Pretrial Systemic Litigation

The past decade has seen a wave of civil rights litigation targeting various aspects of the pretrial process, including the use of bail schedules, the need to conduct individualized hearings relating to an accused's financial resources, and the underpinnings of the monetary bail system. Arguments have focused upon the due process and equal protection implications of these practices and have met with a significant degree of success, leading to changes in pretrial policies across the country.

Philadelphia Community Bail Fund v. Arraignment Court Magistrates (2019 PA)

Suit challenging cash bail system in Philadelphia. In July 2019 the Court appointed a special master to examine the plaintiff's allegations of systemic failure including the failure to follow existing state laws relating to bail proceedings, and to suggest actions for the court in response to any such systemic failures.

Quick Facts on the Philadelphia Bail Fund:

  • 130 people bailed out
  • 91% court appearance rate
  • 75 cases resolved
  • 53 cases withdrawn
  • 4 cases ended with jail sentence
  • 8,500 pretrial detention days saved.

Learn more about the Philadelphia Bail Fund's Success: A Window into a Future Without Cash Bail: A Snapshot Report on Resolved Cases of the Philadelphia Bail Fund (Nov. 2019) 

Dixon v. City of St. Louis (2019 MO)

Class action suit challenges St. Louis pretrial practices relating to lack of individualized hearings, including consideration of ability to pay, lengthy pretrial detention periods awaiting bail review, denial of right to be heard by systemic directives for accused to not speak at initial appearance. On June 11, 2019, the federal court for ED MO granted Plaintiff's motion for class certification and for a preliminary injunction which limits pretrial detention based on monetary bail. The defendant's motion to dismiss was denied.  

Full Case Filings and Orders

Jefferson County Resolution Agreement with DOJ (2018 AL)

In response to a complaint filed under Title VI of the Civil Rights Act of 1964, in 2018 the Administrative Office of the Courts for Jefferson County Alabama entered into an agreement with the US Department of Justice to address concerns regarding racial disparities in their pretrial practices.

Resolution Agreement

In Re Kenneth Humphrey (2017 CA)

California Court of Appeals held the failure to consider Humphrey's individual ability to pay and non-monetary alternatives to setting cash bail violated his rights under the due process and equal protection clauses. The case is now pending before California Supreme Court.{1}417 P.3d 769 (Cal. 2018), on following questions:

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  1. Did the Court of Appeals err in finding due process and equal protection require consideration of a defendant's ability to pay in setting and reviewing bail?
  2. Can courts consider public and victim safety in setting bail? Must they do so?
  3. Under what circumstances does California's Constitution permit bail be denied in non-capital cases?

Full Case Pleadings and Amicus Filings

In January 2019 the Civil Rights Corps and the San Francisco Public Defender's Office were honored for their work in this matter with NACDL's Champion of Public Defense Award.

In 2018 the California Legislature passed SB10, a bill which eliminated the use of cash bail, required localities to adopt risk assessment instruments, and authorized the use of preventative detention. The bill drew strong opposition from organizations across the criminal justice system and is currently on the state's November 2020 ballot.

More on California bail: 

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LA Times Op-Ed: California's high court has the chance to fix our 'unsafe and unfair' money bail system, L. Levenson, 6/14/19

Not In It For Justice: How California's Pretrial Detention and Bail System Unfairly Punishes Poor People, Human Rights Watch, 2017

Odonnell v. Harris County (2016 TX)

In 2016 a federal class-action lawsuit was initiated raising due process and equal protection challenges to Harris County's monetary bail system as it relates to those accused of misdemeanor offenses. An injunction in favor of the plaintiff's was initially entered. On appeal the matter was remanded to the district court to narrow the injunction. Following the entry of a new, narrower injunction, 14 Harris County judges pursued an appeal of the ruling which mandated, among other things, that individuals unable to post a financial bond on a misdemeanor offense could not be held more than 48 hours.
This appeal was withdrawn after all 14 judges were voted out of office in the county's 2018 election. The newly elected judges decided not to continue the appeal.{2} 2 892 F.3d 147 (5th Cir. 2018), see also, 251 F. Supp. 1062 9S.D. Tex. 2017) . Shortly thereafter a Settlement was reached.

