the defendants acknowledge that it needs improvement. They argue that the planned reforms will make the County's pretrial system more efficient, more rational, and more equal across classifications of wealth and risk factors. (Docket Entry No. 162 at 23); Hearing Tr. 1:100-01, 8-2:30-32. The plaintiffs respond that until the expected reforms are implemented, serious constitutional violations will continue to occur, affecting hundreds of individuals every day. Even under the reforms, the plaintiffs contend, Harris County will continue its policy of imposing secured money bail as de facto pretrial detention orders in violation of federal due process requirements. (Docket Entry No. 188 at 26-27).

         The court finds and concludes that, based on the credible, reliable evidence in the present record, the plaintiffs are likely to succeed on the merits of at least some of their claims that the present system violates due process and equal protection, and that the plaintiffs are likely to succeed in part in their challenges to the new pretrial system as currently proposed by Harris County. The plaintiffs are entitled to a preliminary injunction, as set out in detail below.

         C. The Historical Development of Bail in the United States and in Harris County

         1. The Constitutionalization of Bail

         Bail originated in medieval England “as a device to free untried prisoners.” Daniel J. Freed & Patricia M. Wald, Bail in the United States: 1964 1 (1964); see 4 William Blackstone, Commentaries on the Laws of England (Rees Welsh & Co. [1769] 1902) (“By the ancient common law, before and since the [Norman] conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail before conviction almost in every case.” (footnotes omitted)); see generally William F. Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L. Rev. 33, 34-66 (1977); Elsa de Haas, Antiquities of Bail 128 (1940). In 1275, the English Parliament enacted the Statute of Westminster, which defined bailable offenses and provided criteria for determining whether a particular person should be released, including the strength of the evidence against the accused and the accused's criminal history. See Note, Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966, 966 (1961); June Carbone, Seeing Through the Emperor's New Clothes: Rediscovery of Basic Principles in the Administration of Bail, 34 Syracuse L. Rev. 517, 523-26 (1983). In 1679, Parliament adopted the Habeas Corpus Act to ensure that an accused could obtain a timely bail hearing. In 1689, Parliament enacted an English Bill of Rights that prohibited excessive bail. See Carbone, supra, at 528.

         Early American constitutions codified a right to bail as a presumption that defendants should be released pending trial. See Note, Bail, supra, at 967. One commentator who surveyed the bail laws in each state found that forty-eight states have protected, by constitution or statute, a right to bail “by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.” Matthew J. Hegreness, America's Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 916 (2013). States modeled these provisions on the Pennsylvania Constitution of 1682. See Carbone, supra, at 531-32. Texas substantially incorporated that language into its Constitution in 1845, and it remains.[5] Tex. Const. art. 1 § 11.

         Texas law interprets Article I, § 11 to prohibit preventive pretrial detention except in specific and narrow circumstances set out in constitutional amendments. Id. § 11a et seq. “The exceptions contained in Article I, § 11a, supra, to the constitutional right to bail proclaimed by Article I, § 11, supra, include the seeds of preventive detention urged by many to be abhorrent to the American system of justice. It is obvious that for these reasons the provisions of said § 11a contain strict limitations and other safeguards.” Ex parte Davis, 574 S.W.2d 166, 169 (Tex. Cr. App. 1978). The exceptions are narrow. All but one are limited to felonies. The one exception is under §§ 11b and 11c, which permit a denial of bail and pretrial preventive detention for those accused of a crime of family violence, including misdemeanors, if: (1) the accused has violated a condition of pretrial release or a protective order; and (2) a magistrate determines at an adversary hearing by a preponderance of the evidence that the accused violated the condition of release or protective order in a manner “related to the safety of a victim of the alleged offense or the safety of the community.” Tex. Const. art. 1, §§ 11b-11c.

         Historians and jurists confirm that from the medieval period until the early American republic, a bail bond was typically based on an individualized assessment of what the arrestee or his surety could pay to assure appearance and secure release. In medieval England, an arrestee was forbidden to pay his sureties for obtaining his release. If an accused failed to appear, the sureties were “amerced” with a fine, but there were “maximum amercements depending on the wrong-doer's rank; the baron [did] not have to pay more than a hundred pounds, nor the routier more than five shillings.” 2 Frederick William Polluck & Frederic William Maitland, The History of English Law Before the Time of Edward I 514 (2d ed. 1984 [1898]). Joseph Chitty, an eminent proceduralist, summarized the English practice when the United States Constitution was ratified: “The rule is, where the offence is prima facie great, to require good bail; moderation nevertheless is to be observed, and such bail only is to be required as the party is able to procure; for otherwise the allowance of bail would be a mere colour for imprisoning the party on the charge.” 1 J. Chitty, A Practical Treatise on the Criminal Law 88-89 (Philadelphia ed. 1819); see also Bates v. Pilling, 149 Eng. Rep. 805, 805 (K.B. 1834) (“a defendant might be subjected to as much inconvenience by being compelled to put in bail to an excessive amount, as if he had been actually arrested”); Rex v. Bowes, 99 Eng. Rep. 1327, 1329 (K.B. 1787) (per curiam) (“[e]xcessive bail is a relative term; it depends on the nature of the charge for which bail is required, upon the situation in life of the parties, and on various other circumstances”) & (Archbald, J.) (permitting a “lessening” of bail if there were “difficulty” procuring the decreed sum); Neal v. Spencer, 88 Eng. Rep. 1305, 1305-06 (K.B. 1698) (collecting cases showing a diversity of bail amounts given for the same offense). The pre-Texas history of bail confirms the modern holdings of Texas courts, that bail is a mechanism for pretrial release and not for continued pretrial preventive detention.

