Bradley Hester v. Matthew Gentry ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 18-13894
____________________
RAY CHARLES SCHULTZ, et al.,
Plaintiffs,
BRADLEY HESTER,
Plaintiff-Appellee,
versus
STATE OF ALABAMA, et al.,
Defendants,
MATTHEW GENTRY,
Sheriff of Cullman County, Alabama,
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in official and individual capacity,
AMY BLACK,
in her official capacity as a Magistrate,
LISA MCSWAIN,
in her official capacity as a Magistrate,
JUDGE J. CHAD FLOYD,
JUDGE RUSTY TURNER,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:17-cv-00270-MHH
____________________
Before ROSENBAUM, LAGOA, and ANDERSON, Circuit Judges.
LAGOA, Circuit Judge:
Cullman County, Alabama, maintains a bail system that, un-
til recently, was commonplace throughout the country. When ar-
rested, the accused is assessed an amount of bail based on a bail
schedule. Those who can pay the amount are immediately re-
leased. Those who cannot afford to post bail, however, are de-
tained for a short time period until they can appear at a bail hearing.
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At that bail hearing, the arrestee must prove his inability to post
bail and show that he is not a flight risk or a danger to the commu-
nity in order to secure his release.
Today, we are asked to assess the constitutionality of this
ubiquitous system. Bradley Hester, on behalf of a class of similarly
situated pretrial detainees, argues that the bail system is unconsti-
tutional because it discriminates against the indigent, both by ab-
solutely depriving them of pretrial release and by depriving them
of due process at their bail hearings. In the district court, Hester
moved for a preliminary injunction on both grounds. The district
court agreed with his position and enjoined the Sheriff of Cullman
County from continuing to operate its bail system as written, es-
sentially guaranteeing indigent arrestees immediate pretrial re-
lease. This appeal followed.
I. FACTUAL AND PROCEDURAL HISTORY
The factual background of this case is long and complicated.
When Hester was first arrested and detained, Cullman County
maintained a bail system that is no longer in effect. On March 26,
2018—after Hester filed his complaint but before the district court
issued its preliminary injunction—Cullman County adopted a new
bail system, as memorialized in what we will refer to as the “Stand-
ing Bail Order.” The Standing Bail Order is the bail system at issue
in this case.
We will thus summarize the facts in four parts. First, we
describe the relevant provisions of Alabama law at issue. Second,
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we describe Cullman County’s prior bail system—i.e., the bail sys-
tem in place before March 26, 2018. Third, we detail the changes
Cullman County made to its bail system upon the issuance of the
Standing Bail Order. Fourth, we summarize Hester’s arrest and the
resulting procedural history of this case.
Under Alabama law, all arrestees not charged with capital
murder have the statutory right to bail. See Ala. Code §§ 15-13-106to -108. The purposes of setting bail are obvious: getting defend-
ants to appear for court proceedings and ensuring public safety.
See Ala. R. Crim. P. 7.2(a) (noting that conditions of pretrial release
should “reasonably assure the defendant’s appearance” at court
proceedings and protect “the public at large” from “real and pre-
sent danger”).
Alabama Rule of Criminal Procedure 7.2(a) establishes the
framework for the right to bail and specifies the factors to be con-
sidered when conducting an individualized bail determination:
Rule 7.2. Right to release on one’s personal recogni-
zance or on bond.
(a) Before Conviction. Any defendant charged with
an offense bailable as a matter of right may be re-
leased pending or during trial on his or her personal
recognizance or on an appearance bond unless the
court or magistrate determines that such a release
will not reasonably assure the defendant’s appearance
as required, or that the defendant’s being at large will
pose a real and present danger to others or to the pub-
lic at large. If such a determination is made, the court
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may impose the least onerous condition or conditions
contained in Rule 7.3(b) that will reasonably assure
the defendant’s appearance or that will eliminate or
minimize the risk of harm to others or to the public
at large. In making such a determination, the court
may take into account the following:
1. The age, background and family ties, rela-
tionships and circumstances of the defendant.
2. The defendant’s reputation, character, and
health.
3. The defendant’s prior criminal record, in-
cluding prior releases on recognizance or on
secured appearance bonds, and other pending
cases.
4. The identity of responsible members of the
community who will vouch for the defend-
ant’s reliability.
5. Violence or lack of violence in the alleged
commission of the offense.
6. The nature of the offense charged, the ap-
parent probability of conviction, and the likely
sentence, insofar as these factors are relevant
to the risk of nonappearance.
7. The type of weapon used, e.g., knife, pistol,
shotgun, sawed-off shotgun.
8. Threats made against victims and/or wit-
nesses.
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9. The value of property taken during the al-
leged commission of the offense.
10. Whether the property allegedly taken was
recovered or not; damage or lack of damage to
property allegedly taken.
11. Residence of the defendant, including con-
sideration of real property ownership, and
length of residence in his or her place of domi-
cile.
12. In cases where the defendant is charged
with a drug offense, evidence of selling or
pusher activity should indicate a substantial in-
crease in the amount of bond.
13. Consideration of the defendant’s employ-
ment status and history, the location of defend-
ant’s employment, e.g., whether employed in
the county where the alleged offense occurred,
and the defendant’s financial condition.
14. Any enhancement statutes related to the
charged offense.
Ala R. Crim. P. 7.2(a).
Individuals in Cullman County can be arrested in one of two
ways—pursuant to a warrant or pursuant to a warrantless probable
cause arrest. For individuals arrested pursuant to a warrant issued
by one of the County’s magistrate judges, those judges set the ini-
tial bail amount in the warrant. For individuals arrested without a
warrant, the Cullman County Sheriff’s Office sets the initial bail
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amount. In Cullman County, both before and after the Standing
Bail Order went into effect, bail was initially assessed under a Mas-
ter Bail Schedule that matched an amount of bail with a particular
criminal offense.
Because many individuals do not have liquid assets in an
amount sufficient to satisfy the bail schedule, Cullman County also
has a bonding process that allows arrestees to post bail. Arrestees
can post either property bonds or surety bonds to make bail. In the
case of property bonds, the arrestee posts either real or chattel
property as collateral for his bail. With surety bonds, the arrestee
contacts a bonding company and works out an arrangement by
which he pays a fee or percentage of his bail to the bonding com-
pany, which then posts bail in the full amount.
Before March 26, 2018, the Cullman County bail schedule
matched specific criminal offenses with a range of bail that could
be assessed. When an individual was arrested without a warrant,
the Sheriff’s Office would set bail under that schedule based on the
crime charged. Those individuals who could post bail through a
secured bond were immediately released, while those who could
not afford to post bail were detained until a magistrate judge could
conduct an initial appearance. At that initial appearance, the mag-
istrate judge would explain the basis of the bail amount set but was
not permitted to evaluate the bail amount or determine whether it
exceeded the amount necessary to satisfy the purposes of bail. Af-
ter that bail hearing, an arrestee could move to have his bail
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amount reconsidered, which would then be heard by a district
judge in Cullman County.
The parties disputed the efficacy of this now-defunct bail sys-
tem. According to Alacourt—Alabama’s electronic court monitor-
ing system—around 34% of arrestees in February 2018 could not
secure their release by posting bond within seventy-two hours of
arrest. And of that group, Alacourt explained that a substantial per-
centage did not receive their initial appearance within the seventy-
two hours prescribed by Alabama law. The Defendants, however,
contended that Alacourt did not contain all relevant information
and sometimes experienced substantial lag time in updating. Ac-
cording to them, the number of February 2018 arrestees who were
released without the need of an initial appearance was 76%. But,
according to the Defendants, a number of arrestees who ultimately
did not post bond were ineligible for release anyway due to either
a new probable cause arrest or a warrant for failure to appear.
On March 26, 2018, the presiding circuit judge of Cullman
County issued a new “Standing Order Regarding Pre-Trial Appear-
ance and the Setting of Bond.” This Standing Bail Order set new
policies for the County, including providing a new bail schedule
that specified specific bail amounts (rather than a range) for specific
crimes. Some bail amounts were also lower than in the previous
system.
The Standing Bail Order prescribed new procedures for ad-
ministering bail. As with the previous system, arrestees who could
afford to pay the bail amount imposed upon arrest would be
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immediately released—usually within ninety minutes or so of ar-
riving at the Sheriff’s Office. But if the Sheriff believed that the
amount in the bail schedule was insufficient for serving the pur-
poses of bail—i.e., if the Sheriff believed that the arrestee posed a
risk of flight or danger to the community that did not match the
amount of bail prescribed by the schedule—the Standing Bail Or-
der allowed the Sheriff to submit a “Bail Request Form.” If such a
form was submitted, the arrestee—regardless of ability to pay—
would be held by the Sheriff’s Office until a magistrate judge could
hold an initial appearance, at which time the magistrate judge
would conduct an individualized determination of the conditions
and release, and either grant the Sheriff’s bail request (setting an
amount higher than prescribed in the schedule) or deny the bail
request (and thus fall back on the amount prescribed in the sched-
ule). The Standing Bail Order requires that such a hearing will take
place within seventy-two hours of arrest. If the hearing does not
take place within seventy-two hours, the Standing Bail Order guar-
antees the arrestee release upon posting bail in the initial amount
prescribed by the bail schedule.
Under the Standing Bail Order, indigent arrestees—those
who cannot afford to post bail—receive similar treatment to ar-
restees for whom the Sheriff submits a bail request. After arrest,
the Standing Bail Order guarantees them an initial appearance and
bail hearing within seventy-two hours. At the initial appearance, a
judge determines the terms of pretrial release. Before that initial
appearance, the Standing Bail Order requires indigent arrestees to
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complete two forms: an “Affidavit of Substantial Hardship,” and a
“Release Questionnaire.” In the Release Questionnaire, the ar-
restee can provide information about his residence, employment,
family situation, health, and criminal history for the purpose of as-
certaining information that might be relevant to a pre-trial release.
It also asks for the contact information of his nearest living relatives
and of people in the community, who may vouch for his character.
In the Hardship Affidavit, the arrestee can provide information
about his employment, assistance benefits, income, expenses, and
assets to have a public defender appointed.
At the indigent arrestee’s initial appearance, the court sets
the terms of the arrestee’s pretrial release. The judge ensures that
the defendant is aware of the charges against him and reviews his
paperwork to determine whether he is indigent, as contemplated
by the Alabama Rules of Criminal Procedure. See Ala. R. Crim. P.
7.2(a). The Standing Bail Order makes clear that the judge must
impose the least onerous condition that will assure the purposes of
bail are satisfied:
The Court will not require a defendant to post a se-
cured appearance bond that the defendant cannot af-
ford to post, or a secured appearance bond in an
amount less than that contained in the bond schedule
that the defendant can afford to post, if there is a less
onerous condition that would assure the defendant’s
appearance or minimize risk to the public.
The Standing Bail Order, however, does not guarantee an indigent
arrestee release upon a showing of indigency. If the court
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determines at the initial appearance that releasing the indigent de-
fendant on his own recognizance or on an unsecured appearance
bond will not satisfy the purposes of bail—i.e., will not guarantee
his appearance at trial or safeguard the public—the court may re-
quire the posting of a secured appearance bond even if the indigent
arrestee cannot afford it. If the court determines that a secured ap-
pearance bond is necessary, it must detail its findings in a written
order. If the defendant wants to have his bail amount reconsidered,
he may file a motion with the court.
This new system had only been in place for sixteen days
when the district court held the preliminary injunction hearing. As
a result, there was almost no evidence presented regarding how the
system had been implemented. Nevertheless, the district court
concluded that: (1) the Sheriff’s Office was rarely making bail re-
quests; (2) one individual was arrested on April 8, 2018, and was
released on April 13, 2018, after posting a property bond; (3) judges
were not fastidiously filling out their written findings of fact; and
most importantly, (4) it was “not unusual for a judge to set bond
for an indigent defendant in an amount the defendant cannot af-
ford.”
This lawsuit was first filed in February 2017—before the
adoption of the Standing Bail Order—by a group of plaintiffs that
are no longer a part of this case. Hester, the appellant here, did not
move to intervene until August 1, 2017. He filed his intervenor
complaint on March 9, 2018—about two weeks before the Stand-
ing Bail Order was adopted.
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In his intervenor complaint, Hester alleges that he was ar-
rested on August 27, 2017, for possession of drug paraphernalia.
Because he could not afford to post the $1,000 bond required by
the now-defunct bail schedule, he was held for two days before a
magistrate judge could conduct an initial appearance. At that initial
appearance, the magistrate judge explained to Hester the charge
levied against him and how he could secure his pretrial release. But
because he could not afford to post bond, Hester remained de-
tained.
Hester sued six Defendants in his complaint: Matt Gentry—
the Sheriff of Cullman County; Lisa McSwain—the Circuit Clerk
of Cullman County; Joan White and Amy Black—magistrate
judges; and Kim Chaney and Rusty Turner—district judges. He
brought three 42 U.S.C. § 1983 claims: a wealth discrimination
claim, a substantive due process claim, and a procedural due pro-
cess claim. In essence, Hester alleged that the now-defunct bail
system in Cullman County was unconstitutional because it guar-
anteed immediate pre-trial release to wealthy arrestees but im-
posed almost automatic detention orders on indigent arrestees.
On March 12, 2018, three days after filing his complaint,
Hester moved for a preliminary injunction on his wealth-discrimi-
nation claim and his procedural due process claim. On March 26,
2018, as previously discussed, Cullman County instituted a new
bail system as memorialized in the Standing Bail Order. Two days
after that, Sheriff Gentry moved to dismiss Hester’s complaint, in
which he argued that he was not the proper party under § 1983 and
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Ex parte Young, 209 U.S. 123 (1908), because he was not responsi-
ble for the bail policies at issue and, as a result, Hester could not
trace his injury to Sheriff Gentry’s actions.
Sixteen days after the Standing Bail Order was implemented,
the district court held a hearing on Hester’s motion for a prelimi-
nary injunction. At some point between the filing of his complaint
and the injunction hearing—although we do not know precisely on
what date—Hester was released from jail. And five months later,
on September 4, 2018, the district court issued its written order,
concluding that Cullman County’s new bail system unconstitution-
ally discriminated against the indigent by absolutely depriving
them of immediate pretrial release and by denying them proce-
dural due process at their bail hearings. The next day, the district
court denied Sheriff Gentry’s motion to dismiss.
On September 13, 2018, the district court entered a formal
preliminary injunction order specifying the procedures that Cull-
man County would have to follow going forward in order to bring
its bail system in compliance with the Constitution. Those proce-
dures were detailed and expansive. The district court ordered the
Sheriff’s Office to immediately release all criminal defendants from
pretrial confinement unless it was prepared to submit a bail request
for that defendant. If the Sheriff’s Office submitted such a request,
then the Sheriff was obligated to inform the defendant—both orally
and in writing—that a judge would have to find, by clear and con-
vincing evidence at an initial appearance, that he was a “significant
risk of flight or danger to the community.” Despite the fact that
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the County Defendants testified that they would be unable to hold
initial appearances within forty-eight hours, the district court also
ordered the Sheriff to immediately release all criminal defendants
if they did not receive an initial appearance within that period. If
the Sheriff submitted a bail request, the formal order also required
the Sheriff to draft a new questionnaire to submit to criminal de-
fendants that would elicit further information regarding flight risk
and danger to the community. It also ordered the Sheriff to either
provide criminal defendants with liaison deputies, who would as-
sist criminal defendants in filling out this questionnaire, or inform
the judge conducting the initial appearance that the defendant
could not complete the questionnaire without assistance. And the
formal order required the Sheriff to provide criminal defendants
with an affidavit form in which the criminal defendants could pro-
vide information about their financial means. Importantly, the dis-
trict court ordered nothing relating to the Judicial Defendants in
this case—i.e., the other defendants named in Hester’s complaint—
—each of the injunction’s terms were directed only at the Sheriff’s
Office.
Sheriff Gentry immediately appealed the district court’s or-
ders denying his motion to dismiss and issuing the preliminary in-
junction. The remaining Judicial Defendants also filed a notice of
appeal, directed only at the preliminary injunction orders. After
initiating his appeal, however, Sheriff Gentry failed to file an ap-
pendix within the time required and, as a result, we dismissed his
appeal for failure to prosecute, under this Court’s Rule 42-1, on
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January 7, 2019. Following that dismissal, the appeal proceeded
only as between Hester and the Judicial Defendants. On January
30, 2019, however, Hester moved to dismiss the Judicial Defend-
ants’ appeal for lack of appellate jurisdiction, arguing that, because
the injunction bound only the Sheriff, they had no interest in the
appeal. After that motion was filed, we reinstated Sheriff Gentry’s
appeal. We then carried the motion to dismiss with the case.
All in all, we have three issues to address in this appeal: the
district court’s denial of Sheriff Gentry’s motion to dismiss; the dis-
trict court’s issuance of a preliminary injunction; and Hester’s mo-
tion to dismiss the Judicial Defendants from this appeal for lack of
appellate jurisdiction.
II. STANDARDS OF REVIEW
We review a district court’s order granting or denying a pre-
liminary injunction for abuse of discretion. See Baker v. Buckeye
Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988). But we review
de novo a district court’s determination of the facial constitutional-
ity of a statute. See Rodriguez ex rel. Rodriguez v. United States,
169 F.3d 1342, 1346 (11th Cir. 1999).
We review de novo a district court’s order denying a state
officer’s motion to dismiss based on the Eleventh Amendment’s
grant of sovereign immunity. See Summit Med. Assocs., P.C. v.
Pryor, 180 F.3d 1326, 1334 (11th Cir. 1999); Hundertmark v. State
of Fla. Dep’t of Transp., 205 F.3d 1272, 1274 (11th Cir. 2000). Ad-
ditionally, we have discretion to exercise our pendent appellate
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jurisdiction over the denial of any motion to dismiss if it is “inextri-
cably intertwined” with an appealable decision or if “review of the
former decision [is] necessary to ensure meaningful review of the
latter.” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 51 (1995);
accord Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1365
(11th Cir. 1997).
Finally, we determine our own appellate jurisdiction in the
first instance. Savannah Coll. of Art & Design, Inc. v. Sportswear,
Inc., 978 F.3d 1347, 1348 (11th Cir. 2020) (“We have inherent juris-
diction to determine our own jurisdiction.”).
III. ANALYSIS
Before reaching the merits of the appeal, we have some
threshold issues to unpack. The Defendants argued that the district
court should abstain from hearing any part of this case under the
abstention doctrine of Younger v. Harris, 401 U.S. 37, 43–44 (1971).
Because a ruling for the Defendants on that issue would moot the
rest of the discussion, we will begin there. Next, we will turn to
Sheriff Gentry’s motion to dismiss—if we determine that we have
jurisdiction over that motion on appeal, we will decide whether the
district court was correct in denying the motion. After discussing
the Sheriff’s motion to dismiss, we will move on to the Judicial De-
fendants’ own arguments for dismissal—that they are entitled to
absolute judicial immunity for their actions in setting bail. And af-
ter disposing of all threshold issues, we will turn to the injunction
itself.
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A. Younger Abstention
The district court was correct not to abstain from hearing
this case under Younger. Younger abstention “restrain[s] courts of
equity from interfering with criminal prosecutions.” Id. at 44. The
doctrine is “based not on jurisdiction, but on the principles of eq-
uity and comity,” and it commands that “absent extraordinary cir-
cumstances federal courts should not enjoin pending state criminal
prosecutions.” Hughes v. Att’y Gen. of Fla., 377 F.3d 1258, 1262–
63 (11th Cir. 2004) (quoting New Orleans Pub. Serv., Inc. v. Coun-
cil of New Orleans, 491 U.S. 350, 364 (1989)). Under Younger, the
“normal thing to do when federal courts are asked to enjoin pend-
ing proceedings in state courts is not to issue such injunctions.” 401
U.S. at 45.
Younger does not apply here because Hester is not asking us
to enjoin any prosecution. He merely seeks a faster bail determi-
nation, which does not require enjoining or even interfering with
any ongoing or imminent state prosecution. See Walker v. City of
Calhoun, 901 F.3d 1245, 1254 (11th Cir. 2018) (“Younger does not
readily apply here because Walker is not asking to enjoin any pros-
ecution. Rather, he merely seeks prompt bail determinations for
himself and his fellow class members.”); Pugh v. Rainwater, 483
F.2d 778, 781–82 (5th Cir. 1973) 1 (noting that a federal question
1 Opinions issued by the former Fifth Circuit prior to October 1, 1981, are
binding precedent in our Circuit. Bonner v. City of Prichard, 661 F.2d 1206,
1207 (11th Cir. 1981) (en banc).
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whose “resolution . . . would [only] affect state procedures for han-
dling criminal cases . . . is not ‘against any pending or future court
proceedings as such’” (quoting Fuentes v. Shevin, 407 U.S. 67, 71
n.3 (1972))), aff’d in part and rev’d in part sub nom., Gerstein v.
Pugh, 420 U.S. 103 (1975)).
Gerstein is instructive on this point. In that case, a class of
Florida detainees sought injunctive relief to receive faster probable
cause determinations. 420 U.S. at 106–07. The state argued that
Younger should have barred the claim. See id. at 108 n.9. But the
Supreme Court disagreed, making clear that Younger did not apply
because “[t]he injunction was not directed at the state prosecutions
as such, but only at the legality of pretrial detention without a ju-
dicial hearing, an issue that could not be raised in defense of the
criminal prosecution.” See id. The same is true here. Because
Hester could not have challenged in state court the issues he has
raised in this federal action, Younger abstention is inappropriate.
Thus, the district court was correct to deny the Defendants’ re-
quests to abstain from hearing this case.
B. Sheriff Gentry’s Motion to Dismiss
The district court was also correct to deny Sheriff Gentry’s
motion to dismiss. Sheriff Gentry asked the district court to dismiss
Hester’s complaint against him under Federal Rules of Civil
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Procedure 12(b)(1) and 12(b)(6). His motion raised three alterna-
tive grounds for dismissal: failure to state a claim, lack of standing,
and sovereign immunity. The district court denied the Sheriff’s
motion in full.
Our precedent makes clear that the only portion of the order
over which we have automatic jurisdiction is the ruling on sover-
eign immunity. “A district court’s denial of a motion to dismiss on
Eleventh Amendment immunity grounds is appealable immedi-
ately.” Summit Med., 180 F.3d at 1334.
That is not to say, however, that we may not review the en-
tirety of the order. We may, “within our discretion, exercise juris-
diction over otherwise nonappealable orders under the pendent ap-
pellate jurisdiction doctrine.” Id. at 1335. That doctrine allows a
court of appeals to exercise jurisdiction over otherwise nonappeal-
able orders if those orders are “inextricably intertwined” with an
appealable decision or if “review of the [nonappealable] decision
[is] necessary to ensure meaningful review of the [appealable deci-
sion].” Swint, 514 U.S. at 51.
We had occasion to expound on this rule in Moniz v. City of
Fort Lauderdale, 145 F.3d 1278 (11th Cir. 1998). In Moniz, we con-
sidered whether the doctrine of pendent appellate jurisdiction al-
lowed us to review a district court’s decision on standing in tandem
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20 Opinion of the Court 18-13894
with the district court’s decision on qualified immunity. 2 See id. at
1281 n.3. We concluded that the standing issue was neither “inex-
tricably intertwined” with nor “necessary to ensure meaningful re-
view” of the immunity issue because we could “resolve the quali-
fied immunity issue in [the] case without reaching the merits of ap-
pellants’ challenge to Moniz’s standing.” Id. (quoting Swint, 514
U.S. at 50-51) ; see also Summit Med., 180 F.3d at 1335 (“As in
Moniz, we may resolve the Eleventh Amendment immunity issue
here without reaching the merits of standing.”).
In this case, unlike in Moniz and Summit Medical, Sheriff
Gentry is entitled to immediate appellate review of both a denial of
his sovereign immunity and the district court’s issuance of a per-
manent injunction. The two remaining issues—the two that are
not immediately appealable—are standing and failure to state a
claim. But because a litigant requires both in order to obtain a pre-
liminary injunction, we are permitted to exercise our pendent ap-
pellate jurisdiction to review the entirety of the district court’s or-
der denying Sheriff Gentry’s motion to dismiss. Indeed, without
standing or a viable legal claim, a litigant is not entitled to a prelim-
inary injunction. Thus, exercising our pendent appellate jurisdic-
tion to review the standing and pleading issues, over which we do
2 A district court’s denial of a motion to dismiss based on qualified immunity,
like sovereign immunity, is immediately appealable. See Summit Med., 180
F.3d at 1335 n.9.