On November 21, 2019, the US District Court for the Southern District of Texas entered a Consent Decree bringing about historic changes to Harris County's misdemeanor bail practices. Provisions include the implementation of practices to increase court appearance rates following release, procedures to reschedule court dates, data collection and transparency, and the appointment of a monitor to ensure compliance. Read the Settlement Order

Full Case Pleadings and Amicus Filings

Walker v. City of Calhoun (2015 GA)

In 2015 Walker filed a civil rights action in federal court (ND GA) alleging the City of Calhoun's use of a bail schedule violated due process and equal protection by setting bail without regard to the financial resources of the arrestee. The City held court once a week, leaving many in jail for 7 days or more before they could have a bail hearing on even minor offenses. While the case was pending the City amended its policies to insure individuals were brought before a judge within 48 hours of arrest to have their bail reviewed.
The City appealed the trial court's issuance of a preliminary injunction in favor of Walker. The Civil Rights Division of the US Department of Justice filed a Statement of Interest in support of Walker. Ultimately the 11th Circuit vacated the trial court's preliminary injunction.
In 2019 the US Supreme Court denied review of the case, leaving in place the 11th Circuit's finding that the new 48 hour review hearing "presumptively constitutional."

Full Case Pleadings and Amicus Filings

Pierce v. City of Velda (2015 MO)

2015 class action lawsuit challenging city's practice of holding individuals for 3 days before being seen by a judge if they were unable to post the bond set via the city's bail schedule. Litigation mooted by settlement agreement to discontinue practice and put in place a number of safeguards for misdemeanor arrestees. Terms of the settlement agreement included the City would use non-monetary release (unsecured and personal recognizance bonds) for all individuals that wre not deemed dangers to the community and to only hold individuals if they failed to appear for three or more court dates. This case is now closed. 

Full Case Pleadings

Varden v. City of Clanton (2015 AL)

2015 class action lawsuit challenging the city's use of bail schedules without individualized hearings to consider an accused's ability to pay. DOJ filed a Statement of Interest DOJ filed a Statement of Interest in the matter, but the case settled before it was heard. Among the changes, the city agreed to modify its bail schedule and to hold hearings within 48 hours for all accused unable to post their bond. 

Full Case Pleadings

DeWolfe v. Richmond:(2006 MD)

Suit alleged denial of public defense representation at initial appearance, asserting initial appearance is a "critical stage" of the proceedings which requires state-furnished counsel. The Court initially held Maryland's Public Defender Act required counsel be furnished to indigent defendants at initial hearing.{3} 3 DeWolfe v. City of Richmond, 76 A.3d 962 (2012) The legislature subsequently amended the Public Defense Act to provide representation was not required at the initial hearing. A subsequent appellate ruling found Maryland's constitutional due process protections provided the indigent accused the right to counsel at the initial hearing.{4} 4 DeWolfe v. City of Richmond, 76 A.3d 1019 (2013)

Read NACDL's  Amicus Brief

NACDL News, Another State Recognizes Counsel is Required at First Appearance Whenever Liberty is at Stake (The Champion Sept.-Oct. 2013)
See Also NACDL Resolution in Support of Counsel at First Appearance (2012)

United States Supreme Court:

Stack v. Boyle.{5} 342 US 1 (1951) "Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, will lose its meaning." Supreme Court held the right to release pending trial is conditioned upon an accused giving adequate assurances they will stand trial and submit to any sentence imposed. Bail set in an amount that is higher than reasonably necessary to achieve these goals is excessive in violation of the Eighth Amendment.

United States v. Salerno{6} 6 451 U.S. 739 (1987) Supreme Court upholds Federal Bail Reform Act of 1984, which permits an individual to be held without bail on a federal offense, finding that while the 8th Amendment prohibits excessive bail, it does not call for a requirement that all accused must be given some form of bail.