         2. Statutory and Judicial Bail Reform: Pretrial Services, Probable Cause Hearings, and “Meaningful” Alternatives to Secured Money Bail

         In the mid-nineteenth century, bail reform was crucial to abolishing imprisonment for debt. In Massachusetts, the 1831 survey of the Prison Discipline Society noted that the availability of bail in debtors' prisons created class distinctions between “poor seamen, poor laborers, and poor mechanics” who could not find sureties and remained in jail, “while there is scarcely an instance on record of a poor minister, a poor physician, or a poor lawyer in Prison for debt.” Sixth Annual Rep. of the Prison Discipline Society 22 (1831). After Massachusetts abolished imprisonment for debt in 1855, the State permitted those jailed on mesne[6] process in contract cases to swear an oath of indigence and to be released on personal recognizance as an alternative to secured money bail. 1857 Mass. L. 489-97. From 1831 to 1833, Congress passed legislation abolishing imprisonment for debt at the federal level. 4 Stat. 467, 594, 676. Ultimately, forty-one states, including Texas, constitutionally banned imprisonment for debt.[7] See Tex. Const. art. 1 § 18.

         Another wave of bail reform began with the 1960s Manhattan Bail Project, conducted by the Vera Foundation in New York City. See Wayne H. Thomas, Jr., Bail Reform in America 3, 20-27 (1976); Ronald Goldfarb, Ransom 150-72 (1965). The Project interviewed defendants before their first court appearance to evaluate whether they were good candidates for pretrial release on recognizance; that is, release “on one's honor pending trial.” Goldfarb, supra, at 153-54. The standard interview questions asked about a defendant's personal background, community ties, and criminal history. Id. The interviewer scored a defendant's answers using a point-weighting system and verified the answers, usually by telephone, with references the defendant provided. Id. at 154-55, 174-75. The interviewers gave the information to the court and recommended which defendants should be released on nonfinancial conditions. Id. at 155. During the first three years of the Project, defendants released on nonfinancial conditions at the recommendation of the Vera Foundation were about three times more likely to appear for trial than were defendants in control groups who were found eligible for release on nonfinancial conditions but who were instead released on secured money bail. Id. at 155, 157. The success of the Manhattan Bail Project inspired the creation of pretrial services programs across the country. See Timothy R. Schnacke et al., Pretrial Justice Inst., The History of Bail and Pretrial Release 10 (2010).

         In the 1970s, a major prisoners' class action challenged the facial and as-applied constitutionality of Florida's pretrial detention system. The litigation led to two foundational opinions, one by the United States Supreme Court and one by the former Fifth Circuit. In Gerstein v. Pugh, 410 U.S. 103 (1975), the Supreme Court ruled that criminal defendants arrested without a warrant and then detained before trial had to be taken “promptly” before a judicial officer to determine probable cause for the arrest. 410 U.S. at 127. The Court did not specify what would meet the promptness standard, instead noting that “the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole. . . . It may be found desirable, for example, to make the probable cause determination at the suspect's first appearance before a judicial officer, or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release.” Id. at 124 (internal citations omitted).

         In Pugh v. Rainwater, 572 F.2d 1053 (1978) (en banc), the Fifth Circuit considered the same class's challenge to Florida's pretrial bail system. The en banc court vacated as moot the panel decision finding the system unconstitutional, because Florida had amended its rules while the appeal was pending. Id. at 1058-59. The en banc court ruled that the Constitution did not require the statute to include a presumption that indigent arrestees would be released without financial conditions to be facially valid. Id. at 1057-58. But the court noted that while “[u]tilization of a master bond schedule provides speedy and convenient release for those who have no difficulty in meeting its requirements[, t]he incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Id. at 1057.

         In the decade following Gerstein and Rainwater, the City of Houston and Harris County were sued in two lawsuits disputing how to apply those precedents locally. In Sanders v. City of Houston, 543 F.Supp. 694 (S.D. Tex. 1982), the court ruled after a bench trial that Gerstein's promptness standard required a probable cause hearing for those arrested without a warrant by the City of Houston within 24 hours of arrest. Id. at 702. The court also ruled that bail had to be set within 24 hours of arrest to avoid an unconstitutional denial of bail under the Texas Constitution.[8] Id. at 704.

         In Roberson v. Richardson, Agreed Final Judgment, Civil No. 84-2974 (S.D. Tex. Nov. 25, 1987), the court entered a final agreed judgment that applied the 24-hour time limit to misdemeanor cases throughout the County.[9] The Roberson order's stated purpose was to ensure that misdemeanor arrestees in Harris County had “the right to a prompt, fair and reliable determination of Probable Cause as set out in Gerstein v. Pugh, 420 U.S. 103 (1978), a meaningful review of alternatives to pre-scheduled bail amounts as set out in Rainwater v. Pugh, 572 F.2d 1053 (5th Cir. 1978) (en banc), and the right to the prompt appointment of counsel.” Id. at 1. The Roberson order required the County Criminal Courts at Law Judges to provide probable cause hearings within 24 hours of misdemeanor arrests, allowing the hearings to be by videolink rather than in person. Id. at 2 (videolink), 3 (24 hours).