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not have automatic appellate jurisdiction, is “necessary to ensure
meaningful review” of the preliminary injunction.
In the motion to dismiss, Sheriff Gentry—despite nominally
raising three different bases for relief—rests his argument on essen-
tially one point: that because he is not the individual responsible
for writing Cullman County’s bail policy or the individual bail or-
der under the Standing Bail Order, he is not the proper defendant
in this case. It is for this reason that Sheriff Gentry argues that he
is entitled to sovereign immunity, that Hester fails to state a claim,
and that Hester lacks standing. But no matter how the argument
is framed, it fails.
First, Sheriff Gentry is not entitled to sovereign immunity.
To be sure, the Eleventh Amendment’s “fundamental principle of
sovereign immunity limits the grant of judicial authority in
Art[icle] III.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 98 (1984). “States may not be sued in federal court unless they
consent to it in unequivocal terms or unless Congress, pursuant to
a valid exercise of power, unequivocally expresses its intent to ab-
rogate the immunity.” Green v. Mansour, 474 U.S. 64, 68 (1985).
In Ex parte Young, however, the Supreme Court created an excep-
tion to this general principle by holding that a suit challenging the
constitutionality of a state official’s action in enforcing state law is
not a suit against the state. See 209 U.S. at 159–60. Instead, the law
at issue, if found unconstitutional, is void, and therefore does not
“impart to [the official] any immunity from responsibility to the
supreme authority of the United States.” Id. at 160. The Supreme
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22 Opinion of the Court 18-13894
Court also made clear that the way to bring such a suit—the only
way to avoid the shield of sovereign immunity—is to bring a suit
for prospective injunctive relief against the official charged with en-
forcing the law. See id. at 155–56, 159. Because a state cannot au-
thorize an official to do something that violates the Constitution, a
state official who enforces an unconstitutional action is “stripped
of his official or representative character and is subjected in his per-
son to the consequences of his individual conduct.” Id. at 160.
Thus, a federal court has authority, under the Constitution, to
grant “prospective injunctive relief to prevent a continuing viola-
tion of federal law.” Green, 474 U.S. at 68.
Sovereign immunity, however—as well as the Ex parte
Young exception to it—generally applies only to state officials, not
county officials. See Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 280 (1977) (noting that the Eleventh Amend-
ment does not apply to “counties and similar municipal corpora-
tions”). It extends to county officials only when relief against them
would drain the state treasury or the county officials have been en-
listed to carry out state policy. See Lake Country Ests., Inc. v. Ta-
hoe Reg’l Plan. Agency, 440 U.S. 391, 401 (1979) (noting that the
Eleventh Amendment may bar suit against county officials “in or-
der to protect the state treasury from liability that would have had
essentially the same practical consequences as a judgment against
the State itself.”). Sheriff Gentry, as the Sheriff of Cullman County,
is not acting as a state official. Moreover, it is a county policy that
we are reviewing, and the only relief sought is injunctive, not
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18-13894 Opinion of the Court 23
monetary. As a result, Sheriff Gentry is not entitled to Eleventh
Amendment sovereign immunity in the first instance, and we need
not reach the Ex parte Young analysis.
Admittedly, at least some portions of Hester’s challenge to
the bail scheme implicate state law—specifically, the factors to be
considered at a bail hearing and the timing within which that hear-
ing must occur. But even if we were to conclude that Sheriff Gen-
try was thereby enlisted to carry out state policy, he still would not
be entitled to sovereign immunity under Ex parte Young. As our
precedent makes clear:
Personal action by defendants individually is not a
necessary condition of injunctive relief against state
officers in their official capacity. All that is required is
that the official be responsible for the challenged ac-
tion. As the Young court held, it is sufficient that the
state officer sued must, “by virtue of his office, ha[ve]
some connection” with the unconstitutional act or
conduct complained of.
Luckey v. Harris, 860 F.2d 1012, 1015–16 (11th Cir. 1988) (altera-
tion in original) (quoting Ex parte Young, 209 U.S. at 157). And
here it is the Sheriff who is tasked with the portions of the Standing
Bail Order that are relevant to the injunction—specifically, the di-
rective to continue detaining criminal defendants after forty-eight
hours have passed and to provide defendants with certain forms
while in custody. He thus has “some connection” with the alleg-
edly unconstitutional act.
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24 Opinion of the Court 18-13894
Second, Hester has stated a plausible claim for relief against
Sheriff Gentry, meaning that the district court rightfully rejected
Sheriff Gentry’s arguments about plausibility and standing because
Sheriff Gentry was properly named as a defendant. In arguing for
dismissal on this ground, Sheriff Gentry relies on ODonnell v. Har-
ris County, 892 F.3d 147, 163 (5th Cir. 2018), abrogated by Daves
v. Dallas County, 22 F.4th 522(5th Cir. 2022) (en banc), for support.
In that case, the Fifth Circuit concluded that the Sheriff was not the
proper defendant in a § 1983 action challenging unconstitutional
bail procedures, and that the suit was appropriately brought only
against the county judges. See 892 F.3d at 155–56.
The problem with Sheriff Gentry’s reliance on ODonnell 3 is
twofold. First, ODonnell was concerned with whether the Sheriff
was a “policymaker” under § 1983 such that municipal liability
could attach to his actions. See id. at 156. This case, however, does
not seek to impose municipal liability under § 1983. In this respect,
this case is more similar to Pugh v. Rainwater, 483 F.2d 778 (5th
3 Following oral argument in this appeal, the en banc Fifth Circuit in Daves
abrogated its decision in ODonnell. The en banc court, however, did not
reach the standing issue as to whether the Sheriff of Dallas County was the
proper party, leaving that issue to be considered by the en banc court follow-
ing its limited remand on the Younger abstention issue. See Daves, 22 F.4th
at 545.
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18-13894 Opinion of the Court 25
Cir. 1973), 4 in which this Court allowed a constitutional challenge
to bail to proceed against eight judges and other state officials in-
cluding the State Attorney.
Second, the question of whether a state official has been
given sufficient authority to be sued under § 1983 is “a question of
state law.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
ODonnell dealt with a Sheriff’s authority under Texas law, while
this case concerns Alabama law. In Texas, as the ODonnell Court
itself noted, the Sheriff “is legally obliged to execute all lawful pro-
cess and cannot release prisoners committed to jail by a magis-
trate’s warrant.” 892 F.3d at 156 (citing Tex. Code Crim. Pro. arts.
2.13, 2.16, 2.18, and Tex. Loc. Gov’t Code § 351.041(a)). In Ala-
bama, on the other hand, Cullman County’s Standing Bail Order
requires the Sheriff to release criminal defendants—regardless of
how they were arrested—after a specific time period has passed.
See Standing Bail Order at 8 (“In the unlikely event that a defendant
arrested for a bailable offense cannot obtain release by posting the
bond contained in the bond schedule or set in a warrant and cannot
be given a hearing to determine conditions of release within 72
hours after arrest, such a defendant will be released on an appear-
ance bond in the amount of the minimum bond set in Rule 7.2 at
the expiration of the 72-hour period.” (emphasis added)).
4 Opinions issued by the former Fifth Circuit prior to October 1, 1981, are
binding precedent in our Circuit. Bonner v. City of Prichard, 661 F.2d 1206,
1207 (11th Cir. 1981) (en banc).
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26 Opinion of the Court 18-13894
Additionally, in Luckey v. Harris, 860 F.2d 1012 (11th Cir.
1988), a group of indigent plaintiffs sought to challenge the lack of
effective legal representation in Georgia’s state courts. See id. at
1013. We allowed the suit to proceed against both the Governor
of Georgia and a group of judges in the state— even though none
of those defendants “personally” participated in the deprivation of
counsel—because each of the defendants had at least “some con-
nection” to the public-defender scheme at issue. See id. at 1015–
16.
Here, as in Luckey, it is immaterial that Sheriff Gentry is not
personally responsible for drafting the policy at issue. Because he
has the authority, under Cullman County’s currently operative bail
procedures, to release criminal defendants from jail after a specified
amount of time has passed, he has a sufficient connection with the
policy for suit to be brought against him. Thus, the district court
was right to deny Sheriff Gentry’s motion to dismiss. Regardless
of whether Sheriff Gentry is a state official (in which case Ex parte
Young would allow suit) or whether he is a county official (in
which case sovereign immunity does not apply), the Eleventh
Amendment does not shield the Sheriff from litigation. And Hester
has stated a viable § 1983 claim for violation of his rights under the
equal protection and due process clauses. Hester has standing for
these claims because his injury—not being promptly released from
jail—is traceable to the Sheriff’s decision not to promptly release
him from jail. Given this level of authority, we have no trouble
concluding that Sheriff Gentry is the appropriate defendant here,
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18-13894 Opinion of the Court 27
and we therefore conclude that his arguments for dismissal fail.
We thus affirm the district court’s denial of the Sheriff’s motion to
dismiss.
C. Hester’s Motion to Dismiss the Judicial Defendants from
this Appeal
Finally, we reach the only motion filed directly in this Court:
Hester’s motion to dismiss the Judicial Defendants from this appeal
for lack of appellate jurisdiction. Hester’s argument for dismissal—
that the Judicial Defendants may not appeal the entry of an injunc-
tion because the injunction binds only the Sheriff—is in large part
based on an argument that the Judicial Defendants themselves
raised in the first instance. In response to Hester’s motion for a
preliminary injunction, and again in this Court, the Judicial De-
fendants argued that, as sitting judges, they are entitled to judicial
immunity for their actions. And because, according to them, at
least, the injunction has the practical effect of binding their actions
and is enforceable against them through contempt, they argue that
this Court has appellate jurisdiction over their appeal and should
reverse the injunction based on their judicial immunity.
Hester raises the inverse of this argument in his motion to
dismiss before this Court. Here, he argues that the Judicial Defend-
ants may not even appeal the injunction because no part of the in-
junction is directed at them, and, as such, this Court lacks appellate
jurisdiction under 28 U.S.C. § 1292(a)(1).
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28 Opinion of the Court 18-13894
For an order to be appealable under § 1292(a)(1), it must be
a clear and understandable directive from the district court, it must
be enforceable through contempt proceedings if the directive is dis-
obeyed, and it must give some or all of the substantive relief sought
in the complaint. See Alabama v. U.S. Army Corps of Eng’rs, 424
F.3d 1117, 1128 (11th Cir. 2005); Sierra Club v. Van Antwerp, 526
F.3d 1353, 1358 (11th Cir. 2008). But to appeal an order granting
or dissolving a preliminary injunction, “[l]itigants must establish
their standing not only to bring claims, but also to appeal judg-
ments.” Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353 (11th Cir. 2003).
A litigant may appeal only if he is aggrieved by the decision. Id. at
1354. Thus, parties may lack standing to appeal trial court rulings
that do not affect their interests. Id.The Judicial Defendants, in an attempt to establish their
standing to bring this appeal, make three arguments in support of
appellate jurisdiction. They say that: (1) the injunction has the
“practical effect” of enjoining them; (2) even if the injunction does
not directly bind them, it is still enforceable against them through
contempt; and (3) even if the first two arguments fail, this Court
may exercise “pendent party appellate jurisdiction” to hear their
appeal.
Each of these arguments lacks merit. There is little question
here that the injunction, by its very terms, does not require the Ju-
dicial Defendants to do anything, and that the injunction could not
be enforceable against the Judicial Defendants through contempt.
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18-13894 Opinion of the Court 29
Moreover, this Court does not exercise pendent party appellate ju-
risdiction.
The Judicial Defendants first argue that the injunction, de-
spite binding only the Sheriff, has the “practical effect” of enjoining
them as well. They cite Sierra Club as support for this argument.
But in that case, we were concerned with an altogether different
question: whether an order that we unquestionably had appellate
jurisdiction over was only a merits ruling or was also an injunction.
See 526 F.3d at 1358–59 (“Sierra Club points to the district court’s
express declaration that it was not issuing an injunction, but we
conclude this is an instance where substance should control over
form. The district court issued commands of such specificity and
breadth that no litigant would dare violate them. If the Miners had
violated the commands, the district court could have initiated con-
tempt proceedings, and it is not clear to us that the court would
accept ‘But you said it wasn’t an injunction’ as a defense.” (citation
omitted)). Sierra Club said nothing about the issue raised here:
whether an injunction directed at one defendant is appealable by
some other defendant.
And we also note that the injunction does not have the ef-
fect—practically or otherwise—of binding their actions. Nothing
in the injunction prevents the Judicial Defendants from taking any
action they wish. It orders the Sheriff to provide notice to ar-
restees, prevents the Sheriff from continuing to hold arrestees after
forty-eight hours, and orders the Sheriff to deliver forms to the
Clerk of Court. No part of this injunction requires anything of the
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30 Opinion of the Court 18-13894
Judicial Defendants. If they wish to continue scheduling bail hear-
ings more than forty-eight hours after arrest, they may continue to
do so. If they wish to ignore the information that the Sheriff pro-
vides them, they may do that as well. No part of the injunction
requires them to modify their actions in any way.
For this same reason, the Judicial Defendants’ argument that
the injunction is enforceable against them through contempt—as
required for appellate jurisdiction—fails. It is true that a district
court may hold in contempt any entity who acts in concert with an
enjoined party to assist in violating the injunction. See Fed. R. Civ.
P. 65. But even if the Judicial Defendants order the Sheriff to diso-
bey the federal court’s injunction, or jail him for failing to do so,
they would not themselves be participating in the violation of the
injunction.
Under the Supremacy Clause, the federal Constitution is the
“supreme Law of the Land.” U.S. Const. art. VI, cl. 2. If faced be-
tween the decision to obey federal law, as memorialized in the in-
junction, and state law, as memorialized in whatever order the Ju-
dicial Defendants issue, the choice is easy: the Sheriff must follow
the injunction. As such, if and when the Sheriff chooses to obey
state law over federal law, it will be his—and only his—violation of
the injunction. The Judicial Defendants cite no case to the con-
trary. And our conclusion that the district court may not use its
contempt power over the Judicial Defendants is bolstered by the
fact that this is not a question we answer on a blank slate: the dis-
trict court has already made clear, in a written order, that it will not
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18-13894 Opinion of the Court 31
use its contempt power against the Judicial Defendants if they
choose to continue their current bail-setting practices. Specifically,
the district court in its written order concluded that “[b]ecause the
preliminary injunction does not direct the conduct of the judicial
defendants in any manner and because this [c]ourt has no contempt
power over the judicial defendants under the injunction, the judi-
cial defendants are unlikely to succeed in their procedural effort to
present their substantive arguments.” Thus, under the law-of-the-
case doctrine, the issue has been decided. See This That & the
Other Gift & Tobacco, Inc. v. Cobb County, 439 F.3d 1275, 1283
(11th Cir. 2006) (noting that “the law-of-the-case doctrine bars re-
litigation of issues that were decided either explicitly or by neces-
sary implication”).
Finally, the Judicial Defendants’ attempt to have their case
heard based on the doctrine of pendent party appellate jurisdiction
is a nonstarter as this Court does not recognize that doctrine. See
Swint v. City of Wadley, 51 F.3d 988, 1002 (11th Cir. 1995) (“There
is no pendent party appellate jurisdiction.”); see also Haney v. City
of Cumming, 69 F.3d 1098, 1102 (11th Cir. 1995).
In short, because the injunction at issue on appeal: (1) does
not bind the Judicial Defendants on its face or in practice; (2) is not
enforceable against the Judicial Defendants through contempt; and
(3) because no other basis exists to exercise jurisdiction, the Judicial
Defendants’ appeal must be dismissed. And because they will be
excused from this lawsuit, we will not reach their arguments
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32 Opinion of the Court 18-13894
related to judicial immunity. Those questions may be answered
only when properly presented.
D. The Preliminary Injunction
Having concluded that Sheriff Gentry is the appropriate Ap-
pellant and that the district court was right not to abstain from
hearing the case under Younger, we now turn to the merits of the
appeal—the injunction.
In its written order, the district court found that Cullman
County’s bail system violated both the Equal Protection and Due
Process Clauses of the Fourteenth Amendment. The district court
concluded that the bail system impermissibly discriminated against
the indigent by absolutely depriving them of pretrial release and by
denying them procedural due process at their bail hearings.
Our first task is to properly construe the nature of Hester’s
challenge to the bail system. At oral argument, the parties disputed
whether Hester was bringing a facial challenge to the bail system
or an as-applied challenge to the bail system, especially as the dis-
trict court never made clear in its order whether it was construing
the challenge as a facial or an as-applied factual challenge. It is
clear, however, that Hester was neither arrested nor imprisoned
under Cullman County’s current operative bail system. And by the
time of the hearing on the preliminary injunction, Hester had been
released. As such, Hester cannot trace his injury to the current op-
erative bail system, and thus may not challenge it on an as-applied
basis. Cf. Pugh v. Rainwater, 572 F.2d 1053, 1058–59 (5th Cir. 1978)
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 33 of 142
18-13894 Opinion of the Court 33
(en banc) (reconstruing as-applied challenge to Florida bail rules as
facial challenge because Florida had changed the applicable rules
during pendency of litigation); Walker, 901 F.3d at 1267 n.13 (de-
termining only whether the City of Calhoun’s bail scheme is fa-
cially unconstitutional because the bail scheme was amended dur-
ing pendency of litigation).
Moreover, the bail system at issue had only been in place for
sixteen days before the district court held its preliminary injunction
hearing. Indeed, as the district court found in its order: “at the
hearing on Mr. Hester’s motion, the defendants were able to offer
little evidence concerning the implementation of the new policy.”
And because a factual, as-applied challenge “asserts that a statute
cannot be constitutionally applied in particular circumstances, it
necessarily requires the development of a factual record for the
court to consider.” Harris v. Mexican Specialty Foods, Inc., 564
F.3d 1301, 1308 (11th Cir. 2009). This is because an as-applied chal-
lenge “addresses whether ‘a statute is unconstitutional on the facts
of a particular case or to a particular party.’” Id. (quoting Black’s
Law Dictionary 223 (7th ed. 1999)).
In this case, both the party—Hester—and the facts of his
case are tied to the now-defunct bail scheme in Cullman County,
as the new scheme had been in place only for a very short while
before the district court ruled on its constitutionality. Construing
Hester’s challenge as an as-applied challenge to the new bail
scheme, given the record before us, would violate core justiciabil-
ity principles. Hester’s lawsuit will succeed only if Cullman
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34 Opinion of the Court 18-13894
County’s new scheme is facially unconstitutional—i.e., if Hester
can “establish that no set of circumstances exists under which the
[bail scheme] would be valid.” United States v. Salerno, 481 U.S.
739, 745 (1987).
Our dissenting colleague, however, suggests that, based on
our determination that Hester cannot trace his injury to the current
operative bail system, as he was detained under the pre-Standing
Bail Order bail policies that are no longer in effect, we should con-
clude that Hester lacks standing to raise a challenge against the
Standing Bail Order. See Dis. Op. at 9–12. But based on our bind-
ing precedent in the nearly indistinguishable Rainwater and
Walker cases, we conclude that, as to Hester’s facial challenge to
the Standing Bail Order, we have jurisdiction because Hester’s
challenge is not moot.
It is well-established that, to establish standing, a plaintiff
must have: “(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.” Johnson v. 27th Ave.
Caraf, Inc., 9 F.4th 1300, 1311 (11th Cir. 2021) (quoting Spokeo, Inc.
v. Robins, 578 U.S. 330, 338 (2016)). We have long held that stand-
ing is determined as of the time at which the plaintiff’s complaint
is filed. Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1340 (11th Cir.
2014); Focus on the Family v. Pinellas Suncoast Transit Auth., 344
F.3d 1263, 1275 (11th Cir. 2003); Sims v. Fla., Dep’t of Highway
Safety & Motor Vehicles, 862 F.2d 1449, 1458–59 (11th Cir. 1989).
Where a plaintiff establishes standing at the time he filed his
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18-13894 Opinion of the Court 35
complaint but “[w]hen events subsequent to the commencement
of a lawsuit create a situation in which the court can no longer give
the plaintiff meaningful relief,” the question becomes whether the
case is moot. Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of
Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir. 2000); see
also Coral Springs Street Sys., Inc. v. City of Sunrise, 371 F.3d 1320,
1328 (11th Cir. 2004) (“Mootness can occur due to a change in cir-
cumstances, or . . . a change in the law.”).
When Hester moved to intervene and filed a proposed in-
tervenor complaint in the underlying action, Hester alleged that he
had suffered an injury in fact, i.e., his detention on a bond that he
could not pay due to his indigent status, which he claimed was es-
sentially an automatic detention order. This injury was fairly trace-
able to the challenged conduct of the Defendants and would have
likely been redressed by a favorable judicial decision—a court rul-
ing that Cullman County’s former bail policies were unconstitu-
tional and injunctive relief against those policies. Thus, Hester had
standing at the time he filed his intervenor motion and proposed
intervenor complaint.
The question then becomes whether the Standing Bail Or-
der issued by the presiding circuit judge of Cullman County on
March 26, 2018—issued after Hester was granted leave to intervene
in the case and while the case was still pending in the district
court—renders Hester’s challenge moot or prevents him from rais-
ing any challenge to the new Standing Bail Order policies. Under
our binding precedent in Rainwater and Walker, we conclude that
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36 Opinion of the Court 18-13894
the case is not moot and that we have jurisdiction to hear Hester’s
facial challenge to the Standing Bail Order.
For example, in Rainwater, during the pendency of the liti-
gation, Florida adopted a new rule of criminal procedure govern-
ing bail determinations within the state. See 572 F.2d at 1055, 1058.
Sitting en banc, the former Fifth Circuit noted that, given the new
rule, the record before it “reflect[ed] neither [the rule’s] interpreta-
tion nor application by the courts of Florida,” as it contained “only
evidence of practices under criminal procedures which predate the
adoption of the current Florida rule.” Id. at 1058. Although the
court determined that “[a]s an attack on the Florida procedures
which existed as of the time of trial, the case has lost its character
as a present, live controversy and is therefore moot,” it nonetheless
concluded that Florida’s new rule, “on its face,” did “not suffer such
infirmity that its constitutional application is precluded.” Id. The
former Fifth Circuit further emphasized this conclusion: “We hold
that the new Florida rule is not facially unconstitutional.” Id. at
1059. But, as to any as-applied challenges, the court explained that
“[f]urther adjudication . . . should await presentation of a proper
record reflecting application by” Florida courts. See id. at 1058–59.
This case is virtually identical to Rainwater. As in Rainwa-
ter, there has been almost no evidence presented as to the Standing
Bail Order, and Hester was not detained under the new bail proce-
dures. And, as in Rainwater, as a result of the Standing Bail Order,
Hester’s challenge to Cullman County’s former bail procedures is
now moot. Yet the en banc former Fifth Circuit ruled on the facial
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18-13894 Opinion of the Court 37
challenge to the new Florida bail procedures; we likewise reach
Hester’s facial challenge to the Standing Bail Order.
Moreover, while our predecessor court did not expressly dis-
cuss standing, its decision in Rainwater expressly discussed moot-
ness, which is closely related to the standing doctrine. See Sims,
862 F.2d at 1459 (citing Warth v. Seldin, 422 U.S. 490, 499 n.10
(1975)) (“Mootness and standing are related doctrines. Where a
party challenges standing, the court inquires whether the plaintiff
is entitled to relief. Where mootness is at issue, the court deter-
mines whether judicial activity remains necessary.”). And given its
mootness discussion, we disagree with our dissenting colleague
that the former Fifth Circuit did not conclude it had jurisdiction to
address the facial challenge to the new bail procedures issued dur-
ing the pendency of that litigation. Thus, under Rainwater, Hester
has standing to challenge the Standing Bail Order.
Similarly, in Walker, the plaintiff was arrested and detained,
but could not post bail. 901 F.3d at 1251. While still detained, the
plaintiff sued the city, alleging that the city’s bail procedures were
unconstitutional. See id. at 1251–52. The day after filing suit, the
plaintiff was released, and while the plaintiff’s case was pending,
the city altered the bail policies by issuing a standing bail order. Id.
at 1252. On appeal, we concluded that the district court abused its
discretion in enjoining the standing bail order, reaching the merits
of the plaintiff’s claim even though he was detained under the city’s
former bail procedures. Id. at 1269, 1272; accord id. at 1267 n.13
(stating that the standing bail order facially passed constitutional
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38 Opinion of the Court 18-13894
muster). In so doing, we addressed the city’s argument that the
standing bail order, if constitutional, rendered the plaintiff’s claim
moot. See id. at 1269–71. Specifically, the city contended that “be-
cause a new policy has been promulgated after this litigation began,
which supplanted the original policy, the claim against the original
policy is now moot.” Id. at 1269.