         The Roberson order required judicial officers at the probable cause hearing to “set the amount of bail required of the accused for release and determine the accused's eligibility for release on personal bond or alternatives to prescheduled bail amounts.” Id. at 3. Substantially repeating Article 17.15 of the Texas Code of Criminal Procedure, Section D of the Roberson order stated:

         Such bail determinations shall be according to the following criteria:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with;
2. The nature of the offense for which Probable Cause has been found and the circumstances under which the offense was allegedly committed are to be considered, including both aggravating and mitigating factors for which there is reasonable ground to believe shown, if any;
3. The ability to make bail is to be regarded, and proof may be taken upon this point;
4. The future safety of the victim may be considered, and if this be a factor, release to a third person should also be considered; and
5. The Judicial Officer shall also consider the accused's employment history, residency, family affiliations, prior criminal record, previous court appearance performance and any outstanding bonds.

Id. at 3.

         The Roberson order required the County Judges to “implement and maintain a bond schedule for all misdemeanor offenses within their jurisdiction.” Id. at 4. The schedule had to “establish the initial amounts of bail required in each type or category of offense.” Id. The Roberson order required that:

At the Probable Cause hearing the [Hearing] Officer shall use the Bail Schedule, in addition to the criteria in Section D, in determining the appropriate bail in a given case. The [Hearing] Officer shall have the authority to order the accused released on personal bond or released on other alternatives to prescheduled bail amounts. The [County] Judges shall direct the Pretrial Services Agency to make every effort to insure that sufficient information is available at the time of the hearings required herein for the [Hearing] Officer to determine an accused's eligibility for a personal bond or alternatives to prescheduled bail amounts.

Id.

         Nothing in the Roberson order contemplated detention based on a misdemeanor arrestee's inability to pay the scheduled bail amount set on a secured basis. Rather, the order required Hearing Officers to make individualized adjustments to the bail schedule in each case to provide a mechanism for release, either by lowering the scheduled amount when setting a secured bond; setting nonfinancial conditions of release; or granting release on unsecured “personal bonds” without additional conditions. See id. at 4, 1 (the purpose of the order is to provide “a meaningful review of alternatives to pre-scheduled bail amounts” (emphasis added)).

         Finally, the Roberson order required the County Judges to appoint counsel “prior to any adversarial judicial proceedings” or “where the Judge concludes that the interests of justice require representation, for all accused indigents who do not refuse the appointment of counsel.” Id. at 4. In determining indigency for the purpose of appointing counsel, the Roberson order required the County Judges to consider the accused's income and expenses, assets and debts, dependents, and “whether the accused has posted or is capable of posting bail.” Id. In no case could a County Judge “deny appointed counsel to an accused solely because the accused has posted, or is capable of posting bail.” Id.

         Efforts to comply with the Roberson order have produced the system Harris County has in place today, examined in greater detail below.[10] (Docket Entry No. 101 at 11); Hearing Tr. 4-2:222-29; 5:6-20. Harris County operates a Pretrial Services Agency that interviews misdemeanor arrestees to provide criminal risk and financial background information to the Hearing Officers. The Hearing Officers hold videolink hearings for those arrested, charged, and booked into the Harris County Jail on misdemeanor charges.[11] These hearings usually, but far from always, are held within 24 hours of arrest. The Hearing Officers usually jointly determine probable cause and set bail.

         3. Bail at the Federal Level

         At the federal level, the Judiciary Act of 1789 provided an absolute right to bail in noncapital cases and bail at the judge's discretion in capital cases. See 1 Stat. 73, 91. The first Congress also proposed the Eighth Amendment to the United States Constitution, which, like the Texas Constitution and the English Bill of Rights, prohibits excessive bail. See U.S. Const. amend. VIII; Tex. Const. art. 1, § 13. But unlike the Texas Constitution, the United States Constitution does not explicitly state a right to bail. The Eighth Amendment guarantees only that “[e]xcessive bail shall not be required.” U.S. Const. amend. VIII; see Carlson v. Landon, 342 U.S. 524, 545-46, (1952) (the Eighth Amendment does not provide a “right to bail”). But the United States Supreme Court has made clear that “[b]ail set at a figure higher than an amount reasonably calculated to fulfill [the]purpose [of assuring the defendant's appearance at trial] is ‘excessive' under the Eighth Amendment.” Stack v. Boyle, 342 U.S. 1, 5 (1951). As the Court explained,

From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), 18 U.S.C.A., federal law has unequivocally provided that a person arrested for a noncapital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 1895, 156 U.S. 277, 285 . . . . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

Id. at 4; see also Bandy v. United States, 81 S.Ct. 197, 198 (1960) (Douglas, J., in chambers) (“It would be unconstitutional to fix excessive bail to assure that a defendant will not gain his freedom. Yet in the case of an indigent defendant, the fixing of bail in even a modest amount may have the practical effect of denying him release.” (citing Stack, 342 U.S. at 1)); United States v. Leathers, 412 F.2d 169, 171 (D.C. Cir. 1969) (“the setting of bond unreachable because of its amount would be tantamount to setting no conditions at all”).

         The Bail Reform Act of 1966 became “the first major reform of the federal bail system since the Judiciary Act of 1789.” State v. Brown, 338 P.3d 1276, 1286 (N.M. 2014); see Bail Reform Act of 1966, 80 Stat. 214 (repealed 1984). The stated purpose of the Bail Reform Act of 1966 was “to assure that all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges . . . when detention serves neither the ends of justice nor the public interest.” Id. § 2. The Act required: (1) a presumption of release on personal recognizance unless the court determined that release would not reasonably assure the defendant's appearance in court; (2) the option of conditional pretrial release under supervision or other terms designed to decrease the flight risk; and (3) a prohibition on using money bail when nonfinancial release options such as supervisory custody or restrictions on “travel . . . or place of abode” could reasonably assure the defendant's appearance. See Id. § 3, § 3146(a).