We found the city’s argument without merit. We explained
that “[v]oluntary cessation of allegedly illegal conduct does not de-
prive the tribunal of power to hear and determine the case, i.e.,
does not make the case moot.” Id. at 1270 (quoting Flanigan’s En-
ters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1255 (11th
Cir. 2017) (en banc)), abrogated on other grounds by Uzuegbunam
v. Preczewski, 141 S. Ct. 792 (2021)). Rather, the case was moot
only if this Court had “no reasonable expectation that the chal-
lenged practice will resume after the lawsuit is dismissed.” Id.(quoting Flanigan’s, 868 F.3d at 1255–56). We considered three fac-
tors to determine whether a reasonable expectation existed: (1)
“whether the change in conduct resulted from substantial deliber-
ation or is merely an attempt to manipulate our jurisdiction,” i.e.,
by examining “the timing of the repeal, the procedures used in en-
acting it, and any explanations independent of this litigation which
may have motivated it”; (2) “whether the government’s decision to
terminate the challenged conduct was ‘unambiguous,’” i.e.,
“whether the actions that have been taken to allegedly moot the
case reflect a rejection of the challenged conduct that is both per-
manent and complete”; and (3) “whether the government has
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18-13894 Opinion of the Court 39
consistently maintained its commitment to the new policy or leg-
islative scheme.” Id. (quoting Flanigan’s, 868 F.3d at 1257). Based
on our analysis of these factors, we concluded the case was not
moot. As to the first factor, we doubted the city intended to ma-
nipulate jurisdiction (as opposed to correcting a deficient policy)
but explained that the city was unnecessarily secretive, as it failed
to disclose the process to create the standing bail order. Id. at 1271.
As for the second factor, we explained the city had not changed its
bail policy through a legislative act; instead, a single judge had is-
sued the new bail policy “and, while it is perhaps unlikely, we
[could not] say that this judge might not revert to the original pol-
icy.” Id. And as to the third factor, we concluded that it did “not
cut strongly either way” because the implementation of the policy
was enjoined shortly after its creation by the district court. Id.
As in Rainwater, in Walker this Court addressed the facial
constitutionality of the city’s new bail policy instead of determining
that the plaintiff lacked standing. And, as to the “reasonable expec-
tation” factors for mootness, this case has key factual similarities to
the facts in Walker. For example, the second factor weighs against
a finding of mootness, as the Standing Bail Order was issued by a
single judge in Cullman County, not a legislative body. Addition-
ally, as to the first factor, while the “unnecessarily secretive” con-
cerns as to the creation of the new bail policy present in Walker,
see id., are not present, other concerns weigh in favor of a finding
against mootness, i.e., the Standing Bail Order’s issuance after Hes-
ter intervened in the case and while the case was pending in the
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40 Opinion of the Court 18-13894
district court. Accordingly, Walker likewise supports our determi-
nation that we have jurisdiction to consider Hester’s challenge to
the Standing Bail Order. 5
Concluding we have jurisdiction, we now turn to address
Hester’s wealth-discrimination claim.
5 We also disagree with our dissenting colleague’s assertion that we are
“throw[ing] out” the facts we rely on to establish jurisdiction in analyzing Hes-
ter’s claim. Dis. Op. at 12. Our determinations on this issue are simply based
on the undisputed background below—i.e., Hester was detained under the
pre-Standing Bail Order, and the Standing Bail Order was issued after Hester
was released and while he was litigating in the district court below—and how
that background places this case jurisdictionally under the purview of Rainwa-
ter and Walker. We also conclude that the fact that the district courts in Rain-
water and Walker did not make factual findings on the new bail procedures,
which is unlike the case before us (see Dis. Op. at 12–16), to be a distinction
that does not make a difference in our conclusion that we are limited to con-
sidering only Hester’s facial challenge to the Standing Bail Order and that we
have jurisdiction to consider that challenge. The dissent’s attempt to distin-
guish our precedents in Rainwater and Walker on that basis is a weak read on
which to rely given the district court’s minimal findings of fact concerning the
Standing Bail Order. See Docket 159 at 19 (the district court acknowledged
that “the defendants were able to offer little evidence concerning implemen-
tation of the new policy, but the limited evidence that the defendants did offer
indicates that officials in Cullman County do not always comply with the writ-
ten requirements in the new Standing Order”).
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18-13894 Opinion of the Court 41
1. Equal Protection
The Constitution makes clear that “[n]o State shall . . . deny
to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. But this promise of equal pro-
tection “must coexist with the practical necessity that most legisla-
tion classifies for one purpose or another, with resulting disad-
vantage to various groups or persons.” Romer v. Evans, 517 U.S.
620, 631 (1996). Accordingly, we, as a general matter, examine laws
only to determine whether they bear a rational basis to a legitimate
government interest. See, e.g., Williamson v. Lee Optical of Okla.,
Inc., 348 U.S. 483, 491 (1955). Heightened scrutiny, on the other
hand, is reserved for state laws that burden fundamental rights or
draw lines between suspect classes. As the Supreme Court has di-
rected, we must, in the equal protection context
decide, first, whether [the law] operates to the disad-
vantage of some suspect class or impinges upon a fun-
damental right explicitly or implicitly protected by
the Constitution, thereby requiring strict judicial
scrutiny. . . . If [it does] not, the [law] must still be
examined to determine whether it rationally furthers
some legitimate, articulated state purpose and there-
fore does not constitute an invidious discrimination
in violation of the Equal Protection Clause of the
Fourteenth Amendment.
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).
The Supreme Court has unambiguously held that discrimi-
nation against the indigent, without more, does not implicate a
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42 Opinion of the Court 18-13894
suspect classification—and thus does not trigger strict scrutiny.
See, e.g., Maher v. Roe, 432 U.S. 464, 471 (1977) (“In a sense, every
denial of welfare to an indigent creates a wealth classification as
compared to nonindigents who are able to pay for the desired
goods or services. But this Court has never held that financial need
alone identifies a suspect class for purposes of equal protection
analysis.”); Rodriguez, 411 U.S. at 29 (noting that “this Court has
never heretofore held that wealth discrimination alone provides an
adequate basis for invoking strict scrutiny”).
The Supreme Court, however, has signaled that heightened
scrutiny for claims of wealth discrimination may be appropriate in
certain contexts. And two of those contexts have been in setting
the terms of carceral punishment and ensuring access to judicial
proceedings. See Jones v. Governor of Florida, 975 F.3d 1016, 1030
(11th Cir. 2020) (en banc) (citing Bearden v. Georgia, 461 U.S. 660(1983), and Griffin v. Illinois, 351 U.S. 12 (1956)). That such con-
texts are implicated in a case, however, does not immediately re-
quire the application of heightened scrutiny. In Rodriguez, the Su-
preme Court explained that, in the historical cases in which height-
ened scrutiny applied to claims of wealth discrimination, the
individuals, or groups of individuals, who constituted
the class discriminated against . . . shared two distin-
guishing characteristics: because of their impecunity
they were completely unable to pay for some desired
benefit, and as a consequence, they sustained an ab-
solute deprivation of a meaningful opportunity to en-
joy that benefit.
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18-13894 Opinion of the Court 43
411 U.S. at 20 (emphasis added). In Walker, we similarly noted that
[t]he sine qua non of a Bearden- or Rainwater-style
claim . . . is that the State is treating the indigent and
the non-indigent categorically differently. Only
someone who can show that the indigent are being
treated systematically worse “solely because of [their]
lack of financial resources”—and not for some legiti-
mate State interest—will be able to make out such a
claim.
901 F.3d at 1260 (alteration in original) (quoting Bearden, 461 U.S.
at 661). For heightened scrutiny to apply to a claim of wealth dis-
crimination, then, not only must the claim arise in certain well-de-
fined contexts that the Supreme Court has identified, but the indi-
gent must suffer an absolute deprivation of a government benefit
in that context due solely to their inability to pay for it. See, e.g.,
Jones, 975 F.3d at 1055 (Lagoa, J., concurring).
The question we must answer to resolve this appeal is thus
whether Cullman County’s bail scheme absolutely deprives indi-
gent arrestees of pretrial release solely because of their inability to
pay. We begin this analysis by noting that the right to pretrial re-
lease is not absolute. Rather, it is “conditioned upon the accused’s
giving adequate assurance that he will stand trial and submit to sen-
tence if found guilty.” Rainwater, 572 F.2d at 1057 (quoting Stack
v. Boyle, 342 U.S. 1, 4 (1951)). Indeed, states have “a compelling
interest in assuring the presence at trial of persons charged with
crime.” Id. at 1056. At the same time, however, the accused indi-
viduals “remain clothed with a presumption of innocence and with
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44 Opinion of the Court 18-13894
their constitutional guarantees intact.” Id. For this reason, the res-
olution of “the problems concerning pretrial bail requires a delicate
balancing of the vital interests of the state with those of the individ-
ual.” Id.No one disputes that Cullman County maintains a compel-
ling interest in ensuring that pretrial detainees appear for trial and
do not pose a risk of danger to their community while on release.
See Ala. R. Crim P. 7.2. And Hester does not allege that his bail
amount—or that any bail amount in Cullman County—is higher
than necessary to satisfy those two purposes of bail. For good rea-
son: that would be an Eighth Amendment claim under the Exces-
sive Bail clause, and analysis under the Eighth Amendment pro-
ceeds without reference to ability to pay. See United States v.
James, 674 F.2d 886, 891 (11th Cir. 1982) (“The basic test for exces-
sive bail is whether the amount is higher than reasonably necessary
to assure the accused’s presence at trial.”). Indeed, “we have im-
plicitly held that bail is not excessive under the Eighth Amendment
merely because it is unaffordable.” Walker, 901 F.3d at 1258.
Here, we conclude that indigent pretrial detainees in Cull-
man County are not discriminated against solely based on their in-
ability to pay, and neither do they suffer an absolute deprivation of
a meaningful opportunity to obtain pretrial release. On this point,
we reiterate that bail serves an important purpose. By the posting
of bail, the accused has made a showing—a financial sacrifice—that
he will appear for his trial. Thus, the indigent and the non-indigent
arrestees are not on equal footing—only the latter has made a
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18-13894 Opinion of the Court 45
showing that he will appear for his trial, and he has made that
showing by satisfying the terms of Cullman County’s master bail
schedule. See Rainwater, 572 F.2d at 1057 (approving of the
“[u]tilization of a master bond schedule”). In this way, pretrial de-
tainees who do not secure immediate release are not being discrim-
inated against due to inability to pay—they are being discriminated
against for failure to ensure in the first instance their future appear-
ance at trial.
Although an indigent arrestee cannot secure his immediate
release by satisfying the terms of the master bond schedule, the
Standing Bail Order guarantees indigent arrestees an initial appear-
ance and bail hearing before a circuit judge. At the bail hearing,
the judge is tasked with assessing the accused’s indigency, flight
risk, and likelihood of appearing at trial. See Ala. R. Crim. P. 7.2(a).
The Standing Bail Order makes clear, however, that the judge must
impose the least onerous condition that will assure the purposes of
bail are satisfied:
The Court will not require a defendant to post a se-
cured appearance bond that the defendant cannot af-
ford to post, or a secured appearance bond in an
amount less than that contained in the bond schedule
that the defendant can afford to post, if there is a less
onerous condition that would assure the defendant’s
appearance or minimize risk to the public.
The Standing Bail Order thus adopts a presumption against money
bail, that an indigent arrestee cannot afford, at individualized bail
hearings. At the hearing, the judge may impose a secured
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46 Opinion of the Court 18-13894
appearance bond on the accused only if the judge determines that
there is no less onerous method of ensuring the accused’s appear-
ance at trial. This is not discrimination against the indigent. All
arrestees are presumptively entitled to pretrial release as soon as
they make a showing that they will appear at trial—either by post-
ing bail or by appearing at a hearing and attempting to show
through other means that they will appear at trial.
Our caselaw amply supports the conclusion that Cullman
County’s bail system does not unconstitutionally discriminate
against the indigent. Indeed, this Court has already applied the
Bearden wealth-discrimination framework to the bail context on
two separate occasions. In Rainwater, this Court was tasked with
deciding whether “in the case of indigents, equal protection stand-
ards require a presumption against money bail.” 572 F.2d at 1056.
And in Walker, this Court analyzed “what process the Constitution
requires in setting bail for indigent arrestees.” 901 F.3d at 1251. In
both cases, this Court upheld the constitutionality of money bail
against constitutional challenges.
In an earlier Pugh v. Rainwater decision, our predecessor
court decided the narrow issue of “whether the imprisonment of
an indigent prior to trial solely because he cannot afford to pay
money bail violates his right to equal protection under the Four-
teenth Amendment.” See 557 F.2d 1189, 1192 (5th Cir. 1977), va-
cated in part on reh’g en banc, 572 F.2d 1053 (5th Cir. 1978) (en
banc). The plaintiffs, a class of pretrial detainees, sued a group of
judges and state officials to enjoin the pretrial detention of arrestees
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18-13894 Opinion of the Court 47
without a determination of probable cause and the pretrial deten-
tion of indigent arrestees solely because they could not post money
bail. Id. at 1193. This Court, rehearing the case en banc, acknowl-
edged the “principle that imprisonment solely because of indigent
status is invidious discrimination and not constitutionally permissi-
ble.” 572 F.2d at 1056. At the same time, however, the Court noted
the delicate balance of the competing interests at play: “Florida has
a compelling interest in assuring the presence at trial of persons
charged with crime. Yet such individuals remain clothed with a
presumption of innocence and with their constitutional guarantees
intact.” Id. (footnote omitted).
During the Rainwater litigation, Florida passed a new Rule
of Criminal Procedure that governed bail determinations in the
state: Rule 3.130(b)(4). See id. at 1055; see also In re Fla. Rules of
Crim. Proc., 272 So. 2d 65, 82 (Fla. 1972), amended sub nom., In re
Fla. Rules of Crim. Proc., Amends. to Rules 3.140 & 3.170, 272 So.
2d 513 (Fla. 1973) (adopting new rules of criminal procedure, in-
cluding Rule 3.130(b)(4), “Hearing at First Appearance”). Under
that new rule, Florida mandated that judges consider “all relevant
factors” in determining “what form of release is necessary to assure
the defendant’s appearance.” Id. at 1058 (quoting Rule 3.130(b)(4)).
And this Court interpreted the Rule to require the judge to impose
the least onerous condition that would assure the defendant’s ap-
pearance at trial. Id. at 1058 n.8.
This Court said that the record “contain[ed] only evidence
of practices under criminal procedures which predate the adoption
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48 Opinion of the Court 18-13894
of the current Florida rule.” Id. Thus, it determined that “[a]s an
attack on the Florida procedures which existed as of the time of
trial, the case ha[d] lost its character as a present, live controversy
and [was] therefore moot.” Id. The en banc Court proceeded—as
we do here—to assess only whether the new scheme was constitu-
tional on its face. See id. at 1058–59. As relevant here, the Court
said that “[t]he demands of equal protection of the laws and of due
process prohibit depriving pre-trial detainees of the rights of other
citizens to a greater extent than necessary to assure appearance at
trial and security of the jail.” Id. at 1057 (quoting Rhem v. Mal-
colm, 507 F.2d 333, 336 (2d Cir. 1974)). Therefore, “[t]he incarcer-
ation of those who cannot” meet a master bond schedule’s require-
ments, “without meaningful consideration of other possible alter-
natives, [would infringe] on both due process and equal protection
requirements.” Id. Ultimately, the Rainwater en banc Court found
that Florida’s bail system met this test. In Florida, indigent ar-
restees who could not afford to post bail were given a bail hearing
at which all relevant factors for bail would be considered and the
judge was required to impose the least onerous condition on re-
lease that would satisfy the purposes of bail. That system, the Court
said, passed constitutional muster. See id.In Walker, the plaintiff, alleged that the City of Calhoun,
Georgia, followed a policy of using a secured-money bail schedule
that, in some cases, would jail people before trial for inordinate
amounts of time. 901 F.3d at 1252. Because Walker was arrested
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18-13894 Opinion of the Court 49
on the Monday before Labor Day, for example, he waited eleven
days before receiving his bail hearing. Id.
Shortly after the lawsuit was filed, the City of Calhoun al-
tered the prevailing bail policy by issuing a new standing bail order
that adopted a bail schedule and guaranteed that defendants would
be brought to court within forty-eight hours of arrest. Id. The new
standing order also guaranteed indigent arrestees a public defender
at the bail hearing and adopted a standard of indigency that was
commensurate with the federal poverty guidelines. Id. If the ar-
restee was found indigent at the bail hearing, he would be released
without paying any bail and, if no hearing was held within forty-
eight hours, he would be released on a recognizance bond. Id. “In
summary,” this Court noted that
the Standing Bail Order envisions three forms of re-
lease depending on the type of offense charged and
the financial means of the arrestee. First, arrestees
charged with State offenses within the Municipal
Court’s jurisdiction will be released immediately on a
secured bond if they are able and willing to deposit
money bail in the amount set by the bail schedule.
They can post cash bail themselves or use a commer-
cial surety at twice the amount set by the bail sched-
ule. Second, arrestees charged with State offenses
who do not post bail immediately must wait for a bail
hearing with court-appointed counsel, to take place
within 48 hours from arrest. Those who can prove
they are indigent at the hearing will be released on a
recognizance bond—meaning no bail amount is set,
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50 Opinion of the Court 18-13894
either secured or unsecured. Third, all arrestees
charged with violating City ordinances will be re-
leased on unsecured bond, meaning that they need
deposit no collateral immediately but will be assessed
the bail schedule amount if they fail subsequently to
appear in court.
Id. at 1252–53.
The Walker Court next turned to the appropriate level of
scrutiny, summarizing the relevant Bearden principles as follows:
The sine qua non of a Bearden- or Rainwater-style
claim, then, is that the State is treating the indigent
and the non-indigent categorically differently. Only
someone who can show that the indigent are being
treated systematically worse “solely because of [their]
lack of financial resources”—and not for some legiti-
mate State interest—will be able to make out such a
claim.
Id. at 1260 (quoting Bearden, 461 U.S. at 661); see also Rodriguez,
411 U.S. at 20 (“The individuals, or group of individuals, who con-
stituted the class discriminated against in our prior cases shared
two distinguishing characteristics: because of their impecunity they
were completely unable to pay for some desired benefit, and as a
consequence, they sustained an absolute deprivation of a meaning-
ful opportunity to enjoy that benefit.”).
Citing Rodriguez, the Walker Court noted that an indigent
had to show an absolute deprivation of a benefit in order for
Bearden’s level of heightened scrutiny to apply. 901 F.3d at 1261–
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18-13894 Opinion of the Court 51
62. It concluded that the indigent arrestees did not satisfy that
standard; the plaintiffs did not suffer an absolute deprivation be-
cause they “merely” had to “wait some appropriate amount of time
to receive the same benefit as the more affluent. Indeed, after such
delay, they arguably receive[d] preferential treatment, in at least
one respect, by being released on recognizance without having to
provide any security. Id. Such a scheme does not trigger height-
ened scrutiny.” Id.; cf. Jones, 975 F.3d at 1056 (Lagoa, J., concur-
ring) (noting that a scheme that provides indigents alternative ave-
nues to the attainment of a state-created benefit does not constitute
an absolute deprivation).
After concluding that the indigents did not qualify for
Bearden scrutiny—because they merely had to wait a brief period
of time to obtain their release at a hearing and were thus not de-
prived of it absolutely—the Walker Court concluded that
Walker failed to make the necessary showing that he
is likely to succeed on the merits of his claim that the
Standing Bail order is unconstitutional. Neither the
48-hour window for a bail determination nor the use
of an adversarial bail hearing in lieu of an affidavit-
based process runs afoul of the Constitution.
901 F.3d at 1269.
The district court here was not blind to the existence of
Walker and Rainwater. It examined both cases in its analysis and
concluded that neither compelled a finding that the bail system in
Cullman County was constitutional. It instead found that two
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52 Opinion of the Court 18-13894
salient differences between Walker and this case obligated the op-
posite result—that Cullman County operates its bail system in an
unconstitutional manner. We turn to those differences now.
First, in Walker, the bail order guaranteed a bail hearing to
all criminal defendants who could not post bond within forty-eight
hours. Id. at 1252. This was vitally important to the Walker Court,
both because the Supreme Court in County of Riverside v.
McLaughlin, 500 U.S. 44, 56 (1991), held that forty-eight hours was
an appropriate period of time within which to hold probable cause
determinations and because the Fifth Circuit, in ODonnell, im-
ported that forty-eight-hour rule into the bail context. See Walker,
901 F.3d at 1266–67.
Second, and just as important, the bail order in Walker guar-
anteed indigent arrestees release on a recognizance bond immedi-
ately upon proving their indigency. See id. at 1252 (“If the court
finds that the defendant is indigent under that standard, ‘then
he/she shall be subject to release on recognizance without making
a secured bail.’ If no hearing is held within 48 hours, ‘then the ac-
cused shall be released on a recognizance bond.’”). In other words,
the only purpose of the bail hearing in the City of Calhoun was to
determine whether the arrestee was indigent in reference to federal
poverty guidelines.
In this case, however, indigent arrestees in Cullman County
are entitled to a hearing within seventy-two hours and they are not
released immediately upon a finding of indigency. Rather, at their
initial bail hearings, they must show not only that they are indigent,
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18-13894 Opinion of the Court 53
but also that they are not a flight risk or a danger to the community.
But neither of these differences—neither the wait of only forty-
eight hours rather than seventy-two hours nor the additional con-
siderations of flight risk and danger—compel a departure from the
holdings of Walker and Rainwater, and the district court was
wrong to conclude otherwise.
First, as to the forty-eight-hour requirement, the district
court seemed to conclude that Walker established a bright-line rule
that a bail hearing must be held within forty-eight hours, not sev-
enty-two hours as guaranteed by Cullman County’s Standing Bail
Order. But Walker did nothing of the sort. True, the Walker court
found a bail system constitutional because it provided for hearings
within forty-eight hours. But that timeframe was merely because
the system under consideration imposed that deadline not because
the court mandated it. Thus, the Walker decision did not establish
a bright-line rule. Instead, the Court concluded that a forty-eight-
hour deadline was “presumptively constitutional.” Walker, 901
F.3d at 1266; see also id. at 1267 n.13 (“We are satisfied that
McLaughlin establishes at least a 48-hour presumptive safe harbor
for making bail determinations without deciding if that safe harbor
extends longer.”). Rather, it was the Fifth Circuit, in ODonnell,
that concluded federal due process rights guaranteed a bail deter-
mination within forty-eight hours. 892 F.3d at 160 (“We conclude
that the federal due process right entitles detainees to a hearing
within 48 hours.”).
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54 Opinion of the Court 18-13894
But the Eleventh Circuit was no longer part of the Fifth
when ODonnell was decided, 6 and we are thus free to conclude
otherwise. And there are good reasons to do so. In the federal
criminal system, for example, a district court is free to delay a bail
hearing for arrestees that pose a flight risk or other enumerated fac-
tors by three days after an arrestee’s initial appearance—and that
does not include intervening weekends and holidays. See 18 U.S.C.
§ 3142(f)(2) (“The hearing shall be held immediately . . . unless that
person, or the attorney for the Government, seeks a continuance.
Except for good cause, a continuance on motion . . . of the attorney
for the Government may not exceed three days (not including any
intermediate Saturday, Sunday, or legal holiday).”). Upon a show-
ing of good cause, the bail hearing may be scheduled even more
than three days after the initial appearance. See id.More importantly, the forty-eight-hour window within
which the Supreme Court has mandated probable cause determi-
nations to be held, and which the Fifth Circuit imported into the
bail context, serves a fundamentally distinct purpose from the set-
ting of bail. A probable cause finding determines whether the gov-
ernment has a basis to hold a criminal defendant in the first in-
stance—i.e., whether the state may detain him at all. See Gerstein,
6As the dissenting opinion recognizes, ODonnell is no longer good law in the
Fifth Circuit. Dis.Op. at 41. While it is true that the en banc Fifth Circuit did
not reach the merits of ODonnell’s analysis of the challenge to the bail system,
see Daves, 22 F.4th at 528 (“Our decision today does not reach the merits.”),
we disagree with that analysis, as explained in our decision.
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18-13894 Opinion of the Court 55
420 U.S. at 124–25 (“Whatever procedure a State may adopt, it
must provide a fair and reliable determination of probable cause as
a condition for any significant pretrial restraint of liberty.” (empha-
sis added)). As a matter of logic, this threshold showing that a State
has the ability to arrest and detain a criminal defendant should have
to be made before the State determines the terms of pretrial re-
lease. Though, of course, as a matter of efficiency, it may make
sense to hold both at the same time. See McLaughlin, 500 U.S. at
58. Ultimately, where the constitutional line must be drawn is a
question for a separate case. Here, we simply must determine
whether the seventy-two-hour deadline before us is facially uncon-
stitutional, and we are satisfied that it is not.
Second, the fact that indigent defendants in Cullman County
must show that they are not a flight risk or danger to the commu-
nity in order to secure release, while the defendants in the City of
Calhoun were released immediately upon proving their indigency,
is not constitutionally significant. Nowhere in Walker did we sug-
gest that this additional showing would somehow result in a con-
stitutional infirmity. In fact, we made clear that the City of Cal-
houn took it upon itself to subject indigent arrestees to better treat-
ment than affluent arrestees. See 901 F.3d at 1261–62 (explaining
that after delay indigents experienced waiting for their hearing,
“they arguably receive preferential treatment, in at least one re-
spect, by being released on recognizance without having to provide
any security” and that “[s]uch scheme does not trigger heightened
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56 Opinion of the Court 18-13894
scrutiny under the Supreme Court’s equal protection jurispru-
dence.”)
It may go without saying, but the Equal Protection Clause
does not mandate that the indigent receive preferential treatment.
In fact, “at least where wealth is involved, the Equal Protection
Clause does not require absolute equality or precisely equal ad-
vantages.” Rodriguez, 411 U.S. at 24. Cullman County, however,
has chosen to place all arrestees on equal footing: all are released as
soon as they are able to show that they are not a flight risk or dan-
ger to the community. The affluent satisfy this requirement by
posting bail; the indigent do so by making what, in the eyes of the
County, is an equal showing 7—appearing at a hearing where a
judge determines their indigency, their danger level, and flight risk.
We do not believe that the difference between the hearing
in Walker and the hearing in this case—that, in addition to showing
indigency, an arrestee here also has to show that he is not a flight
risk or danger to the public—is constitutionally significant. Once
7 Although we acknowledge that posting bail is not the equivalent of a judge’s
finding that an arrestee is not a danger to the public, the procedures do account
for the danger factor in that law enforcement is expected to file a “Bail Request
Form” to avoid the release of any arrestee who might be a danger to the pub-
lic. Although that too is not a precise equivalent of the hearing that the indi-
gent undergo, it is consistent with the laudable goal of promoting prompt re-
lease where feasible and consistent with the safety of the public. We therefore
conclude that the hearing provided for in the instant Standing Bail Order is a
“constitutionally permissible secondary option.” See Walker, 901 F.3d at 1260.
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18-13894 Opinion of the Court 57
the arrestee is temporarily detained pending a hearing to determine
indigency, as in Walker, it is eminently reasonable to also deter-
mine in that same hearing the flight risk and danger issues. Indeed,
our Walker and Rainwater decisions provide strong support for the
propriety of the more encompassing hearing provided for in the
instant Standing Bail Order. In Walker, we described Rainwater as
holding:
[T]he court approved the “[u]tilization of a master
bond schedule” without applying any heightened
form of scrutiny. It explained that a bond schedule
“provides speedy and convenient release for those
who have no difficulty in meeting its requirements.”
Of course, if the bond schedule provided “speedy” re-
lease to those who can meet its requirements, it nec-
essarily provided less speedy release to those who
could not. Nevertheless, the Rainwater court upheld
the scheme because it gave indigent defendants who
could not satisfy the master bond schedule a constitu-
tionally permissible secondary option: a bail hearing
at which the judge could consider “all relevant fac-
tors” when deciding the conditions of release.
901 F.3d at 1260 (second alteration in original) (internal citations
omitted) (quoting Rainwater, 572 F.2d at 1057–58). The hearing
provided for in the procedures at issue in Rainwater were not sub-
stantially different from the hearing provided for in the instant
Standing Bail Order. Thus, contrary to the position put forth by
Hester and the district court, we cannot conclude that the
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58 Opinion of the Court 18-13894
additional consideration of flight risk and danger at the hearing is
constitutionally significant.
It is important to reiterate here that bail serves a purpose,
and that purpose is not punitive. Bail is a liberty preserving de-
vice—it balances the community’s interest in security and the de-
fendant’s interest in liberty by allowing that defendant to “deposit
. . . a sum of money subject to forfeiture,” which serves as “assur-
ance of the presence of an accused” at trial. Stack, 342 U.S. at 5.
Since before the days of the Magna Carta, society has used the post-
ing of surety as a mechanism for the accused to secure their pre-
trial release. See Brief for Am. Bail Coal. & Ga. Ass’n of Prof’l
Bondsmen as Amici Curiae Supporting Appellants at 6–8, Hester v.
Gentry (No. 18-13894). So those who can post bail, and those who
cannot, are separated by more than wealth. Only the former group
has shown that the purposes of bail have been satisfied.
We thus will not hold that requiring indigent arrestees to
appear for a hearing and make a showing of their flight risk and
danger to the community mandates heightened scrutiny under
Bearden’s framework of equal protection. The indigent may ob-
tain release upon a showing that they can satisfy the purposes of
bail, by allowing a judge to make written findings about their flight
risk and danger to the community. Thus, the Rodriguez frame-
work mandates that only rational basis review applies to the bail
system. See 411 U.S. at 17 (providing the “framework for our anal-
ysis” requires a court to first determine whether a system “operates
to the disadvantage of some suspect class or impinges upon a
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18-13894 Opinion of the Court 59
fundamental right explicitly or implicitly protected by the Consti-
tution, thereby requiring strict judicial scrutiny,” and, if not, to ap-
ply rational basis review); see also McGinnis v. Royster, 410 U.S.
263, 269–70 (1973) (evaluating a claim that good-time-credit
scheme that benefitted the wealthy who were able to afford bail
violated equal protection under rational basis); ODonnell v.
Goodhart, 900 F.3d 220, 226 (5th Cir. 2018) (“An Equal Protection
Claim that an indigent ‘person spends more time incarcerated than
a wealthier person’ is reviewed for a rational basis.” (quoting Doyle
v. Elsea, 658 F.2d 512, 518 (7th Cir. 1981))), abrogated by Daves, 22
F.4th 522; Smith v. U.S. Parole Comm’n, 752 F.2d 1056, 1059 (5th
Cir. 1985) (same); Doyle, 658 F.2d at 518 (evaluating a claim that
indigents spend more time in prison than the wealthy only for ra-
tional basis).
Under rational basis review, laws must be rationally related
to a legitimate government interest.” Vance v. Bradley, 440 U.S.
93, 97 (1979) (quoting Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312
(1976). Laws “must be upheld against equal protection challenge
if there is any reasonably conceivable state of facts that could pro-
vide a rational basis for the classification” drawn by the law. See
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). “[W]e will
not overturn such a statute unless the varying treatment of differ-
ent groups or persons is so unrelated to the achievement of any
combination of legitimate purposes that we can only conclude that
the legislature’s actions were irrational.” Vance, 440 U.S. at 97.
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60 Opinion of the Court 18-13894
Here, we conclude that Cullman County’s bail system satis-
fies rational basis review. As we held in Rainwater, states maintain
not only a legitimate but a “compelling interest in assuring the pres-
ence at trial of persons charged with crime.” 572 F.2d at 1056. And
Cullman County’s bail system is rationally related to that interest—
requiring defendants to post surety will result in more of those de-
fendants appearing for trial.
Ultimately, this case falls firmly within the purview of Rain-
water. Here, as in Rainwater, only arrestees who have the means
to post bail are immediately released. Those who are not so able
are held for a brief time period before appearing at an individual-
ized bail hearing. At both the hearing in Rainwater and the hearing
here, the judge will consider all relevant factors and must impose
the least onerous condition of release that will satisfy the purposes
of bail—i.e., a secured appearance bond may be imposed on the
indigent only if it is the only method that will assure the presence
of that criminal defendant at trial. 8 In Rainwater, we held that this
8 The Standing Bail Order’s explicit memorialization of this “least onerous con-
dition” requirement separates Cullman County’s bail system from those
which courts have held (or suggested) were constitutionally infirm. For ex-
ample, in Rainwater, we noted that the mechanistic application of a bail sched-
ule, “without meaningful consideration of other possible alternatives,” would
violate the Supreme Court’s wealth-discrimination jurisprudence by automat-
ically imposing money bail on those who are unable to afford it. 572 F.2d at
1057; see also In re Humphrey, 482 P.3d 1008, 1018 (Cal. 2021) (collecting
cases). Here, however, judges must consider an arrestee’s financial situation
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18-13894 Opinion of the Court 61
scheme was constitutional, and we reiterate that holding now. And
Walker likewise supports our holding. Accordingly, we reject this
claim.
2. Due Process
The district court also concluded that Cullman County’s bail
procedures violate arrestees’ rights of procedural and substantive
due process. In this respect, the district court identified four prob-
lems with Cullman County’s system: (1) the lack of adequate notice
of the factors to be considered in setting bail; (2) the lack of a guar-
anteed opportunity to be heard; (3) the lack of a uniform eviden-
tiary standard to be used in denying bail; and (4) the lack of detailed
factual findings. To remedy these supposed deficiencies, the dis-
trict court directed the Sheriff of Cullman County to immediately
release all bail-eligible criminal defendants from pretrial confine-
ment unless it was prepared to submit a bail request for that de-
fendant; if such a request was submitted, to inform the defendant—
both orally and in writing—that a judge would have to find by clear
and convincing evidence at an initial appearance that he was a flight
risk or a danger to the community in order to be detained and to
draft a new questionnaire to provide to the defendants, which
would elicit further information regarding flight risk and danger to
the community; to immediately release all criminal defendants if
they did not receive an initial appearance within forty-eight hours
during his individualized bail hearing and may require money bail only if no
less onerous condition of release would ensure his appearance at trial.
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62 Opinion of the Court 18-13894
of arrest; to provide criminal defendants with liaison deputies who
would assist them in filling out the new questionnaire; and to pro-
vide criminal defendants with an affidavit form in which the de-
fendants could provide information about their financial means.
Despite nominally resting on the doctrines of both proce-
dural due process and substantive due process, the district court did
not significantly rely on the latter for any of its findings. Indeed, it
discussed few substantive due process cases in its analysis, did not
identify any fundamental right at issue, and did not seek to provide
a remedy for any substantive due process violation.
This is unsurprising, as our precedent makes clear that the
substantive due process claim is a nonstarter. Although in Salerno,
the Supreme Court recognized that “[i]n our society liberty is the
norm, and detention prior to trial or without trial is the carefully
limited exception,” it also stated that an arrestee may be incarcer-
ated before trial “if he presents a risk of flight or a danger to wit-
nesses.” 481 U.S. at 749, 755 (internal citation omitted). And the
Supreme Court ultimately permitted even preventive detention if
the arrestee “pose[s] a threat to the safety of individuals or to the
community which no condition of release can dispel.” Id. at 755.
In Walker, this Court analyzed Salerno and concluded that
it was a procedural due process case, not a substantive due process
case. 901 F.3d at 1262–65. Pretrial detainees have no fundamental
right to pretrial release. If they did, bail itself would be unconstitu-
tional. But, of course, it is not—Salerno said as much. And Hester
cannot “avoid the Supreme Court’s holding [in Salerno] by
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18-13894 Opinion of the Court 63
smuggling a substantive due process claim into the Equal Protec-
tion Clause.” Id. at 1264–65; see also Goodhart, 900 F.3d at 228
(“The grant of automatic release smuggles in a substantive remedy
via a procedural harm. That goes too far.”).
Each of the district court’s findings do, however, fit squarely
within the rubric of procedural due process. Procedural due pro-
cess “encompasses . . . a guarantee of fair procedure.” Zinermon
v. Burch, 494 U.S. 113, 125 (1990). In due process analyses, “[t]he
fundamental requirement of due process is the opportunity to be
heard ‘at a meaningful time and in a meaningful man-
ner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Arm-
strong v. Manzo, 380 U.S. 545, 552 (1965)). Due process “is not a
technical conception with a fixed content unrelated to time, place
and circumstances,” but rather is “flexible” and “requires analysis
of the governmental and private interests that are affected.” Id. at
334 (first quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895
(1961) then quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
Thus, a standard analysis under the Due Process Clause proceeds
in two steps: “We first ask whether there exists a liberty or property
interest of which a person has been deprived, and if so we ask
whether the procedures followed by the State were constitution-
ally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011). Dur-
ing that second step, we are guided by the balancing test of
Mathews, in which we look to the nature of the private interest
affected, the risk of erroneous deprivation, the value of additional
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64 Opinion of the Court 18-13894
safeguards, and the government’s interest, including any burdens.
See 424 U.S. at 335.
In the pretrial detention context, procedural due process re-
quires that the procedures used be “adequate to authorize the pre-
trial detention of at least some [persons] charged with crimes,”
whether or not they might be insufficient in some other circum-
stances. Salerno, 481 U.S. at 751 (alteration in original) (quoting
Schall v. Martin, 467 U.S. 253, 264 (1984)). Answering that question
requires “[t]wo separate inquiries”: “First, does preventive deten-
tion . . . serve a legitimate state objective? And, second, are the
procedural safeguards . . . adequate to authorize the pretrial deten-
tion[?]” Schall, 467 U.S. at 263–64 (citations omitted).
There is no question about the first inquiry. As we said in
Rainwater, states maintain not only a legitimate, but a “compelling
interest in assuring the presence at trial of persons charged with
crime.” 572 F.2d at 1056. The question thus becomes whether the
procedural safeguards used by Cullman County are “adequate to
authorize the pretrial detention.”
Ultimately, we conclude—as the Supreme Court did in both
Schall and Salerno—that the procedures presented to us pass that
test, as “there is nothing inherently unattainable about a prediction
of future criminal conduct.” See Salerno, 481 U.S. at 751 (quoting
Schall, 467 U.S. at 278). Or, more specifically, that there is nothing
“inherently unattainable about a prediction” of flight risk or danger
to the community.
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18-13894 Opinion of the Court 65
Cullman County’s procedures are specifically designed to
further the accuracy of the danger to the community and flight risk
inquiries. Before arrestees in Cullman County have their bail set
(or are denied bail), they are presented with two forms that aid the
judge in making a bail determination: an “Affidavit of Substantial
Hardship,” and a “Release Questionnaire.” In the Release Ques-
tionnaire, the arrestee can provide information about his residence,
employment, family situation, health, and criminal history for the
purpose of ascertaining information that might be relevant to a pre-
trial release. It also asks for the contact information of his nearest
living relatives, who may vouch for his character. In the Hardship
Affidavit, the arrestee can provide information about his employ-
ment, assistance benefits, income, expenses, and assets. These two
forms, collectively, provide pretrial detainees notice of the hearing
to take place and give them an opportunity to present information
relevant to the bail determination.
After these forms are filled out, they are presented to the
bail-setting judge, who is guided by fourteen statutorily enumer-
ated factors in making his decision on bail. See Ala. R. Crim. P.
7.2(a). These factors include inquiries into the defendant’s charac-
ter, criminal record, community standing, and employment his-
tory—each directed at ascertaining how likely it is the defendant
will take flight before his next appearance. Cullman County’s form
order—titled, “Order On Initial Appearance and Bond Hearing”—
includes these fourteen factors, and also provides the bail-setting
judge with a fifteenth factor, “Other,” where the judge can
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66 Opinion of the Court 18-13894
enumerate any case-specific consideration that was not adequately
represented in the enumerated factors.
At the bail hearing, the judge must give “the Defendant the
opportunity to make a statement regarding his/her ability to post
the bond currently set in this matter.” 9 And if the judge deter-
mines, after considering the relevant factors, that the setting of bail
is the least onerous condition that will ensure that the purposes of
bail are satisfied, the judge must notate which of the fifteen factors
relevant to the bail determination led him to that conclusion. 10
9 The district court took issue with the Standing Bail Order’s pronouncement
that the court “may elicit testimony about the defendant’s financial condi-
tion.” The district court concluded that this rendered the procedure constitu-
tionally deficient, in that it did not guarantee arrestees the opportunity to be
heard at their bail hearings. But this clause is capable of a constitutional con-
struction—i.e., the court may elicit testimony if the defendant seeks to offer
it. And indeed, the scant evidence presented on the issue is consistent with
this interpretation. The form order that judges must complete after the hear-
ing makes clear that they are to give arrestees the opportunity to speak. And
as the district court itself admitted, the only judge who testified on the mat-
ter—Judge Turner—made clear that he always speaks with arrestees at their
bail hearing, and the “record does not indicate whether other judges in Cull-
man County” deny arrestees that right. Given the forms and record presented,
there is simply no basis to presume that arrestees in Cullman County are de-
nied an opportunity to be heard.
10 The district court also took issue with the form order used by judges in Cull-
man County, preferring instead that the judges announce their findings orally
on the record. But most of the factors Alabama requires judges to consider
refer to binary propositions that either are or are not present in the arrestee’s
case. Requiring judges to make oral findings, which would require the order-
ing of a transcript before review, would inject unnecessary procedural
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18-13894 Opinion of the Court 67
After the hearing, arrestees—if unhappy with their bail de-
termination—are entitled to file a motion to reduce their bond,
which may be granted upon a showing of mere “good cause.” See
Ala. R. Crim. P. 7.4(b). And indigent arrestees are entitled to the
aid of counsel in the filing of that motion.
These safeguards are sufficient, and they are similar to the
procedures that the Supreme Court found “extensive” and “more
exacting” than necessary in Salerno. There, the Supreme Court
was tasked with assessing the constitutionality of the Bail Reform
Act. Salerno, 481 U.S. at 751–52. The Supreme Court noted that
detainees had the right to counsel at the detention hearing and
were permitted to testify, that the judicial officers were guided by
statutorily enumerated factors relevant to the determination and
had to find that bail was necessary by clear and convincing evi-
dence and detail their findings in a written order, and, finally, that
detainees were entitled to appellate review of the detention deci-
sion. See id. The Supreme Court determined that these proce-
dures were “extensive,” “more exacting” than necessary, and “far
exceed[ed] what [it] found necessary to effect limited postarrest de-
tention” in other cases. Id. at 752.
complication into the process. Cf. McLaughlin, 500 U.S. at 53 (noting that
defendants might be disserved by adding procedural complexity into the al-
ready complicated pretrial system); ODonnell, 892 F.3d at 160 (“We decline to
hold that the Constitution requires the County to produce 50,000 written
opinions per year to satisfy due process.”).
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68 Opinion of the Court 18-13894
The differences between Salerno and this case are not so dif-
ferent as to warrant a departure from that holding. The only salient
differences are that detainees in Cullman County are not entitled
to counsel at their initial bail hearing and that judges in Cullman
County are not required to meet the clear and convincing evidence
standard before imposing bail. But both of these differences are
mitigated by Cullman County’s procedure for obtaining review of
the bail determination. Indeed, indigent detainees in Cullman
County are entitled to the aid of counsel in obtaining review of
their bail determinations and can secure a modification of their de-
tention orders upon a showing of “good cause.”
The district court reached the opposite conclusion and
found that the procedures in Cullman County were constitution-
ally infirm by relying on the Fifth Circuit’s decision in ODonnell.
But the facts of that case stand in stark contrast to the case before
us. In its now vacated opinion, the Fifth Circuit found that Harris
County engaged in an unconstitutional “custom and practice” that
resulted in “the automatic imposition of pretrial detention on indi-
gent misdemeanor arrestees.” ODonnell, 892 F.3d at 160–61. The
district court in ODonnell reached that same finding only after con-
ducting an exhaustive review of, inter alia, “nearly 300 written ex-
hibits, in addition to 2,300 video recordings of bail-setting hearings”
in Harris County. ODonnell v. Harris County, 251 F. Supp. 3d
1052, 1061 (S.D. Tex. 2017). The Fifth Circuit, after reviewing that
same record, found that the evidence showed that Harris County
officers “instructed” indigent defendants “not to speak” at bail
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18-13894 Opinion of the Court 69
hearings and that the defendants were “not offered any oppor-
tunity to submit evidence of relative ability to post bond at the
scheduled amount.” 892 F.3d at 153–54.
None of these observations are true of this case. Arrestees
in Cullman County are given paperwork before their bail hearings
that provides them with notice of the upcoming proceeding, and
there is no suggestion that officers (or anyone else for that matter)
instructs them not to speak. And the district court did not con-
clude, nor is there any suggestion in the record, that judges “auto-
matically” impose monetary bail conditions on indigent arrestees.
To the contrary, the Standing Bail Order makes clear that judges
must impose the least onerous condition of release, which will sat-
isfy the purposes of bail.
In short, pretrial detainees in Cullman County are not de-
prived of due process at their bail determinations. They are pro-
vided a hearing before an impartial judge, notice of that hearing,
and there is no evidence that they are being denied an opportunity
to be heard at the hearing. Furthermore, the judge’s bail determi-
nation may be modified upon a showing of good cause, and the
judge must make written findings of fact specifying which factors
he considered in setting the amount of bail. This satisfies the Due
Process Clause.
IV. CONCLUSION
Under our plenary de novo review of the facial constitution-
ality of the current Cullman County bail system, we conclude that
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70 Opinion of the Court 18-13894
the district court erred both in finding that the bail system discrim-
inated against the indigent and in finding that the bail system de-
prived pretrial detainees of procedural due process. Thus, the dis-
trict court also erred in concluding that Hester has shown a sub-
stantial likelihood of success on the merits, and the issuance of the
preliminary injunction was thus in error.
For all these reasons, we AFFIRM the district court’s deci-
sion not to abstain from hearing this case under Younger and
AFFIRM the court’s denial of Sheriff Gentry’s motion to dismiss.
We DISMISS the Judicial Defendants from the present appeal. And
we REVERSE the district court’s entry of a preliminary injunction
and REMAND for further proceedings consistent with this opin-
ion.
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18-13894 ROSENBAUM, J., Dissenting 1
ROSENBAUM, Circuit Judge, dissenting in part:
Cullman County justifies setting bonds indigent arrestees
can’t afford and thereby de facto detaining them under its current
bail practices, based on its interests in ensuring arrestees’ appear-
ances at trial and in protecting the community from arrestees it
deems a danger to the public. No doubt these are valid and com-
pelling interests. And they could justify a bail system where de
facto pretrial detention occurred only when no other means could
reasonably satisfy these interests, and the same rules applied to the
indigent and non-indigent alike.
But that does not describe Cullman County’s bail system.
Not even close.
Rather, risk of appearance failure and danger to the commu-
nity have real relevance in Cullman County’s bail system, if at all,
as they pertain to only the indigent, who can sit in jail for up to a
month or more without having a meaningful opportunity to be
heard on bond. Meanwhile, within ninety minutes of arrest, the
nonindigent bypass both pretrial detention and the County’s stated
concerns about failure to appear and danger by simply paying a
predetermined secured bond that corresponds to the offense for
which they were arrested. That secured bond does not even pur-
port to account for any danger to the community the nonindigent
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2 ROSENBAUM, J., Dissenting 18-13894
arrestees might present. Nor does it consider any actual flight or
failure-to-appear risk. 1
Put simply, in practice, all things being equal between an in-
digent and nonindigent arrestee in Cullman County, only the indi-
gent one will undergo de facto detention. That is different treat-
ment concerning effective detention, based solely on indigent sta-
tus.
Of course, the County has every right to decline to award
lower secured bail amounts that arrestees can pay, if the County
reasonably determines that those bail amounts are necessary to en-
sure the defendant’s appearance and the safety of the public. But
that secured bail must be necessary, and the County cannot choose
to apply the appearance and safety criteria to only the indigent.
Nor can it deprive indigent defendants of due process of law
in imposing de facto detention. But Cullman County doesn’t even
appoint counsel for indigent defendants’ initial bail hearings, and
1 Risk of flight and failure-to-appear risk are not the same thing. While all risks
of flight present failure-to-appear risks, not all failure-to-appear risks qualify as
risks of flight. People who have no intention of fleeing may fail to appear for
various reasons. For example, Judge Turner of Cullman County testified at
the preliminary-injunction hearing that people might miss court because they
don’t have transportation or can’t miss work because they are on a probation-
ary period such as the first 90 days of employment with a new employer.