         Congress again revised federal bail procedures with the Bail Reform Act of 1984, enacted as part of the Comprehensive Crime Control Act of 1984. See Bail Reform Act of 1984, 98 Stat. 1837, 1976 (codified at 18 U.S.C. §§ 3141-3150 (2012)). The legislative history of the 1984 Act states that Congress wanted to “address the alarming problem of crimes committed by persons on release” and to “give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released.” S. Rep. 98-225, at 3 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3185. The 1984 Act, as amended, retains most of the 1966 Act but “allows a federal court to detain an arrestee pending trial if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions ‘will reasonably assure . . . the safety of any other person and the community.'” United States v. Salerno, 481 U.S. 739, 741 (1987) (omission in original) (quoting the Bail Reform Act of 1984) (upholding the preventive detention provisions in the 1984 Act).

         The federal history of bail reform confirms that bail is a mechanism of pretrial release, not of preventive detention. Pretrial preventive detention in federal cases requires counseled, adversarial hearings with findings stated on the record that, by clear and convincing evidence, no less restrictive alternative can reasonably assure the defendant's presence at trial. See id. In United States v. McConnell, 842 F.2d 105 (5th Cir. 1988), the Fifth Circuit held that “a bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement.” Id. at 107. The magistrate judge in McConnell had initially ordered the felony defendant detained before trial with no release condition under the provision of the Bail Reform Act recently upheld in Salerno. See id. at 106. The district court replaced the detention order with a set of conditions for release, including weekly check-ins with pretrial services, travel restrictions, and secured money bail of $750, 000. Id. The defendant moved for reconsideration, alleging that he did not have the assets to pay the secured money bail. The defendant appealed the district court's denial of his motion for reconsideration, and the Fifth Circuit remanded to the district court for a written opinion with findings on the record. Id. The court issued written findings, and a second appeal followed. Id.

         The Fifth Circuit recognized that under the Bail Reform Act, Congress “proscrib[ed] the setting of a high bail as a de facto automatic detention practice.” Id. at 109. The Fifth Circuit relied on the Senate Report of the Bail Reform Act, which explained that:

section 3142(c) provides that a judicial officer may not impose a financial condition of release that results in the pretrial detention of the defendant. The purpose of this provision is to preclude the sub rosa use of money bond to detain dangerous defendants. However, its application does not necessarily require the release of a person who says he is unable to meet a financial condition of release which the judge has determined is the only form of conditional release that will assure the person's future appearance. Thus, for example, if a judicial officer determines that a $50, 000 bond is the only means, short of detention, of assuring the appearance of a defendant who poses a serious risk of flight, and the defendant asserts that, despite the judicial officer's finding to the contrary, he cannot meet the bond, the judicial officer may reconsider the amount of the bond. If he still concludes that the initial amount is reasonable and necessary then it would appear that there is no available condition of release that will assure the defendant's appearance. This is the very finding which, under section 3142(e), is the basis for an order of detention, and therefore the judge may proceed with a detention hearing pursuant to section 3142(f) and order the defendant detained, if appropriate. The reasons for the judicial officer's conclusion that the bond was the only condition that could reasonably assure the appearance of the defendant, the judicial officer's finding that the amount of the bond was reasonable, and the fact that the defendant stated that he was unable to meet this condition, would be set out in the detention order as provided in section 3142(i)(1). The defendant could then appeal the resulting detention pursuant to section 3145.

Id. at 108-09 (quoting S.Rep. No. 225, 98th Cong.2d Sess. 16, reprinted in 1984 U.S.C.C.A.N. 3182, 3199). The Fifth Circuit concluded that the district court could set a secured money bail amount beyond the defendant's ability to pay, but “[i]n such an instance, the court must explain its reasons for concluding that the particular financial requirement is a necessary part of the conditions for release. It is sufficient for the court to find by a preponderance of evidence that the defendant poses a serious risk of flight.” Id. at 110. When federal bail functions as an order of detention because of the defendant's inability to pay, the court must treat the bail as an order of detention under § 3142(e) and must provide the procedural protections that section requires, with a preponderance-of-the-evidence standard. See also United States v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991) (“once a court finds itself in this situation-insisting on terms in a ‘release' order that will cause the defendant to be detained pending trial-it must satisfy the procedural requirements for a valid detention order”).

         4. Bail under Texas Law

         The Texas state appellate court practice is similar to federal court practice. Texas courts have imposed or confirmed high money bail after a judicial officer holds an adversarial hearing, with defense counsel present, and issues a reasoned opinion with written findings permitting secured money bail despite inability to pay in felony cases in which pretrial preventive detention without bail is available under Article I, § 11 of the Texas Constitution. See, e.g., Jobe v. State, 482 S.W.3d 300 (Tex. App.-Eastland 2016) (charge of capital murder); Ex parte Ragston, 422 S.W.3d 904 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (capital murder, first-degree murder, and aggravated robbery); Ex parte Vasquez, 558 S.W.2d 477 (Tex. Cr. App. 1977) (capital murder). In cases in which preventive detention is not available, Texas appellate courts have confirmed high money bail in felony cases when the evidence did not show the defendant's inability to pay. See, e.g., Ex parte Dupuy, 498 S.W.3d 220, 233 (Tex. App.-Houston [14th Dist.] 2016, no pet.) (“Appellant offered no evidence, and we see none in the record, suggesting the trial court set his bail at $200, 000 for each case in order to keep him incarcerated.”); Cooley v. State, 232 S.W.3d 228, 235 (Tex. App.-Houston [1st Dist.] 2007) (“Cooley owns half of a multi-million dollar air freight business and did not introduce evidence that revenues from it were unavailable to him.”); Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Cr. App. 1980) (evidence showed the defendants “live in a style inconsistent with poverty”); Ex parte Welch, 729 S.W.2d 306, 310 (Tex. App.-Dallas 1987, no pet.) (incomplete and conflicting evidence on ability to pay in a case charging solicitation of capital murder committed while the defendant was already on pretrial release on a secured money bail).

         In a narrow set of felony cases, Texas courts have imposed or confirmed high money bail despite evidence of inability to pay the amount needed for pretrial release. “When the offense is serious and involves aggravating factors that may result in a lengthy prison sentence, ” a higher money bail than the defendant can pay is permissible, but only after satisfying the same due process requirements as an actual detention order. Dupuy, 498 S.W.3d at 230; see, e.g., Maldonado v. State, 999 S.W.2d 91 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (charges of possessing cocaine with a street value of $11-72 million with a possible sentence of 99 years); Ex parte Miller, 631 S.W.825 (Tex. App.-Ft. Worth 1982) (charges of murder and rape carrying life sentence); Ex parte Runo, 535 S.W.2d 188 (Tex. Cr. App. 1976) (bail set at $125, 000 on a charge carrying a life sentence was not excessive, but bail set at $75, 000 on a charge carrying a minimum two-year sentence was excessive and had to be reduced to $5, 000). Even so, Texas courts are careful to distinguish between transparent pretrial preventive detention orders and de facto pretrial detention orders imposed by setting bail higher than the defendant can pay. See, e.g., Dupuy, 498 S.W.3d at 230; Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.-Austin 1987, no pet.) (setting bail “on the obvious assumption that appellant could not afford bail in that amount and for the express purpose of forcing [the defendant] to remain incarcerated” was overturned for abuse of discretion); Ex parte Nimnicht, 467 S.W.3d 64, 70 (Tex. App.-San Antonio 2015) (“There is no evidence the trial court set bail with the intent to prolong Nimnicht's incarceration, especially in light of the fact the trial court reduced the bail amount.”).[12]

         The defendants argue that, while Texas law forbids setting bail higher than a defendant can pay in order to impose a de facto pretrial detention order, if a judicial officer weighs all five factors of Article 17.15 of the Texas Code of Criminal Procedure and then imposes a bail amount that an indigent arrestee cannot pay, the bail is not a de facto detention order. (See, e.g., Docket Entry No. 164 at 8-10, 18; No. 263 at 3-4; No. 266 at 7-8). The defendants overstate the Article 17.15 factors and their role. The Texas cases make clear that a judge may arrive at a bail amount that a defendant cannot pay when the defendant is facing a felony charge carrying an extended prison sentence. Even then, the bail setting requires an adversarial, counseled hearing at which the defendant can put on evidence of indigence and likelihood of compliance with nonfinancial conditions of release, and reviewable findings, stated on the record, that the secured financial condition is reasonably necessary to assure the defendant's appearance at trial or law-abiding conduct.[13] In misdemeanor cases, pretrial preventive detention is permitted only when a defendant is facing a family violence charge after previously violating a release condition in an earlier family violence case. In those cases, it is not necessary to use secured money bail to effect the detention of those who cannot pay. The Texas Constitution permits a transparent order of pretrial preventive detention.

         5. Recent Distinctions Drawn Between Bail and Preventive Detention

         a.Washington, D.C.

         In 1994, Washington, D.C. amended its Code using language substantially similar to the federal Bail Reform Act. The amended Code permits a judicial officer to set “a financial condition to reasonably assure the defendant's presence at all court proceedings that does not result in the preventive detention of the person, except as provided in” the Code's regulations of preventive pretrial detention orders. D.C. Code § 23-1321(c)(3). The Code permits preventive detention only in cases involving a charge of violent or dangerous crime, as well as in cases presenting a “serious risk that the person will flee.” Id. § 23-1322(b)(1). To order preventive detention, a judge must: hold a hearing at the first appearance of the defendant before a judicial officer; appoint counsel for the defendant; permit the defendant to put on evidence, testify, and call witnesses; and make written findings “by clear and convincing evidence that no condition or combination of conditions will reasonably assure the appearance of the person as required, and the safety of any other person and the community.” Id. § 23-1322(b)(2)-(d)(7).

         Judge Truman Morrison of the D.C. Superior Court credibly testified at the motion hearing that until the 1994 amendment, the D.C. courts did not order preventive detention outright. The statutory prohibition on using secured money bail to assure community safety was also “a dead letter.” Hearing Tr. 2-2:137. “So in cases of any seriousness, judges made an effort nontransparently, never saying what they were doing out loud, to immobilize high-risk people-who they thought were high-risk people-with money bonds that they hoped would be beyond their reach.” Id. Judge Morrison testified that after the 1994 rule change, “[f]or the high-risk people that we used to immobilize nontransparently, we turned to this preventive detention statute that was moldering on the bookshelf, and prosecutors and judges began using that for high-risk people.” Id. at 2-2:139. For “somewhat serious misdemeanors who we had been keeping in the jail on lower levels of money bond, ” judges began to order alternative nonfinancial conditions of release with supervision provided by D.C.'s pretrial services agency. Id. at 2-2:139-40. Based on a recent report by that agency, Judge Morrison testified that although secured money bail is still available under the D.C. Code, such bail is almost never imposed in misdemeanor cases. Transparent preventive detention orders are issued in only about 1.5 percent of misdemeanor cases, and then only after counseled, adversary hearings with findings on the record that there are no less restrictive conditions that will assure the defendant's presence at trial or the safety of the community.[14] Id. at 2-2:149, 154; D.C. Code § 23-1322(b)(2)-(d)(7).

         b. New Mexico

         In 2014, the New Mexico Supreme Court ruled that “[n]either the New Mexico Constitution nor our rules of criminal procedure permit a judge to set high bail for the purpose of preventing a defendant's pretrial release.” Brown, 338 P.3d at 1292 (citing N.M. Const. art. II, § 13-substantially the same language as Tex. Const. art. I, § 11). The court explained that “[i]ntentionally setting bail so high as to be unattainable is simply a less honest method of unlawfully denying bail altogether.” Id. The supreme court held that the trial court had abused its discretion by requiring secured money bail “solely on the basis of an accusation of a serious crime” and had failed to apply the New Mexico Code of Criminal Procedure requirement that trial courts impose the least restrictive bail and release conditions to reasonably assure a defendant's appearance and the public's safety. Id. at 1291-92.