Though these types of failures to appear may not be acceptable, as Judge
Turner also acknowledged, different and more appropriate fixes are available
to address them than the solutions used for people who flee.
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18-13894 ROSENBAUM, J., Dissenting 3
indigent defendants generally must sit in jail for a month before
their appointed counsel can obtain reconsideration of the bond im-
posed when counsel wasn’t present.
Cullman County judges no doubt act in good faith in apply-
ing Cullman County bail procedures. But that does not remedy
the problems with Cullman County’s bail procedures (and prac-
tices). On the contrary, compounding the problems I have men-
tioned, the judge who imposes bond need not apply any particular
standard of proof when determining that a given bond is necessary
to ensure the defendant’s appearance or the safety of the commu-
nity. He also doesn’t have to state the reasons for his decision, ren-
dering it even harder for counsel to challenge the determination
when the reconsideration motion is finally heard.
In short, Cullman County’s current bail system unconstitu-
tionally violates indigent arrestees’ Fourteenth Amendment equal-
protection and due-process rights. The majority opinion avoids
this conclusion only by disregarding the facts that the district court
found about how Cullman County’s current bail system operates
in practice.
Yet the district court held a two-day evidentiary hearing and
reviewed evidence that revealed the County’s actual practices in
implementing the Standing Bail Order. The parties do not so much
as suggest that the district court’s factual findings are clearly erro-
neous, and the Majority Opinion does not take that step, either.
Nor could it. The record contains no basis to conclude that the
district court’s factual findings are clearly erroneous.
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4 ROSENBAUM, J., Dissenting 18-13894
So we must accept them. And when we apply the law to the
facts the district court found, we must conclude that when it comes
to setting bail (and thus imposing de facto pretrial detention on in-
digent arrestees), the County holds indigent arrestees to a different
and higher standard than nonindigent arrestees. And it does so
based solely on the fact that they are indigent. Not only that, but
the processes Cullman County uses to set bond for the indigent fail
to provide them due process. Because these deficiencies violate the
Fourteenth Amendment, I respectfully dissent.
I divide my discussion into four parts. I begin by explaining
in Section I why the Majority Opinion is not at liberty to ignore the
district court’s factual findings in its analysis. Section II then cata-
logs the district court’s relevant factual findings. In Section III, I
review why pretrial release is important—that is, the significant ad-
vantages pretrial release bestows on a defendant. In Section IV, I
explain why Cullman County’s Standing Bail Order release system
violates the Fourteenth Amendment’s guarantees of equal protec-
tion and due process.
I. The Majority Opinion cannot ignore the district court’s fac-
tual findings
A. We may disregard a district court’s factual findings
only if we find them to be clearly erroneous
Here, the district court entered a preliminary injunction, en-
joining Cullman County’s actual bail practices under the Standing
Bail Order. We have always reviewed for clear error a district
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18-13894 ROSENBAUM, J., Dissenting 5
court’s factual findings supporting an order on a motion for prelim-
inary injunction. See, e.g., S.E.C. v. Unique Fin. Concepts, Inc.,
196 F.3d 1195, 1198 (11th Cir. 1999).
That standard of review applies whether the district court
based its factual findings on live testimony, documentary evidence,
or any other type of admissible evidence. See Fed. R. Civ. P.
52(a)(6) (“Findings of fact, whether based on oral or other evidence,
must not be set aside unless clearly erroneous . . . .”). As the Su-
preme Court has emphasized, the clearly erroneous standard of re-
view governs even “when the district court’s findings do not rest
on credibility determinations, but are based instead on physical or
documentary evidence or inferences from other facts.” Anderson
v. City of Bessemer City, 470 U.S. 564, 574 (1985). We defer to the
original finder of fact not only because she is in a better position to
make determinations of credibility but also because “[t]he trial
judge’s major role is the determination of fact, and with experience
in fulfilling that role comes expertise.” Id.A finding of fact is clearly erroneous only when “the review-
ing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Id. at 573 (citation
and quotation marks omitted). So long as the district court’s ac-
count of the evidence “is plausible in light of the record viewed in
its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently.” Id. at 574. So even when “two
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6 ROSENBAUM, J., Dissenting 18-13894
permissible views of the evidence exist, the factfinder’s choice be-
tween them cannot be clearly erroneous.” Id.B. The Majority Opinion wholly ignores the district
court’s factual findings without finding them to be
clearly erroneous
Hester raised two challenges to the Standing Bail Order.
The first—a facial challenge—alleged that the procedures the
Standing Bail Order calls for violate the Fourteenth Amendment.
But second, Hester also challenged, as the district court explained,
“the way in which Cullman County implements [the Standing Bail
Order]”—that is, Cullman County’s actual practices. For that rea-
son—and without objection by the defendants—after a two-day ev-
identiary hearing, the district court made factual findings about
Cullman County’s actual practices under the Standing Bail Order
and based its entry of the preliminary injunction here at least in part
on those findings.
But nowhere does the Majority Opinion discuss any of those
findings. It doesn’t find them clearly erroneous. Indeed, no party
even argued that they were.
Rather, the Majority Opinion sua sponte just dismisses the
district court’s factual findings about how Cullman County imple-
ments its current bail system. The Majority Opinion does this, con-
trary to Hester’s challenge to Cullman County’s actual practices
and the district court’s treatment of that challenge, by simply de-
ciding that Hester’s challenge was necessarily only a facial
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18-13894 ROSENBAUM, J., Dissenting 7
challenge to the Standing Bail Order. See Maj. Op. at 32–33. In
support of this determination, the Majority Opinion offers two jus-
tifications: (1) “Hester cannot trace his injury to the current oper-
ative bail system” because he was released before it went into ef-
fect, id. at 32; and (2) “the bail scheme at issue here had only been
in place for sixteen days before the district court held its prelimi-
nary injunction hearing,” id. at 33 (emphasis omitted).
Upon examination, though, these reasons don’t hold up. I
address them in reverse order.
To be sure, the bail scheme at issue had been effective for
sixteen days before the district court’s evidentiary hearing. But as
Section II of this dissent—which summarizes the evidence taken at
the hearing—shows, that was more than enough time for the
County to establish certain uniform practices under the newly
adopted Standing Bail Order. In fact, the district judge based her
factual findings about Cullman County’s actual bail practices on
testimony from the Sheriff himself and from one of only two Cull-
man County district judges who preside over bond hearings—the
very Cullman County employees who are responsible for imple-
menting the Standing Bail Order’s procedures. It is difficult to im-
agine that anyone else would have been more qualified to testify to
the County’s actual practices under the Standing Bail Order.
The district court’s factual findings show that certain Cull-
man County bail practices under the Standing Bail Order do not
conform to the Standing Bail Order and never did. But they also
show that Cullman County does apply some uniform procedures
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8 ROSENBAUM, J., Dissenting 18-13894
when it sets bail—those procedures just are not true to the Stand-
ing Bail Order.
To be sure, the district court noted that “the defendants
were able to offer little evidence concerning the implementation of
the new policy,” but it also found that the evidence established
Cullman County engages in certain uniform practices that diverge
from what the Standing Bail Order calls for.
For example, the district court found without qualification
that “officials in Cullman County do not handle bail requests in a
manner consistent with the new standing order.” While I discuss
in Section II of this dissent how the two processes differ, the point
for now is that the district court made specific factual findings
about how some of Cullman County’s actual bail practices do not
follow the Standing Bail Order.
And conspicuously, no party even suggests that the district
court’s factual findings about Cullman County’s implementation
of the Standing Bail Order were incorrect or unfair because they
were based on sixteen days of functioning.
That the Standing Bail Order had been in effect for sixteen
days when the evidentiary hearing occurred does not somehow
void the resulting evidence and corresponding factual findings
about how Cullman County uniformly applied the Standing Bail
Order to all state-court arrestees throughout that time. And that is
especially so when Cullman County has not even argued that the
evidence on which the district court relied does not provide an
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18-13894 ROSENBAUM, J., Dissenting 9
accurate picture of what Cullman County’s actual bail practices
are. That a longer period of operation might have allowed for the
presentation of evidence about more facets of how Cullman
County executes the Standing Bail Order likewise does not provide
a reason to dismiss the district court’s factual findings about the as-
pects of Cullman County’s bail practices that the evidence did illu-
minate. These rationales do not even suggest that the district
court’s view of the evidence before it was not at least “plausible,”
let alone support a “definite and firm conviction that a mistake has
been committed.” See Anderson, 470 U.S. at 574.
So the mere fact that Cullman County had been operating
under the Standing Bail Order for sixteen days at the time of the
evidentiary hearing does not excuse the Majority Opinion from its
duty to either explain why the facts the district court found are
clearly erroneous (a task even the defendants do not ask the Court
to engage in) or conduct its analysis by applying the law to the facts
the district court found. Yet the Majority Opinion does neither be-
fore wholesale jettisoning the district court’s factual findings.
As for the Majority Opinion’s reasoning that “Hester cannot
trace his injury to the current operative bail system” because he
was released before it went into effect, Maj. Op. at 32, readers
might notice that sounds an awful lot like a reason why Hester
lacks standing to challenge the Standing Bail Order at all. We have
explained that to establish standing, an Article III jurisdictional re-
quirement, a plaintiff must show an injury in fact that is fairly trace-
able to the defendant’s conduct, and he must demonstrate that the
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10 ROSENBAUM, J., Dissenting 18-13894
injury will likely be redressed by a favorable decision from us.
Johnson v. 27th Ave. Caraf, Inc., 9 F.4th 1300, 1311 (11th Cir. 2021).
Here, the Majority Opinion concedes that Hester can’t show that
the injury he suffered is related in any way to the Standing Bail Or-
der, which seems to suggest that Hester lacks standing to challenge
it.
The Majority Opinion sidesteps this sticky standing stum-
bling block by viewing Hester’s challenge to the current bail sys-
tem through the lens of mootness as it pertains to Hester’s chal-
lenge to Cullman County’s pre-Standing Bail Order bail system.
See Maj. Op. at 34–40. As the Majority Opinion’s reasoning goes,
because Cullman County stopped operating under its pre-Standing
Bail Order system when it adopted the Standing Bail Order, Hes-
ter’s efforts to secure injunction of the pre-Standing Bail Order sys-
tem are moot. See id. at 36 (“Hester’s challenge to Cullman
County’s former bail procedures is now moot.”). But, the Majority
Opinion concludes, Hester’s challenge still survives the County’s
adoption of the Standing Bail Order under the voluntary-cessation
exception to mootness. See id. at 38–40.
Under that exception, voluntary cessation of allegedly illegal
conduct does not necessarily render a case moot and deprive the
court of jurisdiction. Flanigan’s Enters. Inc. of Ga. v. City of Sandy
Springs, 868 F.3d 1248, 1255 (11th Cir. 2017) (en banc), abrogated
on other grounds by Uzuegbunam v. Preczewski, 141 S. Ct. 792(2021). That’s to prevent a defendant from ceasing its allegedly
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18-13894 ROSENBAUM, J., Dissenting 11
offensive conduct just long enough to obtain dismissal of a lawsuit
and then reinstate the complained-of behavior. See id.We have explained that the voluntary-cessation exception
does not apply when “the totality of th[e] circumstances persuades
the court that there is no reasonable expectation that the govern-
ment entity will [return to its prior allegedly offending conduct].”
Id. at 1257. I assume without deciding that the Majority Opinion
is right that the voluntary-cessation exception applies here.
But in that case, the entire basis for concluding this matter is
not moot is that the County may continue to violate state arrestees’
rights under the Standing Bail Order in the same ways Hester al-
leged it did before it adopted and implemented the Standing Bail
Order—mainly by continuing to apply different considerations to
the indigent and nonindigent when making release decisions, and
by continuing to impose secured bonds indigent defendants cannot
meet when less restrictive conditions will satisfy the County’s con-
cerns.
Yet the Majority Opinion then just dismisses the district
court’s factual findings showing that, in fact, in implementing the
Standing Bail Order, Cullman County has continued these very
practices that Hester complained of when he challenged the origi-
nal policy. As the district court explained, “[T]he mootness doc-
trine does not foreclose Mr. Hester’s efforts to obtain relief because
although the Cullman County Circuit Court has revised its written
criminal pretrial procedures, the record demonstrates that the de-
fendants do not fully comply with the new written procedures.” In
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12 ROSENBAUM, J., Dissenting 18-13894
other words, the district court concluded that the voluntary-cessa-
tion doctrine saved the case from mootness, based on Cullman
County’s actual practices under the Standing Bail Order—not on
the face of the Standing Bail Order itself.
But on appeal, on the merits, the Majority Opinion ignores
the factual findings that establish the very basis for why the case is
not moot: that the County uniformly implements the Standing
Bail Order not strictly by the Order’s terms but in a way that con-
tinues some of the very same practices Hester challenged as uncon-
stitutional before the County adopted the Standing Bail Order.
The Majority Opinion cannot have it both ways. Either the
case as it relates to the County’s pre-Standing Bail Order proce-
dures is moot because the County ceased all aspects of its chal-
lenged pre-Standing Bail Order conduct when it adopted the Stand-
ing Bail Order—in which case we lack jurisdiction—or the case is
not moot because the County allegedly continued at least some of
its challenged pre-Standing Bail Order practices after adopting the
Standing Bail Order—in which case we must consider the district
court’s factual findings about what those continuing practices
were.
Instead, though, the Majority Opinion blazes a third and un-
authorized path: without finding them to be clearly erroneous, the
Majority Opinion, on the merits, simply throws out the facts the
voluntary-cessation exception necessarily relies on to establish ju-
risdiction and skips any review of Hester’s claim and the district
court’s analysis based on those factual findings. I am unaware of
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18-13894 ROSENBAUM, J., Dissenting 13
anything that allows the Majority Opinion to do that. Nor does the
Majority Opinion’s citation of Pugh v. Rainwater, 572 F.2d 1053(5th Cir. 1978) (en banc), and Walker v. City of Calhoun, 901 F.3d
1245 (11th Cir. 2018), save the day for it.
C. Contrary to the Majority Opinion’s contention, no
precedent authorizes the Majority Opinion to wholly
dismiss the district court’s findings without finding
them to be clearly erroneous
In Rainwater, the plaintiffs, Florida pretrial detainees, chal-
lenged certain aspects of Florida’s bail system as it existed when the
plaintiff detainees brought suit. See Rainwater, 572 F.2d at 1055.
After the district court ruled on the constitutionality of the Florida
plaintiffs’ claims about that bail system and while the case was
pending on appeal before our predecessor Court, Florida’s Su-
preme Court adopted a new bail system. Id. The Former Fifth
Circuit found that the Florida plaintiffs’ claims about the original
bail system were moot. Id. at 1058-59; see also id. at 1059 n.10. But
it facially reviewed the constitutionality of the newly adopted bail
system. See id. at 1059. Our predecessor Court did not explain the
jurisdictional basis allowing it to do so.
Rainwater does not justify the Majority Opinion’s decision
to dismiss the district court’s factual findings here. For starters, in
Rainwater, there were no district-court findings about the way the
new Florida rule operated because the new Florida rule was never
in effect when Rainwater was pending before the district court. So
it was impossible for our predecessor Court to have ignored factual
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14 ROSENBAUM, J., Dissenting 18-13894
findings about the new system. That’s very different from the sit-
uation here, where Cullman County’s new system was operational
when the district court held its two-day evidentiary hearing, and
the district court heard evidence and made factual findings about
the County’s actual new practices.
Not only that, but the Rainwater Court never went through
any jurisdictional analysis before upholding Florida’s new bail rule.
The Majority Opinion invokes Rainwater’s acknowledgment of
the mootness of the challenge there to the old bail system to try to
bootstrap an imagined holding about why the Rainwater Court en-
joyed jurisdiction to rule for the first time on the new bail rule. See
Maj. Op. at 36–37.
But our decision on the merits in Rainwater after failing to
acknowledge or address the jurisdictional question remaining after
the Court declared the challenge to the old system there moot did
not create precedent on whether the Court actually enjoyed juris-
diction under the circumstances of the case. See In re Bradford, 830
F.3d 1273, 1278 (11th Cir. 2016). As we have said, “when it comes
to questions of jurisdiction, we are bound only by explicit hold-
ings.” Id. So for this reason and because Rainwater did not involve
any factual findings on the new rule there, Rainwater obviously
could not have created precedent for the proposition that only a
facial challenge to a newer policy can survive the mooting of an old
policy, when a district court reviews evidence and makes factual
findings about the actual operation of the newer policy.
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18-13894 ROSENBAUM, J., Dissenting 15
As for Walker, it is similarly uninstructive here. In Walker,
Georgia arrestees challenged the City of Calhoun’s then-existing
bail system. See 901 F.3d at 1251–52. While the case was pending,
the City of Calhoun altered its prior bail policy by issuing a standing
bail order. Id. at 1252. The district court enjoined the new policy
because it found that the standing bail order’s stated procedures
were unconstitutional. See Walker v. City of Calhoun, No. 4:15-
CV-170-HLM, 2016 WL 361612, at *11 (“[A]lthough the Standing
Order attempts to remedy the deficiencies of the earlier bail policy,
it simply shortens the amount of time that indigent arrestees are
held in jail to forty-eight hours. As discussed above, however, any
detention based solely on financial status or ability to pay is imper-
missible.”) (N.D. Ga. Jan. 28, 2016); Walker v. City of Calhoun, No.
4:15-CV-0170-HLM, 2017 WL 2794064, at *3 (N.D. Ga. June 16,
2017) (“[T]he Court rejects Defendant’s contention that the Stand-
ing Bail Order, as it is presently worded, is constitutional.”).
The Walker district court never purported to determine, nor
did it make any factual findings purporting to determine, whether
the way Calhoun implemented its new bail policy complied with
the terms of the new policy there. So like the situation in Rainwa-
ter, the Walker record contained no relevant factual findings for us
to grapple with on appeal. And that is why Walker construed the
challenge to the new policy there as a facial one only.
But once again, that is not the situation here. Rather, as I
have noted, Hester (on behalf of himself and an uncontested class
of “all state-court arrestees who are or who will be jailed in
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16 ROSENBAUM, J., Dissenting 18-13894
Cullman County who are unable to pay the secured monetary bail
amount required for their release”) challenged not only the Stand-
ing Bail Order itself but also how Cullman County implemented it.
And significantly, following a two-day evidentiary hearing, the dis-
trict court made factual findings about the County’s actual prac-
tices, which it found did not comply with the letter of the Standing
Bail Order.
So Walker, which involved no similar challenge to the City’s
new policy as implemented and no similar factual findings, pro-
vides no basis for the Majority Opinion to wholly dismiss the dis-
trict court’s factual findings here and recast the case as one involv-
ing a facial challenge only. Put simply, that Rainwater and
Walker—where the district courts made no factual findings about
how the bail system at issue actually operated—resolved their chal-
lenges as only facial challenges cannot support the Majority Opin-
ion’s decision to rid itself of the factual findings the district court
here made about how Cullman County’s bail system does actually
function and to ignore those facts in its merits analysis.
To sum up, Hester sought to enjoin not only the Standing
Bail Order itself but also Cullman County’s actual practices under
the Standing Bail Order. Then, the district court heard and re-
viewed evidence about how Cullman County implemented its
Standing Bail Order. Ultimately, the district court made factual
findings about that and held, based on those factual findings, that
Cullman County’s actual practices under the Standing Bail Order
were unconstitutional. No party alleged on appeal that the district
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18-13894 ROSENBAUM, J., Dissenting 17
court’s factual findings about Cullman County’s uniform practices
under the Standing Bail Order were clearly erroneous.
And the district court’s factual findings about those prac-
tices—that, under the Standing Bail Order, the County continued
the practices from its old system that Hester challenged—serve as
the basis for why we have jurisdiction under the voluntary-cessa-
tion doctrine to consider Hester’s case on appeal. But when it
comes to the merits, the Majority Opinion—at the same time it re-
lies for jurisdiction on the voluntary-cessation doctrine—sua
sponte dismisses the district court’s factual findings showing that
Cullman County’s practices under the old policy continued under
the Standing Bail Order. And it does so based on reasons that just
don’t stand up and precedent that can’t support its actions.
I respectfully disagree that we have the option of ignoring
the district court’s factual findings here. See Otto v. City of Boca
Raton, ___ 4th ___, No. 19-10604, 2022 WL 2824907, *12 (11th Cir.
July 20, 2022) (Jordan, J., dissenting) (“From my perspective, what
the panel majority did here—ignoring and/or revising the district
court’s factual findings and failing to apply the clear error stand-
ard—is seemingly becoming habit in this circuit. If this trend con-
tinues, the bench and bar will be forgiven for thinking that a district
court’s factual findings are only inconvenient speed bumps on the
road to reversal.”) (internal citations omitted). And when we con-
sider those factual findings in our legal analysis, there’s no doubt
that Cullman County’s current bail practices violate the Four-
teenth Amendment. Conspicuously, the Majority Opinion does
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18 ROSENBAUM, J., Dissenting 18-13894
not assert otherwise; it simply (impermissibly) dismisses those in-
convenient factual findings.
II. Facts
For that reason, I turn my attention to the relevant facts that
the district court found. But to enable a fuller understanding of
those facts, I first discuss the relevant Alabama state bail frame-
work.
A. Alabama entitles all individuals (except those charged
with a capital felony or a crime that could turn into a
capital felony) to “bail as a matter of right”
Alabama’s Constitution ensures that “all persons shall, be-
fore conviction, be bailable by sufficient sureties, except for capital
offenses, when the proof is evident or the presumption great . . . .”
Ala. Const. art. 1, § 16. In line with the Alabama Constitution’s
decree, Alabama statutory law promises that “[i]n all cases other
than those specified in subsection (a) of Section 15-13-3,[ 2] a
2 Like Alabama’s Constitution, § 15-13-3(a) exempts from this right those
charged with capital offenses and similar offenses that could result in a capital
charge:
(a) A defendant cannot be admitted to bail when he is charged with an
offense which may be punished by death if the court is of the opinion,
on the evidence adduced, that he is guilty of the offense in the degree
punishable capitally, nor when he is charged with a personal injury to
another which is likely to produce death and which was committed
under circumstances such as would, if death arises from such injury,
constitute an offense which may be punished by death.
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18-13894 ROSENBAUM, J., Dissenting 19
defendant is, before conviction, entitled to bail as a matter of right.”
Ala. Code 1975 § 15-13-2. Similarly, Rule 7.2, Ala. R. Crim. P., pro-
vides for every defendant who is charged with an offense that Ala-
bama has deemed “bailable as a matter of right” to be released be-
fore trial on his own personal recognizance or on an appearance
bond (meaning an unsecured bond) unless the court finds that his
release will not reasonably assure his appearance or that his release
“will pose a real and present dangers to others or to the public at
large.”
When it comes to bail conditions, Alabama law defines “per-
sonal recognizance” to mean “release without any conditions of an
undertaking relating to, or a deposit of, security.” Ala. R. Crim. P.
7.1(a). It defines “appearance bond” as “an undertaking to pay to
the clerk of the . . . court . . . a specified sum of money upon the
failure of a person released to comply with its conditions.” Ala. R.
Crim. P. 7.1(b). In other words, an appearance bond does not re-
quire a person released under it to pay anything to be released. It
likewise does not require a person to pay anything ever if he makes
all court appearances and otherwise complies with his conditions
of release. Sometimes this type of bond is called an “unsecured
bond.”
In contrast to an “appearance bond,” a “secured appearance
bond,” sometimes called simply a “secured bond,” means “an
Ala. Code. 1975 § 15-13-3(a).
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20 ROSENBAUM, J., Dissenting 18-13894
appearance bond secured by deposit with the clerk of security
equal to the full amount thereof.” Ala. R. Crim. P. 7.1(c). So a
person whose conditions of release include a secured bond must
pay money (to the clerk directly or to a third party who then pays
money to the clerk) to obtain release.
Alabama law imposes no standard of proof by which an Al-
abama judicial officer must find that a defendant’s release condi-
tions will not reasonably assure his appearance or that the defend-
ant “pose[s] a real and present danger[] to others or to the public at
large” if he is released on his own recognizance or on an unsecured
bond.