         In 2016, New Mexico voters codified the holding of State v. Brown in a constitutional amendment that passed with 87.2 percent of the vote.[15] The amendment provided that “[b]ail may be denied by a court of record pending trial for a defendant charged with a felony if the prosecuting authority requests a hearing and proves by clear and convincing evidence that no release conditions will reasonably protect the safety of any other person or the community. An appeal from an order denying bail shall be given preference over all other matters.” Constitutional Amendment 1, New Mexico Senate Joint Resolution 1, March 1, 2016.[16] The amendment also required that “[a] person who is not detainable on grounds of dangerousness nor a flight risk in the absence of bond and is otherwise eligible for bail shall not be detained solely because of financial inability to post a money or property bond.” Id. Under the amendment, courts cannot order preventive detention for misdemeanor arrestees or accomplish the same effect by setting a secured money bail that an indigent defendant cannot pay.

         c. New Jersey

         New Jersey recently amended its constitution and statutes to enact statewide bail reforms. The changes went into effect on January 1, 2017. The New Jersey Constitution now provides that “[p]retrial release may be denied to a person if the court finds that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person's appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process.” N.J. Const. art. 1, § 11.

         In a detailed law-enforcement directive, the New Jersey Attorney General concluded that under New Jersey's prior practice, “in most cases the critical determination whether a defendant [was] released pending trial or instead incarcerated in a county jail [was] not made by a judge issuing a well-reasoned court order. Rather, for all practical purposes, defendants [were] released or detained based on whether they happen[ed] to have the financial means to post bail.” N.J. Attorney General Law Enforcement Directive No. 2016-6 at 9. New Jersey changed. Its current system creates a presumption against the use of secured money bail unless the prosecutor can show that “no non-monetary release condition or combination of conditions would be sufficient to reasonably assure the defendant's appearance in court when required”; “the defendant is reasonably believed to have financial assets that will allow him or her to post monetary bail in the amount requested by the prosecutor without having to purchase a bond from a surety company or to obtain a loan”; and “imposition of monetary bail set at the amount requested would . . . make it unnecessary for the prosecutor to seek pretrial detention.” Id. at 56. Secured money bail cannot be used to achieve or to have the effect of a pretrial detention order. Out of 3, 382 cases filed in the first month under the new law, judges imposed transparent orders of pretrial detention in 283 cases and denied pretrial detention when requested to do so in 223 cases. Secured money bail was set in only 3 cases. Pls. Ex. 7(k) at 1.

         New Jersey does not distinguish between felony and misdemeanor cases but between numbered “categories” of offenses, making comparisons to the Texas misdemeanor bail system difficult. The New Jersey numbers are for all case categories. Id. Because this approach clearly applies to more serious felony-level cases, the basis for applying it to misdemeanor cases is even stronger.

         d. New Orleans

         On January 12, 2017, the Council of the City of New Orleans, where the municipal courts have jurisdiction only over misdemeanor cases, passed a measure reforming its bail ordinance. Pls. Ex. 12(tt). The preamble states that “incarcerating people solely due to their inability to pay for their release through the payment of cash bond violates the Equal Protection Clause of the Fourteenth Amendment.” Id. at 1 (citing Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir. 1977). The new ordinance requires that except for four enumerated offenses-battery, possession of weapons, impersonating a peace officer, and domestic violence-all misdemeanor arrestees are to be released on personal recognizance. Id. at 2-3. For those charged with one of the enumerated offenses, the municipal courts must “impose the least restrictive non-financial release conditions.” Id. at 3. “For any person who qualifies for indigent defense, or does not have the present ability to pay, the Court may not set” any financial condition of release or a nonfinancial condition of release “that requires fees or costs to be paid by the defendant.” Id. Other than the four specific exceptions for offenses that involve violence or other public safety threats, all defendants must be released with no financial conditions. If a financial condition is imposed, the defendant must have “the present ability to pay the amount set.” Id.

         e. Maryland

         On February 17, 2017, the Maryland Court of Appeals adopted detailed changes to its court rules, the main source of criminal procedural law in Maryland. The rule changes will take effect on July 1, 2017. Pls. Ex. 12(p)(i), Court of Appeals of Maryland, Rules Order, Feb. 17, 2017 at 3. The rule changes are “designed to promote the release of defendants on their own recognizance or, when necessary, unsecured bond” by establishing a “[p]reference” for “additional conditions [of release] without financial terms.” Id. at 33. All defendants-both felony and misdemeanor-must be released on personal recognizance or unsecured bond unless a judicial officer makes written findings on the record “that no permissible non-financial condition attached to a release will reasonably ensure (A) the appearance of the defendant, and (B) the safety of each alleged victim, other persons, or the community.” Id. at 35. Even in those circumstances, the new rules require that “[a] judicial officer may not impose a special condition of release with financial terms in form or amount that results in the pretrial detention of the defendant solely because the defendant is financially incapable of meeting that condition.” Id. at 39. Pretrial detention must not be the intended use or the incidental effect of secured money bail.