If a defendant cannot pay a scheduled bail amount upon his
arrest and must later appear before an Alabama judicial officer for
a determination of release conditions and if that officer concludes
that a defendant does not qualify for release on his own recogni-
zance or an unsecured bond, “the court may impose the least on-
erous condition or conditions contained in Rule 7.3(b) that will rea-
sonably assure the defendant’s appearance or that will eliminate or
minimize the risk of harm . . . .” Id. In so doing, the Alabama
judicial officer “may take into account” the fourteen considerations
set forth at Rule 7.2(a), Ala. R. Crim. P., and repeated in the Major-
ity Opinion at 5–6.
Alabama law defines “indigent” under the Alabama Rules of
Criminal Procedure as meaning “a person who is financially unable
to pay for his or her defense.” Ala. R. Crim. P. R. 6.3. But it states
no objective criteria for evaluating whether any given defendant
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18-13894 ROSENBAUM, J., Dissenting 21
qualifies as “indigent.” Rather, the definition of “indigency” is a
relative one dependent on the circumstances. In particular, to as-
sess indigency, Alabama law requires the judge to “recognize abil-
ity to pay as a variable depending on the nature, extent and liquid-
ity of assets, the disposable net income of the defendant, the nature
of the offense, the effort and skill required to gather pertinent in-
formation and the length and complexity of the proceedings.” Ala.
Code 1975 § 15-12-5(b).
B. The district court found that Cullman County’s ac-
tual bail practices after it adopted the Standing Bail
Order imposed two altogether different bail standards
on the indigent and nonindigent, resulting in the de-
tention of indigent defendants when similarly situ-
ated nonindigent defendants were not detained
With this general understanding of Alabama law as it gov-
erns pretrial release in mind, I turn now to the facts here. Hester
alleged he was arrested on July 27, 2017, on a misdemeanor charge
of possession of drug paraphernalia and was held on a $1,000 se-
cured bond under Cullman County’s pre-Standing Bail Order sys-
tem. He asserted his bond was set according to the then-existing
bail schedule, with no inquiry into his ability to pay or the necessity
to detain him.
Four days after his arrest, on August 1, 2017, Hester filed his
original intervenor complaint in this case. Sometime before the
Standing Bail Order went into effect on March 26, 2018, Hester was
released from jail.
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22 ROSENBAUM, J., Dissenting 18-13894
After that happened, in April 2018, over two days, the dis-
trict court held an evidentiary hearing on Hester’s motion for a pre-
liminary injunction. During that hearing, the district court heard
testimony from four witnesses, including Stephen Demuth, Hes-
ter’s expert witness in statistical analysis and quantitative research
methods, particularly as those methods relate to pretrial detention
and release processes; Judge Truman Morrison, a Superior Court
judge for the District of Columbia and Hester’s expert witness in
bail-setting practices; Sheriff Kevin Gentry; and Judge Wells
Turner, a district judge for Cullman County. The parties filed
nearly sixty exhibits in conjunction with the motion. Among these
were the expert reports of Demuth and Judge Morrison; several re-
ports and studies on bail and pretrial detention; the declarations of
several individuals who have studied pretrial release; and the dec-
laration of the Vice President of the National Association of Pretrial
Services Agencies.
After reviewing the evidence and hearing the witnesses’ tes-
timony, the district court made several factual findings about how
the post-March 25, 2018, Standing Bail Order system works. As I
have mentioned, Hester was released before that system went into
effect and did not allege that he was ever subjected to it. But the
district court enjoined the County’s practices under that system,
and the Majority Opinion reviews the Standing Bail Order facially.
So I describe the district court’s relevant factual findings.
First, I explain how the system works for the nonindigent
defendants. Those arrested without a warrant (which includes
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18-13894 ROSENBAUM, J., Dissenting 23
most people arrested in Cullman County) receive a bail set by the
Sheriff, according to a bail schedule that specifies the amount for
each crime. Using the same schedule, a magistrate (who generally
is neither a member of the Alabama Bar nor a lawyer 3) presets the
bail for those arrested with a warrant. So bail is based on only the
charge and the charge alone. Neither the Sheriff nor the magistrate
considers the particular facts underlying the charge, the individ-
ual’s criminal history, past failures to appear, employment status,
financial resources, ties to the community, age, health, or any other
information. Indeed, Sheriff Gentry conceded that, under the
Standing Bail Order, “there’s no leeway in . . . what your bond is
going to be.” The money bail required is also always secured,
meaning it must be paid through a surety or a property bond. 4
Theoretically, if a law-enforcement officer believes a person
poses “an unreasonable risk of flight or danger to the public,” then
the officer can submit a bail request form to a magistrate requesting
that bail be denied until the person is brought before a judge. But
in reality, if this happens at all, it happens virtually never. And that
3In Cullman County, magistrates are court specialists and perform important
functions, but they are not lawyers.
4 As I have noted, people charged with murder or manslaughter must wait to
see a judge at their first appearance before they know if they will receive a
bond. Hester’s challenge to the Standing Bail Order does not include a chal-
lenge to this aspect of the system, so I do not discuss it further. And for that
same reason, all references to bail in this dissent’s legal analysis deal with cases
that do not fall into these limited categories.
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24 ROSENBAUM, J., Dissenting 18-13894
was also the case under the pre-Standing Bail Order system. So
while Sheriff Gentry characterized these bail-denial requests as
“very few and far between,” Judge Turner—one of only two dis-
trict judges in Cullman County—admitted he had never seen one
in conjunction with a warrantless arrest. In other words, before
those who can pay the scheduled bail are released, no one makes a
danger assessment of any type or an individualized failure-to-ap-
pear assessment.
When a person can post bond, his stay in the Cullman
County jail generally lasts between forty-five and ninety minutes
from when he is booked until when he is released.
Now, I turn to the different Standing Bail Order practices
and procedures that govern the experience of a person who cannot
post bail. Unlike a person who can pay the scheduled bail and who
generally spends, at most, ninety minutes in the Cullman County
jail, an indigent person who cannot post bond may wait in jail up
to 72 hours before he is brought before a judge for an initial appear-
ance and bond reassessment. That is so because Cullman County
holds initial appearances only three times a week—on Monday,
Wednesday, and Friday afternoons at about 1:30 or 2:00 p.m. So,
for example, a defendant arrested on a Friday after the cutoff for
Friday initial appearances will not have his bond hearing until the
following Monday afternoon. And even when the indigent defend-
ant has his initial appearance—and unlike those who are not indi-
gent and can simply pay the pre-assigned bail—the indigent defend-
ant is not guaranteed to be released.
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18-13894 ROSENBAUM, J., Dissenting 25
At the indigent defendant’s initial appearance—and again,
unlike for a person who can pay the scheduled bail and does not
have a bond hearing—an indigent person like Hester must undergo
a danger assessment and an individualized failure-to-appear assess-
ment before his bond is set. And he might never be able to satisfy
the resulting conditions the presiding judge decides to impose. But
an arrestee on the same charge as Hester, for example, who can
pay the $1,000 scheduled bail will undergo neither a danger assess-
ment of any type nor an individualized failure-to-appear assess-
ment and will instead be released from jail automatically within
ninety minutes of his arrest.
To show the difference even more starkly, while Hester had
to sit in jail because he could not afford his bond for misdemeanor
possession of drug paraphernalia, Judge Turner confirmed, if a dep-
uty sheriff were to arrest an individual on a charge of first-degree
rape, the Sheriff’s Office would release the individual—with no
danger inquiry or individualized failure-to-appear assessment—as
soon as he could post a $20,000 property or surety bond.
Returning to how the judge sets the bond for the indigent
defendant at the initial appearance, the judge considers the defend-
ant’s written answers to questionnaires that seek information
about the defendant’s life, family, health, criminal history, employ-
ment, and personal finances. These questionnaires are provided
to the defendant before his hearing.
But notably, Judge Turner testified and the district court
found that many defendants cannot effectively complete the forms.
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26 ROSENBAUM, J., Dissenting 18-13894
As Judge Turner explained, most people arrested in Cullman
County do not have a high-school education, many have learning
disabilities, and “[a] lot of them” struggle with reading comprehen-
sion. So their efforts to respond to the questionnaires are not al-
ways helpful.
Compounding these problems, indigent defendants have no
counsel present at the bond hearing to assist them. While the judge
may appoint counsel during the hearing, the indigent defendant
will be unable to meet with that attorney until about a week later.
Meanwhile, at the initial appearance, the judge determines
whether to adjust the secured bond that was required by the bail
schedule when the defendant was arrested. The Standing Bail Or-
der provides that, in making this determination, the judge “may
elicit testimony about the defendant’s financial condition.” But a
form called “Order on Initial Appearance and Bond Hearing” states
that the judge must “[give] the Defendant the opportunity to make
a statement regarding his/her ability to post the bond currently set
in this matter.”
After considering the indigent defendant’s individualized cir-
cumstances, the judge may release the defendant on his own recog-
nizance or with an unsecured bond, or the judge may again impose
a secured-bond requirement. If the court requires a secured bond,
the Standing Bail Order states that “[t]he Court will make a written
finding [on the Order on Initial Appearance and Bond Hearing and
the Release Order] as to why the posting of a bond is reasonably
necessary to assure the defendant’s presence at trial in such a case.”
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 97 of 142
18-13894 ROSENBAUM, J., Dissenting 27
But neither the Order on Initial Appearance and Bond Hear-
ing nor the Release Order provides space for a written finding. Ra-
ther, the Order on Initial Appearance and Bond Hearing requires a
judge to check boxes next to fifteen listed factors to identify the
factors the judge took into “consideration” in requiring a secured
bond. Fourteen of the factors come from Rule 7.2(a), Ala. R. Crim.
P., and the fifteenth simply says, “Other,” which the judge may
specify in writing. The Release Order requires only that the judge
check a box if the court imposes a secured bond.
Although the Standing Bail Order provides that the court
may “require the posting of a secured appearance bond if that is the
least onerous condition that will reasonably assure the defendant’s
appearance or that will eliminate or minimize the risk of harm to
others or the public at large,” the district court found it is not un-
common for a judge to set a bond at the uncounseled initial appear-
ance in an amount she knows the defendant cannot afford. Indeed,
Judge Turner testified that under the Standing Bail Order system,
he sets secured bonds for indigent defendants at their initial appear-
ances about half the time. In setting bonds for indigent defendants,
Judge Turner does not inquire “much past the defendant’s income
or indigency status [because he does not] want to get involved with
. . . the facts on their case until [he has] appointed them counsel.”
If the defendant cannot pay the bond the judge imposes at
the initial appearance, typically, up to a month will pass before a
judge hears the indigent defendant’s counseled motion for bond
reduction. That is so because it takes some time for the appointed
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28 ROSENBAUM, J., Dissenting 18-13894
attorney to file the motion for bond reduction, and then the court
hears those motions only every other Monday. Even if the County
does not oppose an indigent defendant’s motion for bond reduc-
tion, it takes at least 15 days and up to 30 for the district judge to
grant the motion. While the indigent defendant’s motion remains
pending, of course, he sits in jail.
If no initial appearance occurs within 72 hours of the indi-
gent defendant’s arrest, though, the Sheriff must release the de-
fendant on an unsecured bond. But that rule does not guarantee
an indigent defendant will have an initial appearance and bond re-
assessment before a judge within 72 hours. Rather, a magistrate
may conduct the hearing.
Cullman County asserted that three compelling interests
justify the need for secured bonds: (1) providing pretrial release as
quickly as possible for all who can afford it; (2) ensuring that de-
fendants appear for court proceedings, and (3) protecting the com-
munity from dangerous defendants.
Working backwards, on the County’s interest in protecting
the public, the district court concluded that data and empirical evi-
dence in the record revealed no significant difference in public-
safety rates between defendants released on secured bonds and
those given unsecured bonds. Based on these facts, the district
court found that the County’s stated interest in using secured bail
to promote public safety was illusory.
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18-13894 ROSENBAUM, J., Dissenting 29
As for the County’s interest in ensuring the defendant’s ap-
pearance for court proceedings, given the unrebutted evidence, the
court determined that money bail is not more effective than non-
monetary conditions of release in reducing the risk of failures to
appear. As the district court noted, Dr. Demuth explained that sev-
eral recent empirical studies comparing the effectiveness of pretrial
release conditions found “no difference in the effectiveness of se-
cured and unsecured bonds.” For example, the average court-ap-
pearance rate for defendants in Jefferson County, Colorado, which
was studied, did not differ significantly for defendants whose bond
was set by judges who imposed more secured bonds and those who
set more unsecured bonds. According to Dr. Michael Jones, one of
the study’s authors, this finding was consistent with the fact that
“both bond types carry the potential for the defendant to lose
money for failing to appear.”
Besides this, the district court noted that Dr. Jones relied on
research studies that show that court date reminders, “which can
be delivered through in-person meetings, letters, postcards, live
callers, robocalls, text messages, and/or email,” are the “single
most effective pretrial risk management intervention for reducing
failures to appear,” improving court appearances by about 30% to
50%. In fact, the district court stated, the public defender in Rich-
mond, California, was able to reduce failure-to-appear rates among
its clients from 20% to less than 4% after implementing text-mes-
sage court-date reminders. And the failure-to-appear rate of low-
income defendants in Luzerne County, Pennsylvania, decreased
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30 ROSENBAUM, J., Dissenting 18-13894
from 15% to less than 6% when that county started using text-mes-
sage court-date reminders.
The court also relied on the declaration of Insha Rahman, a
senior planner at a nonprofit criminal-justice organization that de-
velops pretrial services. She stated that, in New York City, 95% of
nearly 2,300 criminal defendants whose bail was paid by charitable
organizations—meaning they had no “skin in the game”—made all
their court appearances.
Besides these evidentiary sources, the district court pointed
to statements from Judge Morrison’s declaration that supported
the same conclusion. Judge Morrison attested that, in 2017 (the last
full year for which statistics were available when he prepared his
declaration), 94% of arrestees in Washington, D.C., were released,
and 88% of released defendants “made all scheduled appearances
during the pretrial period.” And, the court observed, Judge Turner
effectively agreed that unsecured bail can be effective when he
opined that a defendant would have just as much “skin in the
game,” whether he had unsecured or a secured bond. Another
study the court cited, which analyzed data on 153,407 defendants,
revealed that when secured bonds result in the extension of a de-
fendant’s pretrial detention, secured bonds make it less likely that
a defendant appears in court.
In response to these many studies and related testimony,
Cullman County offered no empirical evidence or research studies
to rebut Hester’s evidence. Based on the record, then, the district
court found that “the plaintiffs’ evidence demonstrates that
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 101 of 142
18-13894 ROSENBAUM, J., Dissenting 31
Cullman County likely would not see an increase in failures to ap-
pear with unsecured bonds.”
As for the County’s interest in securing pretrial release as
quickly as possible for all who can afford it, the district court con-
cluded that unsecured bonds for those who cannot afford secured
bonds would continue to allow all who can afford secured bonds
to be released immediately. But they would also allow those who
cannot afford secured bonds to obtain immediate release, while
still protecting against failure to appear.
Ultimately, the court concluded that “[n]one of the interests
that [the County] identified relating to Cullman[] County’s secured
bail procedures finds support in the current record.” Yet although
the district court found, as a matter of fact, that Cullman County’s
implementation of its Standing Bail Order does not further the
County’s stated interests for the policy, under that Order, the indi-
gent are still de facto pretrial detained, while the nonindigent are
not.
III. Unnecessary pretrial detention can significantly harm the
defendant, his family, and the community
Before I get into why Cullman County’s bail system violates
the Fourteenth Amendment, I think it’s worth explaining the rea-
sons, including the less obvious ones, why pretrial release is im-
portant. Not that pretrial detention is never appropriate. It is—in
cases that involve true and serious risks of flight or real threats to
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 102 of 142
32 ROSENBAUM, J., Dissenting 18-13894
the community (or both) that cannot be mitigated through reason-
able non-detaining measures.
But many state-court defendants—including several who
are arrested on non-violent misdemeanor offenses—do not present
those types of risks. Rather, as the trial court found, based on the
evidence, any risks most state-court defendants raise may be suita-
bly addressed by measures short of pretrial detention. And there
are important reasons why defendants whose risks can otherwise
be addressed should be released unless they are convicted and sen-
tenced to jail or prison time.
More than three decades ago, the Supreme Court declared
that “[i]n our society liberty is the norm, and detention prior to trial
or without trial is the carefully limited exception.” United States v.
Salerno, 481 U.S. 739, 755 (1987). The fundamental right to pretrial
liberty began with the first days of our nation. See Stack v. Boyle,
342 U.S. 1, 4 (1951) (explaining that there is a “traditional right to
freedom before conviction” going back to the Judiciary Act of
1789). That right is animated by the “bedrock axiomatic and ele-
mentary principle whose enforcement lies at the foundation of the
administration of our criminal law”—the presumption of inno-
cence. In re Winship, 397 U.S. 358, 363 (1970) (quotation marks
omitted).
Put simply, before an arrestee is convicted (if he ever is), he
is presumed innocent. And we don’t punish innocent people with
jail time. Yet we have acknowledged the “punitive and heavily bur-
densome nature” of pretrial detention. Rainwater, 572 F.2d at
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 103 of 142
18-13894 ROSENBAUM, J., Dissenting 33
1056. Because pretrial detention involves the “deprivation of lib-
erty of one who is accused but not convicted of crime,” we have
recognized that it “present[s] a question having broader effects and
constitutional implications than would appear from a rule stated
solely for the protection of indigents.” Id. Among other things,
pretrial release “prevent[s] the infliction of punishment prior to
conviction.” Id. at 1056–57.
People who are jailed—even for just a day or two—can lose
their jobs, homes, and vehicles; and their bonds with family mem-
bers, who may be relying on them for support or care, can often be
deeply affected. See Gerstein v. Pugh, 420 U.S. 103, 114 (1975)
(“Pretrial confinement may imperil the suspect’s job, interrupt his
source of income, and impair his family relationships.”); Samuel R.
Wiseman, Pretrial Detention and the Right to Be Monitored, 123
Yale L.J. 1334, 1356–57 (2014) (“Many detainees lose their jobs even
if jailed for a short time, and this deprivation can continue after the
detainee’s release. Without income, the defendant and his family
also may fall behind on payments and lose housing, transportation,
and other basic necessities.”) (footnotes omitted); Cherise Fanno
Burdeen, The Dangerous Domino Effect of Not Making Bail, The
Atlantic (Apr. 12, 2016), https://www.theatlantic.com/poli-
tics/archive/2016/04/the-dangerous-domino-effect-of-not-mak-
ing-bail/477906/ (“Even short-term incarceration can have dire
consequences. People can lose their jobs, housing, even custody of
their kids if they’re in jail.”).
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 104 of 142
34 ROSENBAUM, J., Dissenting 18-13894
Jail can also have lasting and irreversible consequences on a
person’s psychological and physical health. Some who have been
detained when they couldn’t pay bail have committed suicide or
have otherwise died in custody. In a tragic example, a teenager in
Michigan accused of stealing a bottle of wine committed suicide
after spending three days in jail because he could not afford bail.
See Ted Roelofs, The Price of Michigan’s Cash Bail System, The
Bridge (Nov. 15, 2016), https://www.bridgemi.com/michigan-
government/price-michigans-cash-bail-system. In another case,
Sandra Bland was arrested after failing to signal while changing
lanes. Three days later she was found dead from an apparent sui-
cide in her jail cell. Abby Ohlheiser & Sarah Larimer, What We
Know About Sandra Bland, Who Died This Week in a Texas Jail,
Washington Post (July 17, 2015), https://www.washing-
tonpost.com/news/morning-mix/wp/2015/07/17/what-we-
know-about-sandra-bland-who-died-this-week-in-a-texas-jail/.
While fortunately not common, sadly, these cases are not
flukes, either. Before the pandemic, roughly 1,000 people died in
local jails each year—almost a third by suicide. Martin Kaste, The
‘Shock of Confinement’: The Grim Reality of Suicide in Jail, NPR
(July 27, 2015),
https://www.npr.org/2015/07/27/426742309/the-shock-of-con-
finement-the-grim-reality-of-suicide-in-jail; E. Ann Carson & Mary
P. Cowhig, U.S. Dep’t of Justice, Bureau of Just. Stat., Mortality in
Local Jails, 2000-2016 (February 2020), https://bjs.ojp.gov/con-
tent/pub/pdf/mlj0016st.pdf. Suicide rates in jails are almost five
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 105 of 142
18-13894 ROSENBAUM, J., Dissenting 35
times higher than they are in prison and three times worse than
they are in the general public.
And the COVID-19 pandemic has added problems. Prisons
and jails have been hotbeds for the spread of COVID-19, where in-
carcerated people “have been infected at rates several times higher
than those of their surrounding communities.” Eddie Burkhalter
et al., Incarcerated and Infected: How the Virus Tore Through the
U.S. Prison System, N.Y. Times (Apr. 10, 2021), https://www.ny-
times.com/interactive/2021/04/10/us/covid-prison-out-
break.html.
In fact, the pandemic further exacerbated conditions in Ala-
bama jails because the State halted the transfer of inmates from
county jails to state prisons. Ashley Remkus, Alabama Inmates
Sleep on Floors as Jails Overcrowded: ‘It’s Inhumane’, AL.com
(Dec. 18, 2020), https://www.al.com/news/2020/12/alabama-in-
mates-sleep-on-floors-as-jails-overcrowd-its-humane.html. As a re-
sult, Alabama jails have been overcrowded, leading to shortages in
basic supplies and forcing inmates to sleep on mats for weeks at a
time. Id.Alabama continued for months to see surges in COVID-19
cases, mainly because of new variants and low vaccination rates.
Ramsey Archibald, New COVID Surge Begins in Alabama, Hospi-
talizations Double in July, Positivity Rate Climbing, AL.com (July
20, 2021), https://www.al.com/news/2021/07/new-covid-surge-
begins-in-alabama-hospitalizations-double-in-july-positivity-rate-
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 106 of 142
36 ROSENBAUM, J., Dissenting 18-13894
climbing.html. Three days of pretrial incarceration during the cur-
rent pandemic could have life-altering consequences.
That’s not all. Individuals detained pretrial are also more
likely to be convicted or plead guilty—even if they are not guilty.
The district court found, based on empirical evidence and studies,
that pretrial detention boosts the likelihood that an arrestee is con-
victed. For example, the court relied on a Harris County, Texas,
study that concluded that “defendants who are detained on a mis-
demeanor charge are much more likely than similarly situated [de-
fendants who are released pretrial] to plead guilty and serve jail
time. Compared to similarly situated [released defendants], de-
tained defendants are 25% more likely to be convicted . . . .” And
it pointed to a study from Pittsburgh that found that “pretrial de-
tention leads to a 13% increase in the likelihood of being convicted,
an effect largely explained by an increase in guilty pleas among de-
fendants who otherwise would have been acquitted or had their
charges dropped.” The district court also relied on “data from New
York City [that] shows that 92% of people detained pretrial pleaded
guilty, while only 24% and 32% of the cases in which the defend-
ant’s bail was paid by the Bronx Freedom and Brooklyn Commu-
nity Bail Fund, respectively, resulted in a criminal conviction.”
Those findings are unsurprising given that pretrial release
“permits the unhampered preparation of a defense” and gives ar-
restees better bargaining positions for plea deals. Stack, 342 U.S. at
4. Conversely, those who are detained often feel added pressure to
plead guilty: each additional hour in jail ratchets up the pressure
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 107 of 142
18-13894 ROSENBAUM, J., Dissenting 37
to cut a deal to get out as quickly as possible. Wiseman, Pretrial
Detention, at 1356 (“In some cases, the periods that defendants
spend in jail awaiting trial is comparable to, or even greater than,
their potential sentences, thus substantially incentivizing quick
plea deals regardless of guilt or innocence.”) (footnotes omitted).
The pressure to plead out is even greater for those (like Hes-
ter) accused of misdemeanors. For them, “the worst punishment
may come before conviction” because misdemeanor defendants
are routinely given “‘time served’ or probation,” so misdemeanor
arrestees are incentivized to plead guilty and get out of jail as soon
as possible. Paul Heaton et al., The Downstream Consequences of
Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 715 (2017)
(footnotes omitted). 5 The research backs this up: A study on mis-
demeanor defendants in Harris County, Texas, found that defend-
ants who were detained pretrial were 25% more likely to plead
guilty than non-detained defendants. Id. at 717, 747.
Plus, the district court here concluded that “pretrial deten-
tion is associated with harsher sentences upon conviction.” It cited
the Harris County, Texas, study as finding that “detained individu-
als were 43% more likely than similarly situated released individu-
als to be sentenced to a term of incarceration.” And the court sim-
ilarly pointed to the conclusion of a study of Philadelphia’s pretrial
5 Hester submitted this article as empirical evidence during the preliminary
injunction hearing. See ECF No. 129-19.
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 108 of 142
38 ROSENBAUM, J., Dissenting 18-13894
procedures that “defendants detained pretrial generally end up ow-
ing $129 more in non-bail court fees and are sentenced to an addi-
tional 124 days [in jail] on average upon conviction.”
These costs do not rest solely on the arrestee’s shoulders;
society also pays for them. In a literal sense, taxpayers pay expo-
nentially more to detain individuals pretrial than it would if the de-
tainees were released pretrial. For example, studies have found
that detaining an arrestee costs $80 to $150 per day, “while moni-
toring a defendant released pretrial costs between $5 and $15 a
day.” Nicole Hong and Shibani Mahtani, Cash Bail, a Cornerstone
of the Criminal-Justice System, is Under Threat, Wall Street Jour-
nal (May 22, 2017). So we should make sure that those we detain
really do need to be detained.
But it is not just our pocketbooks that unnecessary pretrial
detention hurts; the district court cited a study showing those who
are detained pretrial are more likely to commit a crime in the fu-
ture. And other studies reach the same conclusion. See, e.g., Hea-
ton et al., Downstream Consequences, at 718; see also ECF No.
129-12 at 5 (a study of detainees in Kentucky found that individuals
who were detained for 2 or 3 days were 1.39 times more likely to
engage in new criminal activity than those who were released
within a day).
In short, the district court found that unnecessary pretrial
detention has both deep and rippling consequences—for the de-
fendant, his family, and the community.
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 109 of 142
18-13894 ROSENBAUM, J., Dissenting 39
IV. The district court correctly determined that Cullman
County’s actual bail practices violate the Fourteenth
Amendment
Hester argues that Cullman County subjects indigent state-
court defendants to effective pretrial detention when it releases
similarly situated nonindigent defendants. In other words, Hester
contends Cullman County detains indigent defendants just because
they are indigent. And that, he asserts, violates the Equal Protec-
tion and Due Process Clauses of the Fourteenth Amendment. I
agree.
The Supreme Court has long recognized that “there can be
no equal justice where the kind of trial a man gets depends on the
amount of money he has.” Bearden v. Georgia, 461 U.S. 660, 664
(1983) (quoting Griffin v. Illinois, 351 U.S. 12, 19 (1956) (plurality
opinion)). And our predecessor Court has acknowledged “that im-
prisonment solely because of indigent status is invidious discrimi-
nation and not constitutionally permissible.” Rainwater, 572 F.2d
at 1056.
Due-process and equal-protection concerns animate this
principle of “equal justice.” See Bearden, 461 U.S. at 664–65. As
the Court has explained, we consider “whether the State has invid-
iously denied one class of defendants a substantial benefit available
to another class of defendants under the Equal Protection Clause.”
Id. at 665. And we also evaluate “the fairness of relations between
the criminal defendant and the State under the Due Process
Clause.” Id.USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 110 of 142
40 ROSENBAUM, J., Dissenting 18-13894
If a defendant is detained just because of his indigent status
and without “a meaningful opportunity to enjoy” pretrial release,
we apply heightened scrutiny in reviewing the scheme. Walker v.
City of Calhoun, 901 F.3d 1245, 1261 (11th Cir. 2018) (quoting San
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973)). In-
deed, our predecessor Court has explained that “[t]he demands of
equal protection of the laws and of due process prohibit depriving
pre-trial detainees of the rights of other citizens to a greater extent
than necessary to assure appearance at trial and security of the jail.”
Rainwater, 572 F.2d at 1057 (citation and quotation marks omit-
ted).
Rainwater’s use of the phrase “to a greater extent than nec-
essary” reflects heightened scrutiny, as rational-basis scrutiny
would uphold a scheme as long as it is “rationally related to a legit-
imate government purpose,” Leib v. Hillsborough Cnty. Pub.
Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009)—no matter
if the scheme deprives pretrial detainees of the rights of other citi-
zens more than necessary to achieve the government’s legitimate
interests. Rainwater’s use of heightened scrutiny follows Supreme
Court precedent in cases involving the state’s use of wealth-based
incarceration. In Bearden, for example, the Court held that a state
can imprison an indigent probationer “[o]nly if the sentencing
court determines that alternatives to imprisonment are not ade-
quate” to meet the state’s interest. 461 U.S. at 672. In other words,
jailing must be the only adequate option—not just a rational one.
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 111 of 142
18-13894 ROSENBAUM, J., Dissenting 41
A. Rainwater requires the conclusion that Cullman
County’s bail system violates the Fourteenth Amend-
ment
In ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018),
abrogated by Daves v. Dallas Cnty., 22 F.4th 522 (5th Cir. 2022) (en
banc), the Fifth Circuit applied these principles—and Rainwater in
particular—in evaluating a Fourteenth Amendment challenge to
the bail system of Harris County, Texas.
Before addressing ODonnell’s analysis of the Fourteenth
Amendment issues at stake here, I pause to explain the status of
ODonnell. ODonnell involved a challenge to Harris County,
Texas’s actual bail practices in connection with a bail schedule. As
I explain below, the Fifth Circuit concluded that Harris County’s
bail practices violated the Fourteenth Amendment. Separately, in
Daves v. Dallas County, 22 F.4th 522, another group of plaintiffs
challenged Dallas County’s bail practices, which were allegedly
similar to the bail practices of Harris County in ODonnell. The
district court and a panel of the Fifth Circuit therefore applied
ODonnell’s substantive analysis to whether Dallas County’s bail
practices violated the Fourteenth Amendment and found that they
did. See id. at 530–31.
The Fifth Circuit then took Daves en banc solely on issues
of justiciability. See id. at 528. And while the Fifth Circuit vacated
the district court and panel decisions in Daves in their entirety be-
cause it concluded, in part, that the plaintiffs lacked standing to sue
some defendants in Daves (similar defendants are not enjoined in
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 112 of 142
42 ROSENBAUM, J., Dissenting 18-13894
Hester’s case) and it directed the district court to address absten-
tion, it was careful to note that its decision did “not reach the mer-
its.” Id.As the panel decision in Daves was vacated because the Fifth
Circuit concluded it did not suitably address justiciability concerns,
and it, in turn, was based on ODonnell and its similar treatment of
justiciability concerns, ODonnell is no longer good law in the Fifth
Circuit. But as I’ve mentioned, the Fifth Circuit’s en banc decision
in Daves did not reach or criticize ODonnell’s merits analysis in
any way. And the four Fifth Circuit judges who dissented from the
Daves justiciability-based en banc decision and who did comment
on the ODonnell merits analysis reaffirmed it. See id. at 551–52
(Haynes, J., dissenting); cf. also id. at 570 (“The bail system at issue
in this case blatantly violates arrestees’ constitutional rights.”).
So while ODonnell is no longer good law, its Fourteenth
Amendment analysis remains instructive. And that is especially so
because that analysis is based on our mutually binding precedent
in the form of Rainwater, since like we are, the Fifth Circuit is
bound by Rainwater. 6 I therefore review ODonnell.
6 Rainwater is a Fifth Circuit precedent from 1978. Because it is Fifth Circuit
precedent, it binds the Fifth Circuit. It also binds us because the Fifth Circuit
issued it before October 1, 1981, and we have adopted as precedential all such
Fifth Circuit opinions. See Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
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18-13894 ROSENBAUM, J., Dissenting 43
The ODonnell district court found that, under Harris
County’s bail system as it was implemented, all misdemeanor ar-
restees had hearings where bail amounts were set. See ODonnell,
892 F.3d at 153–54. But these hearings, in practice, “did not achieve
any individualized assessment in setting bail.” Id. at 153. At the
hearings, bail amounts were set in accordance with a bail schedule
and on a secured basis most of the time, and hearing officers knew
that, by imposing a secured bail on indigent arrestees, they were
ensuring that those arrestees would remain detained. Id. at 154.
Yet (as here) the evidence before the court reflected that “release
on secured financial conditions does not assure better rates of ap-
pearance or of law-abiding conduct before trial compared to re-
lease on unsecured bonds or nonfinancial conditions of supervi-
sion.” Id. In sum, the district court concluded that Harris County’s
bail “custom and practice resulted in detainment solely due to a
person’s indigency because the financial conditions for release are
based on predetermined amounts beyond a person’s ability to pay
and without any ‘meaningful consideration of other possible alter-
natives.’” Id. at 161.
In conducting its analysis on appeal, on the due-process side
of the equation, the Fifth Circuit observed that the Texas Constitu-
tion provided that “[a]ll prisoners shall be bailable by sufficient
sureties.” Id. at 158 (quoting Tex. Const. art. 1, § 11). Based on
that, the Fifth Circuit concluded that “Texas state law creates a
right to bail that appropriately weighs the detainees’ interest in pre-
trial release and the court’s interest in securing the detainee’s
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44 ROSENBAUM, J., Dissenting 18-13894
attendance.” Id. That right, in turn, means that judicial officers
cannot “impose a secured bail solely for the purpose of detaining
the accused.” Id. Rather, decisions on conditions of release must
“reflect a careful weighing of the individualized factors” Texas law
set forth. Id. As the Fifth Circuit explained, this right was a state-
created liberty interest. See id.
After hashing this out, the Fifth Circuit turned its attention
to evaluating whether Harris County’s bail practices adequately
protected the arrestees’ right to such a bail. To conduct this analy-
sis, the Fifth Circuit employed the Mathews v. Eldridge, 424 U.S.
319, 335 (1976), three-part balancing test that considers “the private
interest . . . affected by the official action; the risk of an erroneous
deprivation of such interest through the procedure used, and the
probable value, if any, of additional or substitute procedural safe-
guards; and the Government’s interest, including the function in-
volved and the fiscal and administrative burdens that new proce-
dures would impose.” ODonnell, 892 F.3d at 158–59 (citation and
quotation marks omitted).
After weighing these interests, the Fifth Circuit determined
that Harris County’s bail practices were “inadequate” “when ap-
plied to . . . the liberty interest at stake.” Id. at 159. In particular,
the court noted that the district court’s factual findings showed that
“secured bail orders [we]re imposed almost automatically on indi-
gent arrestees,” even though officials knew the indigent could not
afford such bail. Id. Based on this fact, the court concluded, Harris
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18-13894 ROSENBAUM, J., Dissenting 45
County’s bail practices did “not sufficiently protect detainees from
[officials] imposing bail as an ‘instrument of oppression.’” Id.
That said, the court declined to require factfinders to issue a
written statement of their reasons for the selected pretrial release
conditions. Id. at 160. As the court explained, the arrestees’ liberty
interest—“the right to pretrial liberty of those accused (that is, pre-
sumed innocent) of misdemeanor crimes upon the court’s receipt
of reasonable assurance of their return”—was “particularly im-
portant.” Id. at 159. But so was “the government’s interest in effi-
ciency.” Id. And the court was concerned that requiring Harris
County to produce 50,000 written opinions per year would impose
too great a burden. Id. at 160. Rather, it reasoned, requiring offi-
cials “to specifically enunciate their individualized, case-specific
reasons” for imposing release conditions they knew indigent indi-
viduals could not meet was “a sufficient remedy.” Id.
The Fifth Circuit also determined that “the federal due pro-
cess right” as recognized in County of Riverside v. McLaughlin, 500
U.S. 44, 56–58 (1991), “entitles detainees to a [bond] hearing within
48 hours.” ODonnell, 892 F.3d at 160.
Then the Fifth Circuit considered the equal-protection part
of the challenge to Harris County’s bail practices. It determined
that those practices warranted heightened-scrutiny review under
Rodriguez. Id. at 162; see also Daves, 22 F.4th at 552 (Haynes, J.,
dissenting) (“We determined that the district court did not err in
applying intermediate scrutiny.”). That is, under Harris County’s
bail practices, indigent arrestees could not pay secured bail, “and,
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46 ROSENBAUM, J., Dissenting 18-13894
as a result, sustain[ed] an absolute deprivation of their most basic
liberty interests—freedom from incarceration.” ODonnell, 892
F.3d at 162. And, the court continued, indigent arrestees were “in-
carcerated where similarly situated wealthy arrestees [we]re not,
solely because the indigent cannot afford to pay a secured bond.”
Id. And, invoking Rainwater, 572 F.2d at 1057, the ODonnell
Court noted that the district court’s factual findings showing that
Harris County’s bail practices resulted in wealth-based detainment
“without any ‘meaningful consideration of other possible alterna-
tives’” meant that Harris County’s bail practices were unconstitu-
tional. ODonnell, 892 F.3d at 161 (quoting Rainwater, 572 F.2d at
1057).
The Fifth Circuit concluded that Harris County’s bail prac-
tices flunked heightened scrutiny. Id. at 162. It acknowledged that
the County enjoyed a “compelling interest in the assurance of a
misdemeanor detainee’s future appearance and lawful behavior.”
Id. But the court held that Harris County’s bail practices were “not
narrowly tailored to meet that interest.” Id. In support of this con-
clusion, the Fifth Circuit explained that Harris County did not
show a “link between financial conditions of release and appear-
ance at trial or law-abiding behavior before trial.” Id. Indeed, the
County did not present data showing that secured bail was more
effective than unsecured bail in ensuring an arrestee’s future ap-
pearance. Id. But meanwhile, the plaintiffs submitted data sug-
gesting that using secured bail might increase the likelihood of un-
lawful behavior. Id.
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18-13894 ROSENBAUM, J., Dissenting 47
At the end of the day, the Fifth Circuit explained, under Har-
ris County’s bail practices, “two misdemeanor arrestees who are
identical in every way—same charge, same criminal backgrounds,
same circumstances, etc.—except that one is wealthy and one is in-
digent,” “would almost certainly receive identical secured bail
amounts.” Id. at 163. The wealthy arrestee could post bond, while
the indigent one would not. Id. And as a result, “the wealthy ar-
restee [would be] less likely to plead guilty, more likely to receive
a shorter sentence or be acquitted, and less likely to bear the social
costs of incarceration.” Id. Meanwhile, the indigent arrestee
would not enjoy those same advantages. Id. The Fifth Circuit con-
cluded that, under Rainwater and Supreme Court precedent, this
violated the Equal Protection Clause of the Fourteenth Amend-
ment. Id.
Hester’s case presents the same problems as ODonnell. I
begin with the due-process analysis.
First, the liberty interest: there is no meaningful distinction
between Texas’s constitutional promise that “[a]ll prisoners shall
be bailable by sufficient sureties,” Tex. Const. art. 1, § 11, and Ala-
bama’s constitutional guarantee that “all persons shall, before con-
viction, be bailable by sufficient sureties, except for capital offenses,
when the proof is evident or the presumption great . . . .” Ala.
Const. art. 1, § 16. And Alabama courts “have consistently con-
strued” the Alabama Constitution and § 15-13-2, Code of Alabama
1975, “as ensuring to an accused an absolute right to bail.” Shabazz
v. State, 440 So. 2d 1200, 1201 (Ala. Crim. App. 1983) (citing
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48 ROSENBAUM, J., Dissenting 18-13894
Brakefield v. State, 113 So. 2d 669 (Ala. 1959); Holman v. Williams,
53 So. 2d 751 (Ala. 1951); Sprinkle v. State, 368 So. 2d 554 (Ala.
Crim. App. 1978)). So those arrested in Alabama must enjoy the
same liberty interest under the Alabama Constitution that Texas’s
Constitution created in “a right to bail that appropriately weighs
the detainees’ interest in pretrial release and the court’s interest in
securing the detainee’s attendance,” ODonnell, 892 F.3d at 158.
As for the Mathews balancing test, as in the factual findings
in ODonnell—where the district court determined that “secured
bail orders [we]re imposed almost automatically on indigent ar-
restees,” id. at 159, even though officials knew the indigent could
not afford such bail—the district court here found that “Cullman
County mechanically applies a secured money bail schedule to de-
tain the poor and release the wealthy,” and “[i]t is not uncommon
for a judge to set a bond in an amount he knows the defendant
cannot afford.” Just as these circumstances in ODonnell led the
Fifth Circuit to conclude that Harris County’s actual bail practices
(rather than its written bail framework) did “not sufficiently protect
detainees from [officials] imposing bail as an ‘instrument of oppres-
sion,’”id., the district court here found that “Cullman County’s ac-
tual procedures are significantly less individualized and protective
than due process requires.”
In further support of this conclusion, the district court here
noted other deficiencies in Cullman County’s practices, including
that Cullman County “do[es] not provide constitutionally ade-
quate notice to indigent criminal defendants before an initial
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18-13894 ROSENBAUM, J., Dissenting 49
appearance”; that judges “do[] not have to give a criminal defend-
ant an opportunity to be heard or present evidence”; that “neither
the Cullman County Sheriff nor a Cullman County judge must sat-
isfy an evidentiary standard before entering an unaffordable se-
cured bond that serves as a de facto detention order”; and that
judges “do not actually make ‘findings’” when they require a bond
to be posted.
As for notice—which relates directly to the opportunity to
be heard—the district court explained that the only evidence of no-
tice in the record was the notice statement in the Release Question-
naire. As for that statement—“FOR THE PURPOSE OF
DETERMINING CONDITIONS OF PRE-TRIAL RELEASE IN
THIS CASE, THE COURT MAY TAKE INTO ACCOUNT THE
FOLLOWING,”—the district court found it “does not communi-
cate the most crucial piece of information, namely, that a judge
may enter a de facto detention order by setting unaffordable se-
cured money bail even after considering the information provided
by the defendant.” The district court also noted that Judge Turner
testified that he does not inform criminal defendants of the four-
teen factors he uses to set secured bail, so a defendant may not
know what information may be important to share at the hearing.
Not only that, but the form is only offered to arrestees, and some
don’t take it. Plus, the district court found that many arrestees can-
not read or write, rendering the information on the Questionnaire
“tantamount to no notice at all.”
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50 ROSENBAUM, J., Dissenting 18-13894
Even Judge Turner admitted that he had “no idea” whether
arrestees were ever advised of the fourteen factors that are sup-
posed to be considered to determine arrestees’ release conditions.
But the Supreme Court has explained that “[t]he opportunity to be
heard must be tailored to the capacities and circumstances of those
who are to be heard.” Goldberg v. Kelly, 397 U.S. 254, 268 (1970).
And “at a minimum, the Due Process Clause requires notice and
the opportunity to be heard incident to the deprivation of . . . lib-
erty . . . at the hands of the government.” Grayden v. Rhodes, 345
F.3d 1225, 1232 (11th Cir. 2003).
As for the lack of an opportunity to be heard, the district
court found that Cullman County “impermissibly leave[s] a crimi-
nal defendant’s opportunity to be heard, a ‘fundamental require-
ment of due process,’ up to the judge’s discretion.” (quoting
Mathews, 424 U.S. at 333). And the district court also observed that
the Standing Bail Order likewise does not require the judge to give
the defendant the chance to present evidence.
Turning to the lack of an evidentiary standard, the district
court noted that the Standing Bail Order did not identify any stand-
ard of proof by which the factfinder must find the defendant to be
a failure-to-appear or danger risk.
And on the lack of factual findings, the district court found
that “Cullman County judges do not actually make ‘findings.’” Ra-
ther, they “merely check[] a box for any of fourteen factors [they]
‘considered.’” So, for example, a judge might simply check the box
next to “age, background and family ties, relationships and
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18-13894 ROSENBAUM, J., Dissenting 51
circumstances of the defendant” without explaining what he
learned or how it influenced his decision. Comparing that to the
ODonnell hearing officers’ insufficient “jotting [of] abbreviated fac-
tors such as ‘safety’ or ‘criminal history,’” the district judge found
Cullman County’s practice to be “just as inadequate.”
The problem with this practice, the district judge explained,
arises most significantly when “an indigent defendant finally ob-
tains the assistance of appointed counsel [to move for reconsidera-
tion of a bond], but the record affords appointed counsel no infor-
mation regarding the rationale for her client’s bond, making the
task of identifying error and challenging the bail amount unreason-
ably—and potentially insurmountably—difficult.” As the district
court cogently reasoned, “Checking boxes for factors ‘considered’
is tantamount to providing counsel with a copy of Rule 7.2(a) of
the Alabama Rules of Criminal Procedure; checkboxes for factors
‘considered’ provide no meaningful information to indigent de-
fendants or their appointed counsel.” To correct these problems,
the district court required judges to state on the record their rea-
sons for determining that a secured money bond above a defend-
ant’s financial means was necessary to ensure the defendant’s ap-
pearance at trial or protect the community.
Compounding all these deficiencies, the district court found,
was the lack of counsel at the bail hearing. As the court explained,
most of these other deficiencies could be addressed by having
counsel present to ensure the defendant understood the purpose of
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52 ROSENBAUM, J., Dissenting 18-13894
the proceeding and the court provided the other requisite proce-
dural protections.
But the first opportunity for counsel’s involvement in the
bail process for indigent defendants does not occur until the ap-
pointed attorney files a motion for reconsideration of bail and the
court hears the motion—a process that generally takes up to a
month or more. In other words, an indigent defendant can sit in
jail for up to a month or more—a month!—before he receives his
first meaningful opportunity to be heard. To be clear, that’s a
month in jail—without conviction—before the indigent defendant
even has his first meaningful opportunity to be heard on bail.
That’s a long time for someone who is presumed innocent. Yet
“[t]he fundamental requisite of due process of law is the oppor-
tunity to be heard . . . at a meaningful time and in a meaningful
manner.” Goldberg, 397 U.S. at 267 (cleaned up).
In sum, the district court found in Cullman County’s bail
practices the same process deficiencies the Fifth Circuit found in
Harris County’s bail practices in ODonnell. For the same reasons
the Fifth Circuit concluded Harris County’s bail practices violated
the due-process rights of indigent arrestees, then, Cullman
County’s bail practices do.
Moving to the equal-protection analysis, first, just as Harris
County’s bail practices in ODonnell did, Cullman County’s bail
practices trigger heightened scrutiny under Rodriguez. In Cullman
County, as in Harris County, indigent arrestees are absolutely
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18-13894 ROSENBAUM, J., Dissenting 53
deprived of pretrial release just because they are too poor to pay
for it. We know this for at least two reasons.
First, the district court found that the Standing Bail Order
“does nothing to secure public safety.” That finding is not clearly
erroneous. In fact, the Standing Bail Order itself favorably cites
precedent for the proposition that “[t]he bond schedule represents
an assessment of what bail amount would ensure the appearance
of the average defendant facing such a charge and is therefore
aimed at assuring the presence of a defendant.” Standing Bail Or-
der at 2 (cleaned up). Judge Turner similarly characterized the pur-
pose of the secured-bail schedule as being “[t]o secure the return of
the defendant, to meet their court dates.”
And although the Standing Bail Order calls for bail request
forms to seek release conditions other than the scheduled bail for
nonindigent defendants when danger or failure-to-appear risk ex-
ists, the district court also found that the Sheriff just about never
uses them in warrantless arrests. That means Cullman County
makes no inquiry into risk of danger before releasing nonindigent
defendants arrested without a warrant. Meanwhile, Cullman
County requires all indigent defendants to undergo a danger assess-
ment and then imposes bond based on that. So two similarly situ-
ated arrestees with the same arrest offense, the same criminal his-
tory, and the same offense circumstances—but one of whom is in-
digent and the other not—will have two different pretrial-release
statuses. The indigent defendant will remain in jail pretrial on a
secured bond set too high for the defendant to afford, but the
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54 ROSENBAUM, J., Dissenting 18-13894
nonindigent defendant who represents the same safety risk will
stay in jail for no more than about ninety minutes after his arrest.
And since the only difference between these two defendants is that
one is indigent and the other isn’t, it’s clear that any alleged danger
risk is not driving the difference in release status. Rather, as far as
risk of danger is concerned, the indigent defendant is, in fact, incar-
cerated just because of his indigence.
Second, Cullman County asserts that its bail schedule is
meant to address risk of flight, and since the indigent by definition
can’t pay their scheduled bail, their bail hearings and resulting bail
or other release requirements are intended to take the place of the
scheduled bail amounts. But Cullman County’s bail-schedule pro-
cedure makes no individualized inquiry into failure-to-appear risk
that nonindigent arrestees might present. And the County could
identify no empirical evidence showing that the scheduled secured
bail amounts in fact reasonably ensure nonindigent defendants’ ap-
pearances or if they do so, that they do so more than unsecured
bonds would.