         Before the rule change, the Maryland Attorney General wrote to the rules committee chairman that “[a]lthough Maryland law permits unconditional pretrial detention only where no conditions of release will reasonably protect the public or ensure the defendant's appearance at trial, nearly every evaluation of Maryland's pretrial system has found no relationship between a pretrial detainee's perceived risk and the bond amount set. . . . Lower risk defendants are detained because they cannot afford the bail, while higher risk defendants who have access to financial resources are able to make bail and are often permitted to do so without imposition of other conditions to protect the public.” Pls. Ex. 12(p) at 3 (citing reports). An advisory memo from the then United States Attorney General stated that “[a]s a general proposition, Maryland's judicial officials . . . do not properly and consistently consider defendants' individual circumstances, and particularly their financial resources, in making bail determinations. As a result, arrestees in Maryland habitually face extended periods of pretrial detention not as a result of their dangerousness to the community or because they pose a substantial risk of flight, but solely because they are unable to pay bail.” Pls. Ex. 12(p)(ii) at 7. The memo concluded that this system, and those like it, violated both state law and the federal Constitution. Id. at 4-11.

         f. Alabama

         Some of the same lawyers representing the plaintiffs in this case have brought similar actions challenging bail systems around the country. Several actions were resolved with an agreed final judgment. These judgments typically state that “[i]f the government offers release from custody after arrest upon the deposit of money pursuant to a bail schedule, it cannot deny release from custody to a person, without a hearing regarding the person's indigence and the sufficiency of the bail setting, because the person is unable to deposit the amount specified by the schedule.” Jones v. City of Clanton, Alabama, Civil No. 15-34, 2015 WL 5387219 at *4 (M.D. Ala. Sep. 14, 2015) (citing Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978); Bearden v. Georgia, 461 U.S. 660 (1983); State v. Blake, 642 So.2d 959 (Ala. 1994)); see also Jenkins v. City of Jennings, Civil No. 15-252 (E.D. Mo. Dec. 14, 2016); Bell v. City of Jackson, Civil No. 15-252 (E.D. Mo. June 20, 2016); Thompson v. Moss Point, Civil No. 15-182 (S.D.Miss. Nov. 6, 2015); Snow v. Lambert, Civil No. 15-567 (M.D. La. Aug. 27, 2015); Cooper v. City of Dothan, Civil No. 15-425 (M.D. Ala. June 18, 2015); Pierce v. City of Velda, Civil No. 15-570 (E.D. Mo. June 3, 2015). In Jones, the court independently confirmed the need for relief, reasoning that “[b]ail schemes such as the one formerly enforced in the municipal court result in the unnecessary pretrial detention of people whom our system of justice presumes to be innocent, ” and that “[c]riminal defendants, presumed innocent, must not be confined in jail merely because they are poor.” Jones, 2015 WL 5387219 at *3.

         The U.S. Department of Justice filed a statement of interest in Jones, stating that “[i]ncarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment.”[17] See Varden v. City of Clanton, Alabama, Civil No. 15-34, Docket Entry No. 26 at 1 (M.D. Ala. Feb. 13, 2015). The Justice Department reasoned that because rigidly adhering to a secured money bail schedule “do[es] not account for individual circumstances of the accused, [it] essentially mandate[s] pretrial detention for anyone who is too poor to pay the predetermined fee. This amounts to mandating pretrial detention only for the indigent.” Id. at 9. After Jones, fifty of Alabama's largest cities, accounting for 40 percent of the population, voluntarily reformed their bail systems to either release misdemeanor defendants on personal recognizance or, at a minimum, to set an early hearing to consider alternative methods of release to secured money bail. Pls. Ex. 12(1).

         g. Calhoun, Georgia

         Some of the plaintiffs' counsel also represented the plaintiffs in Walker v. City of Calhoun, Georgia, Civil No. 15-170, 2016 WL 361612 (N.D.Ga. Jan. 28, 2016). A putative class of misdemeanor arrestees alleged that Calhoun detained them on prescheduled amounts of secured money bail that were not reviewed except at court sessions held each Monday. Id. at *1. The trial court granted the plaintiffs' motion for a preliminary injunction, finding that “keeping individuals in jail solely because they cannot pay for their release, whether via fines, fees, or a cash bond, is impermissible.” Id. at *10 (citations omitted). The court ordered Calhoun to “implement postarrest procedures that comply with the Constitution, ” and directed that “until Defendant implements lawful postarrest procedures, Defendant must release any other misdemeanor arrestees in its custody, or who come into its custody, on their own recognizance or on unsecured bond in a manner otherwise consistent with state and federal law and with standard booking procedures.” Id. at *14. The Eleventh Circuit vacated the injunction because requiring the defendant to implement constitutional procedures was “the archetypical and unenforceable ‘obey the law' injunction” forbidden by Federal Rule of Civil Procedure 65. Walker v. City of Calhoun, Georgia, - F.App'x -, 2017 WL 929750 at *2 (11th Cir. Mar. 9, 2017). The panel did not consider the merits, instead remanding for the district court to enter a specific order consistent with Rule 65. See id.

         Walker attracted significant attention. Ten amicus briefs were filed, including by the American Bar Association, the U.S. Department of Justice, the Pretrial Justice Institute and National Association of Pretrial Services Agencies, the Cato Institute, and various representatives of bail bonds associations, Georgia law-enforcement personnel, and other municipalities and their insurers. The relevant amicus briefs are included in the record here.

         The American Bar Association's amicus brief in Walker argued that “[m]onetary conditions of release should never be drawn from an inflexible schedule, should be imposed only after consideration of the defendant's individual circumstances, and should never prevent the defendant's release solely because the defendant is unable to pay.” Pls. Ex. 12(ff) at 12. The Third Edition of the ABA Standards for Criminal Justice, Pretrial Release (3d ed. 2007), recommend “procedures designed to promote the release of defendants on their own recognizance or, when necessary, unsecured bond.” Standard 10-1.4(a). Jurisdictions should impose financial conditions only “when no other conditions will ensure appearance, ” and financial conditions “should not be employed to respond to concerns for public safety.” Standard 10-1. (4c)-(d). The Standards also emphasize that “[t]he judicial officer should not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant's inability to pay.” Standard 10-1.4(e).

         The American Bar Association's brief emphasizes that “[u]nwarranted pretrial detention infringes on defendants' constitutional rights, ‘making it difficult for the defendant to consult with counsel, locate witnesses, and gather evidence' and placing a particularly heavy burden on ‘poor defendants and on racial and cultural minorities.'” Pls. Ex. 12(ff) at 14 (quoting Standards at 32-33). The commentary to the Standards states that “[i]f the court finds that unsecured bond is not sufficient, it may require the defendant to post bail; however, the bail amount must be within the reach of the defendant and should not be at an amount greater than necessary to assure the defendant's appearance in court.” Id. (quoting with emphasis Standards at 43-44). The brief concludes that detaining a defendant solely for failure to pay a secured financial condition of release is unwarranted and unconstitutional. Id.

         The Justice Department's brief expanded the statement of interest it submitted in the Jones Alabama bail case. The brief reasoned that, based on Supreme Court precedent, “[i]f a court finds that no other conditions may reasonably assure an individual's appearance at trial, financial conditions may be constitutionally imposed-but ‘bail must be set by a court at a sum designed to ensure that goal, and no more.'” Pls. Ex. 12(dd) at 18 (quoting with emphasis Salerno, 481 U.S. at 754). “Although the imposition of bail in such circumstances may result in a person's incarceration, ” the Department explained, “the deprivation of liberty in such circumstances is not based solely on inability to pay.” Id. But adhering to “fixed bail schedules that allow for the pretrial release of only those who can pay, without accounting for ability to pay and alternative methods of assuring future appearance, do not provide for such individualized determinations, and therefore unlawfully discriminate based on indigence.” Id.

         The Justice Department's argument is stated less strongly than the American Bar Association's. While the American Bar Association argues that defendants must not be detained solely because of their inability to pay secured money bail, the Justice Department interprets “solely” to exclude those who cannot pay a secured money bail because it has been set beyond their reach due to their risk of flight. See id. Both arguments are consistent with the reforms surveyed above. Some jurisdictions, such as Washington, D.C., New Mexico, New Jersey, and New Orleans, do not permit secured money bail settings to result in pretrial detention or operate as de facto pretrial preventive detention orders in misdemeanor cases, in line with the American Bar Association's recommendations. Others, such as Maryland and Alabama, permit secured money bail to have the effect of detention only if the court follows the procedures required for pretrial preventive detention, in line with the Justice Department's argument. In those cases, a judicial officer must make written findings after an adversarial, counseled hearing that secured money bail in the amount set is the only, or the least restrictive, condition that can reasonably assure the defendant's appearance at trial.

         The Pretrial Justice Institute and the National Association of Pretrial Services Agencies submitted a brief in Walker using empirical data to argue that secured money bail, as opposed to an unsecured appearance bond, is never the only reasonable condition that will assure an individual's appearance at trial or community safety. Pls. Ex. 12(hh). The brief presented data showing that those released on secured money bail do not appear at greater rates or commit new crimes at lower rates than those released on unsecured bonds. Id. Secured money bail schedules can effectively increase rates of appearance when they operate as detention orders, but “the use of such schedules inevitably leads to the detention of some persons who pose little threat to public safety, but are too poor to afford release, while releasing others that pose a higher safety risk (but can afford to post bond).” Id. at 25.

         h. Conclusion

         In addition to the policy changes that a number of jurisdictions have already implemented or are in the process of implementing, even more jurisdictions have announced that they are examining or are about to reform their bail systems.[18] A common theme among these reformed and reforming jurisdictions is that, before recent rule changes, each jurisdiction as a matter of routine practice either intentionally used or indifferently permitted the use of secured money bail as de facto detention orders against those financially unable to pay. See, e.g., Brown, 338 P.3d at 1292 (“We understand that this case may not be an isolated instance and that other judges may be imposing bonds based solely on the nature of the charged offense without regard to individual determinations of flight risk or continued danger to the community.”); Pls. Ex. 12(p); Hearing Tr. 2-2:137. The other theme is that this practice did not hold up to historical, empirical, political, or legal scrutiny. Whether by legislative enactment, judicial rulemaking, or court order, there is a clear and growing movement against using secured money bail to achieve a misdemeanor arrestee's continued detention. Of course, it is not a federal court's role in any way to make policy judgments. See, e.g., Brown v. Plata, 563 U.S. 493 at 537-38 (2011). The question this case presents is not what is the best or even a good bail policy. The question is what bail system the Constitution requires and what system it prohibits. The Constitution sets minimum standards of due process and protects basic rights such as the presumption of innocence and the ability to prepare for trial. State and local governments may add to, but may not detract from, these basic protections. See, e.g., Gerstein, 420 U.S. at 124. The question is whether Harris County meets the constitutionally minimum standards and procedures.

         D. The Use of Bail in Harris County Misdemeanor ...


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