In this respect, the district court favorably cited “several re-
cent empirical studies that compare the effectiveness of different
kinds of bonds in assuring appearance in court . . . [and] [found] no
difference in the effectiveness of secured and unsecured bonds.”
(quotation marks omitted) (first bracketed alteration added). As
the district court noted, one study found that “regardless of a crim-
inal defendant’s pretrial risk category, unsecured bonds offer deci-
sion-makers the same likelihood of court appearance as do secured
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18-13894 ROSENBAUM, J., Dissenting 55
bonds.” (internal quotation marks omitted). In fact, the district
court found that “secured money bail actually may undermine the
government’s interest in court appearance because money bail re-
sults in longer periods of pretrial detention for those who cannot
easily afford bail, which, in turn, is associated with higher failure to
appear rates.” And as the district court found, even Judge Turner
“acknowledged that an individual would have just as much ‘skin in
the game’ with an unsecured bond [as with a secured bond].”
No one argues that the district court’s factual finding that
unsecured bond is at least as effective as secured bond in ensuring
a defendant’s presence for court proceedings is clearly erroneous.
Nor, on this record, could they succeed in such an argument. So
we must accept this factual finding. Because unsecured bond
would reasonably ensure a defendant’s presence as much as se-
cured bond, the imposition of secured bonds on the indigent func-
tions solely to keep indigent defendants detained.
Overall, under Cullman County’s bail practices, just like un-
der Harris County’s bail practices, indigent arrestees cannot pay se-
cured bail, “and, as a result, sustain an absolute deprivation of their
most basic liberty interests—freedom from incarceration.” See
ODonnell, 892 F.3d at 162. And they are “incarcerated where sim-
ilarly situated wealthy arrestees are not, solely because the indigent
cannot afford to pay a secured bond.” See id. Also as in ODonnell,
as the due-process analysis here shows, because of their indigency,
Cullman County indigent defendants do not receive a meaningful
opportunity to enjoy pretrial release.
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56 ROSENBAUM, J., Dissenting 18-13894
For these reasons, again, as in ODonnell, heightened scru-
tiny applies when we perform an equal-protection analysis of Cull-
man County’s bail practices. Cullman County’s bail practices fare
no better than did Harris County’s.
There’s no question that Cullman County has legitimate in-
terests in its stated concerns for minimizing the risks of failure to
appear and danger to the community. But for the reasons the dis-
trict court found and I’ve just described, Cullman County’s bail
practices, like Harris County’s in ODonnell, are “not narrowly tai-
lored to meet th[ose] interest[s].” Id. Again echoing Harris
County’s situation in ODonnell, Cullman County did not establish
a “link between financial conditions of release and appearance at
trial or law-abiding behavior before trial.” See id. Nor (like Harris
County in ODonnell) did Cullman County submit data showing
that secured bail was more effective than unsecured bail in ensur-
ing an arrestee’s future appearance. See id. But like the ODonnell
plaintiffs, Hester and the putative class did present data indicating
that using secured bail might increase the likelihood of unlawful
behavior. Id.
As for Cullman County’s claimed interest in “providing pre-
trial release as quickly as possible for all who can afford it,” part of
Cullman County’s equal-protection problem stems from this very
mindset. While it is admirable that Cullman County seeks to pro-
vide speedy release, its legitimate interest relating to this concern
must follow its legitimate interests in minimizing the risks of failure
to appear and danger to the community. Or releasing those who
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18-13894 ROSENBAUM, J., Dissenting 57
can afford bail, without considering whether their scheduled se-
cured bail minimizes failure-to-appear and danger risks, could eas-
ily work at cross-purposes with those stated interests. And so Cull-
man County’s third interest more specifically lies in providing pre-
trial release as quickly as possible for all whose failure-to-appear
and danger risks can be reasonably minimized through adequate
release conditions—no matter if that is by secured money bond or
other conditions. But as I’ve explained, Cullman County’s bail
practices are not narrowly tailored to further that interest.
Given these facts, it is no surprise that the district court
found that “Cullman County’s stated interests [justifying its use of
secured bonds] are illusory and conspicuously arbitrary.” In fact, it
concluded that “[n]one of the interests that the defendants have
identified relating to Cullman County’s secured bail procedures
finds support in the current record.”
So at bottom—and again, as in ODonnell—under Cullman
County’s bail practices, “two misdemeanor arrestees who are iden-
tical in every way—same charge, same criminal backgrounds, same
circumstances, etc.—except that one is wealthy and one is indi-
gent,” “would almost certainly receive identical secured bail
amounts.” See id. at 163. The wealthy arrestee could post bond,
while the indigent one would not. See id. And as a result, “the
wealthy arrestee [would be] less likely to plead guilty, more likely
to receive a shorter sentence or be acquitted, and less likely to bear
the social costs of incarceration.” See id. Meanwhile, the indigent
arrestee would not enjoy those same advantages. See id. Like the
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58 ROSENBAUM, J., Dissenting 18-13894
Fifth Circuit, I conclude that, under Rainwater and Supreme Court
precedent, this violates the Equal Protection Clause of the Four-
teenth Amendment. Id.
B. Contrary to the Majority Opinion’s conclusion, our
caselaw does not “amply support[] the conclusion
that Cullman County’s bail scheme does not uncon-
stitutionally discriminate against the indigent,” Maj.
Op. at 46
The Majority Opinion reaches the opposite determination,
holding that “[o]ur caselaw amply supports the conclusion that
Cullman County’s bail scheme does not unconstitutionally dis-
criminate against the indigent.” Maj. Op. at 46. The Majority
Opinion relies specifically on Rainwater and Walker. See Maj. Op.
at 46–61. Neither helps the Majority Opinion’s case.
I begin with Rainwater. To be sure, the general legal princi-
ples Rainwater articulates do govern our analysis here. As we said
in Walker, “[t]he sine qua non of a Bearden- or Rainwater-style
claim . . . is that the State is treating the indigent and the non-indi-
gent category differently. Only someone who can show that the
indigent are being treated systematically worse solely because of
[their] lack of financial resources—and not for some legitimate
State interest—will be able to make out such a claim.” 901 F.3d at
1260 (internal citation and quotation marks omitted). As I’ve ex-
plained in Section IV.A. of this dissent, Hester and the putative class
can show that they satisfy this test, so Rainwater’s legal principle
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18-13894 ROSENBAUM, J., Dissenting 59
requires the conclusion that Cullman County’s bail practices vio-
late the Fourteenth Amendment.
But the Majority Opinion’s efforts to avoid this conclusion
by shoehorning the facts of Hester’s case into the pattern of the
facts in Rainwater to conclude that Cullman County’s bail practices
are like Florida’s rule and are therefore constitutional are another
story. The problem is that shoe is too small for Hester’s facts to fit.
In Rainwater, as I’ve discussed, the former Fifth Circuit con-
sidered only a facial challenge to Florida’s then-new rule establish-
ing the pretrial bail system. 572 F.2d at 1055. Florida’s bail system’s
sole purpose was “to reasonably assure defendant’s presence at
trial.” Id. at 1057. It did not purport to seek to minimize danger to
the community. See id. at 1055 n.2. And Florida’s rule required
the court to impose simply what was “necessary to assure the de-
fendant’s appearance.” See id.; see also id. at 1058.
Hester’s case is distinguishable for a few reasons. First, as I
have discussed in Section I, unlike the facial challenge at issue in
Rainwater, Hester’s case is based on Cullman County’s actual bail
practices; it is not solely a facial challenge to the Standing Bail Or-
der. So unlike in Rainwater, we must consider the district court’s
factual findings about Cullman County’s actual bail practices; it is
not enough to look simply and solely at the Standing Bail Order.
Second, unlike Florida’s rule, Cullman County asserts as a
justification for bail an interest in reasonably ensuring that the de-
fendant will not present a risk of danger to the community or
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60 ROSENBAUM, J., Dissenting 18-13894
himself. Yet when we look at Cullman County’s actual bail prac-
tices, we find that Cullman County does not, in fact, account for
this interest when it comes to nonindigent defendants. As I have
noted, the bail schedule does not purport to be directed at reason-
ably ensuring that a defendant is not a danger. And the district
court found that Cullman County pretty much never uses its bail-
request-form tool to seek for nonindigent defendants release con-
ditions or restrictions geared towards Cullman County’s claimed
interest in reasonably ensuring the safety of the public.
The Majority Opinion ignores this factual finding without
finding it clearly erroneous and instead concludes, contrary to the
record, that Cullman County “do[es] account for the danger factor
in that law enforcement is expected to file a ‘Bail Request Form’ to
avoid the release of any arrestee who might be a danger to the pub-
lic.” Maj. Op. at 56 n.7. Only by failing to reckon with Cullman
County’s actual bail practices, as found by the district court, is the
Majority Opinion able to conclude that Cullman County “place[s]
all arrestees on equal footing [because] all are released as soon as
they are able to show that they are not a flight risk or danger to the
community.” Maj. Op. at 56. Because that conclusion requires us
to impermissibly ignore the district court’s factual findings that
nonindigent defendants are never assessed for danger, it cannot
bring Hester’s case within the factual pattern on which Rainwater
was decided.
Third, unlike in the facial challenge in Rainwater, here, the
district court made factual findings that “secured money bail is not
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18-13894 ROSENBAUM, J., Dissenting 61
more effective than unsecured bail or non-monetary conditions of
release in reducing the risk of flight from prosecution” and that
“unsecured bonds offer decision-makers the same likelihood of
court appearance as do secured bonds.” It also found that “secured
bail is not necessary to secure a criminal defendant’s appearance.”
The Majority Opinion has not determined those findings to
be clearly erroneous. So on this record, a secured bond cannot be
the least onerous way of reasonably ensuring the defendant’s ap-
pearance. Yet Judge Turner testified that under the Standing Bail
Order system, he sets secured bonds for indigent defendants at
their initial appearances about half the time. And the district court
found that “[i]t is not uncommon for a judge to set a bond in an
amount he knows the defendant cannot afford.” In other words,
as a practice, Cullman County sets indigent defendants’ bonds in
secured amounts it knows they cannot pay, thereby keeping them
in jail pretrial, even though that is unnecessary to reasonably en-
sure their appearances in court.
But in Rainwater, where we looked to only the bail rule at
issue there (not to actual court practices), we assumed the judges’
compliance with the language of the rule, requiring judges not to
impose any more bail than was “necessary” to secure the defend-
ants’ appearances there. For that reason, we found the rule did not
violate Fourteenth Amendment concerns. Because the factual
findings here show that the district court imposes secured bonds
that indigent defendants cannot afford when such bonds are unnec-
essary to obtain their appearances in court, Rainwater’s conclusion
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62 ROSENBAUM, J., Dissenting 18-13894
that the Florida rule did not violate the Fourteenth Amendment
does not determine the outcome here. The district court’s factual
finding in this respect further shows, on the appearance-risk assess-
ment, that Cullman County’s bail practices do not “place all ar-
restees on equal footing,” Maj. Op. at 56, since Cullman County
sets secured bonds, knowing the indigent will be unable to afford
them and obtain release, when unsecured bonds would equally se-
cure the indigent defendants’ court appearances and similarly situ-
ated nonindigent defendants are released.
For these reasons—and contrary to the Majority Opinion’s
conclusion—Rainwater does not support the Majority Opinion’s
determination here that Cullman County’s bail practices comply
with the Fourteenth Amendment. To the contrary, it shows why
Cullman County’s bail practices are not constitutional.
Walker likewise fails to support the conclusion that Cullman
County’s bail practices do not violate the Fourteenth Amendment.
In Walker, as in Rainwater but unlike here, we were faced with
only a facial challenge to Calhoun County’s standing bail order.
901 F.3d at 1267 n.13. We applied rational-basis scrutiny to Cal-
houn County’s standing bail order because the provisions of that
order did not cause the Walker plaintiffs to suffer “an absolute dep-
rivation on account of wealth.” Id. at 1266 n.12.
But we were careful to distinguish the circumstances in
Walker from the facts of ODonnell, where the Fifth Circuit applied
heightened scrutiny to Harris County’s bail practices. See id. In
fact, we emphasized that the Fifth Circuit, unlike the Walker
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18-13894 ROSENBAUM, J., Dissenting 63
Court, had “extensive factual findings from the district court, re-
sulting from a lengthy evidentiary hearing” about Harris County’s
actual bail practices. Id. As we explained in Walker, the ODonnell
district court’s factual findings caused the Fifth Circuit to conclude
that Harris County’s practices “resulted in [indefinite] detainment
solely due to a person’s indigency.” Id. (quoting ODonnell, 892
F.3d at 161). We said that “[w]ere the facts of this case the same,
Walker would have a much stronger argument that indigents in
the City face an absolute deprivation on account of wealth that
would trigger the Rodriguez exception.” Id.
Hester’s case, for reasons I’ve explained in Sections I and IV
of this dissent, is like ODonnell. As in ODonnell, the district court
here held an extended evidentiary hearing and received and re-
viewed many exhibits. And as the district court in ODonnell did
about Harris County’s bail practices, the district court here, based
on the evidence from the hearing, made factual findings about
Cullman County’s actual bail practices. As I’ve discussed, the dis-
trict court’s findings here—which are not clearly erroneous—re-
quire the conclusion that Cullman County’s bail practices, like
those of Harris County, “result in [indefinite] detainment solely
due to a person’s indigency.” See ODonnell, 892 F.3d at 161.
The Majority Opinion asserts that we never said in Walker
that requiring indigent defendants to show that they are not a flight
risk or danger to the community to secure release “would some-
how result in a constitutional infirmity.” Maj. Op. at 55. That’s
true; we didn’t. But that misses the point. It’s not that requiring
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64 ROSENBAUM, J., Dissenting 18-13894
indigent defendants to show that they are not a flight risk or a dan-
ger to the community by itself is unconstitutional. Of course, bail
systems can require indigent defendants to do that before releasing
them.
But bail systems cannot require indigent defendants to make
those showings when they don’t require the same thing of nonin-
digent defendants. And they cannot refuse to release indigent de-
fendants when they release similarly situated nonindigent defend-
ants and have ways to release indigent defendants in a way that
equally satisfies the government’s interests in bail.
As for other aspects of Walker, the Calhoun County bail sys-
tem was different from Cullman County’s bail practices in other
significant ways as well. Though Calhoun County allowed those
defendants who could meet the bail schedule to be released imme-
diately and required indigent defendants to undergo a hearing be-
fore they could be released, Calhoun County’s system included
several procedural guarantees that made those hearings meaning-
ful—procedural guarantees that are not present in Cullman
County’s bail practices. For example, an indigent defendant had a
right to be represented by court-appointed counsel at his bail hear-
ing,Walker, 901 F.3d at 1252; his hearing (where he was repre-
sented) was held within 48 hours of his arrest, id.; the sole purpose
of the hearing was to determine whether the defendant met the
indigency standard—that is, that he earned less than 100 percent of
the federal poverty guidelines (unless there was evidence he had
other resources that might reasonably be used), id.; and if the court
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18-13894 ROSENBAUM, J., Dissenting 65
found he met that standard, the court had to release him on his
own recognizance, without a secured bond, id.
None of these circumstances apply in Cullman County. In
contrast, in Cullman County, an indigent defendant generally does
not receive a bail hearing where he is represented by counsel for a
month from his arrest. Instead, he has an unrepresented appear-
ance before a district judge (or possibly a magistrate) within 72
hours of his arrest. The purpose of the hearing is not only to de-
termine his indigency (by a non-specific standard) but also to deter-
mine what his bail should be (based on an unidentified standard of
proof). The defendant very well may not receive notice of the pur-
pose of that hearing. In addition, by design, the presiding judge
may not ask many questions or receive much information before
determining what bond or other conditions to impose. And the
judge may impose a bond that he knows the defendant cannot af-
ford to pay, effectively detaining the defendant. The judge need
not state his reasons for his decision on the record, so even when
the defendant receives his counseled hearing on his motion to re-
duce bond a month later, counsel may not know why the judge
imposed the bond he did. 7
7 The Majority Opinion opines that “[r]equiring judges to make oral findings .
. . would inject unnecessary procedural complication into the process.” Maj.
Op. at 66–67 n.10. In support of this conclusion, the Majority Opinion cites
ODonnell for the proposition that the Fifth Circuit “decline[d] to hold that the
Constitution requires the County to produce 50,000 written opinions per year
to satisfy due process.” Id. (quoting ODonnell, 892 F.3d at 160). Ironically,
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66 ROSENBAUM, J., Dissenting 18-13894
These circumstances—which contrast significantly with the
procedural protections Calhoun County’s bail system provided—
violate “[t]he fundamental requisite of due process of law,” which
is “the opportunity to be heard . . . at a meaningful time and in a
meaningful manner.” Goldberg, 397 U.S. at 267. Part of that guar-
antee means that “[t]he opportunity to be heard must be tailored
to the capacities and circumstances of those who are to be heard.”
Id. at 269. So indigent defendants who do not receive proper notice
of the purpose of the uncounseled bond hearing and of their rights
at the bond hearing—and who do not receive a counseled bond
hearing for up to a month—do not enjoy an opportunity to be
heard at a meaningful time and in a meaningful manner.
For all these reasons, Walker does not support the conclu-
sion that Cullman County’s bail practices don’t violate the Four-
teenth Amendment.
Finally, I want to address the Majority Opinion’s contention
that Cullman County’s 72-hour period within which it provides in-
itial, uncounseled bond hearings is constitutionally permissible be-
cause “[i]n the federal criminal system, . . . a district court is free to
though, ODonnell did not impose a written-opinion requirement because it
concluded that “requiring magistrates to specifically enunciate their individu-
alized, case-specific reasons for [imposing de facto detention] is a sufficient
remedy.” In other words, the Majority Opinion cites ODonnell’s determina-
tion that oral statements of reasons for bail determinations satisfy due process
to hold that oral statements of reasons for bail determinations are unnecessary
to satisfy due process. I do not see how one follows the other.
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18-13894 ROSENBAUM, J., Dissenting 67
delay a bail hearing by three days after an arrestee’s initial appear-
ance.” Maj. Op. at 54. I do not believe that the Bail Reform Act,
codified at 18 U.S.C. § 3142, necessarily establishes that Cullman
County’s 72-hour period is constitutional.
As relevant here, Salerno, 481 U.S. 739, the case involving
the constitutionality of the Bail Reform Act, considered only
whether the Act’s provisions permitting pretrial detention based on
future dangerousness were constitutional. See id. at 746. It did not
address or have reason to contemplate whether the 72-hour period
set forth in the Act is always (or even ever) permissible under due-
process requirements. And resolving the issue before it did not re-
quire it to determine whether the 72-hour period satisfied due pro-
cess.
But assuming for the purposes of this opinion that Salerno
did establish that a 72-hour period does not always violate due pro-
cess, I do not think it can be fairly read for the proposition that a
72-hour period never violates due process. This is so because the
Bail Reform Act contains several procedural safeguards that are not
always built into every bail system, and that may render the 72-
hour period under the circumstances of the Bail Reform Act more
constitutionally palatable than a 72-hour period might be in other
circumstances. To put a finer point on it, the safeguards that the
Bail Reform includes are not a part of Cullman County’s bail prac-
tices.
For starters, the Bail Reform Act does not purport to gener-
ally authorize all arrestees to be held for 72 hours while awaiting
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68 ROSENBAUM, J., Dissenting 18-13894
their bond hearings. Rather, setting aside circumstances when the
defendant seeks additional time to prepare for a hearing, a defend-
ant may be held for 72 hours before his pretrial-detention hearing
only in limited circumstances. First, either the government must
affirmatively move for pretrial detention, 18 U.S.C. § 3142(f)(1), (2),
or the court sua sponte must determine it should consider pretrial
detention, id. at 3142(f)(2). Second, if the government moves for
pretrial detention, one of four circumstances must exist: (1) the
defendant must be charged with a crime to which Congress has
attached a presumption of serious risk of flight or danger to the
community (or both), see, e.g., id. § 3142(f)(1)(A), (B), (C) (E); (2)
the defendant must be charged with a felony after conviction of at
least two offenses delineated by Congress, see id. § 3142(f)(1)(D);
(3) the government must conclude that the defendant presents “a
serious risk that [he] will flee,” id. § 3142(f)(2)(A); or (4) the govern-
ment must conclude that the defendant presents “a serious risk that
[he] will obstruct or attempt to obstruct justice, or threaten, injure,
or intimidate, or attempt to threaten, injure, or intimidate, a pro-
spective witness or juror,” id. § 3142(f)(2)(B). If the judicial officer
decides a detention hearing is necessary, she must find that either
the third or fourth circumstance applies. See id. § 3142(f)(2). No-
tably, these requirements apply equally to indigent and nonindi-
gent defendants alike.
The upshot of this is that, unlike in Cullman County, where
all indigent arrestees—regardless of the failure-to-appear or danger
risk they present—are subject to up to a 72-hour period of jail
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18-13894 ROSENBAUM, J., Dissenting 69
confinement before their bond hearings, only those who satisfy
specific criteria that make them more likely to need to be held in
pretrial detention are authorized under the Bail Reform Act to be
held for 72 hours before their bail hearings.
Let me put this in further context. If, loosely translated, the
Bail Reform Act’s requirements applied in Cullman County, before
an indigent defendant could be required to wait up to 72 hours for
his bond hearing, the Sheriff would have to affirmatively seek pre-
trial detention for specific indigent defendants because he deter-
mined that they represented a serious risk of flight or a serious risk
of danger (assuming that he also did so for nonindigent defend-
ants—which, the facts here show he does not). That is so be-
cause—except for murder and offenses that could be charged as
murder—Alabama law, unlike federal law, creates no presump-
tions that pretrial detention may be appropriate.
The meaningful differences between the Bail Reform Act
and Cullman County’s bail practices do not end there. Under the
Bail Reform Act, a defendant has a right to be represented by coun-
sel (appointed if necessary), 18 U.S.C. § 3142(f)(2)(B), at the hearing
that occurs within 72 hours. As I’ve noted, though, Cullman
County holds its bond hearings within 72 hours without appointing
counsel to represent indigent defendants at those hearings.
The Bail Reform Act also provides defendants at their hear-
ings “an opportunity to testify, to present witnesses, to cross-exam-
ine witnesses who appear at the hearing, and to present infor-
mation by proffer or otherwise.” Id. Though Cullman County’s
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70 ROSENBAUM, J., Dissenting 18-13894
practices involve asking indigent defendants some limited ques-
tions at their bond hearings, Cullman County forms do not require
judges to allow defendants to make statements and present infor-
mation by proffer or otherwise. Nor do they provide for indigent
defendants to present (or cross-examine) witnesses at the hearing.
Other ways the Bail Reform Act safeguards differ from Cull-
man County’s practices include the requirements that (1) to pretrial
detain a defendant based on a finding that “no condition or combi-
nation of conditions will reasonably assure the safety of any other
person and the community,” the judicial officer must make her
finding by “clear and convincing evidence,” id.; and (2) the Bail
Reform Act requires judges who detain defendants to issue deten-
tion orders that “include written findings of fact and a written state-
ment of the reasons for the detention,” id. § 3142(i)(1). In contrast,
Cullman County has no standard by which the judge must find a
defendant to be a danger or flight risk, and it does not require its
judges to announce in any form (written or oral)—or even make,
for that matter—findings of fact or reasons for the detention.
These differences in safeguards are significant—especially
the right to counsel. And even setting aside the independent con-
stitutional violations Cullman County’s practices might represent,
these Bail Reform Act safeguards could affect the length of the pe-
riod for which a person may be constitutionally held before he has
a bail (or detention) hearing. In other words, when some legisla-
tive presumption or individualized determination that a defendant
may present a serious risk of flight or danger to the community
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18-13894 ROSENBAUM, J., Dissenting 71
exists, and the government provides all (or some constitutionally
significant combination of) the procedural protections the Bail Re-
form Act affords, perhaps due process is better able to tolerate the
delay in the bail proceedings. Due-process-safeguard-wise, the de-
lay may be “worth it.” After all, the Mathews v. Eldridge balancing
test has also been described as a “sliding scale.” See, e.g., Walsh v.
Hodge, 975 F.3d 475, 483 (5th Cir. 2020). And if the procedural
safeguards available affect how long due process allows for an ar-
restee to be held before his bond hearing, Cullman County’s lack-
ing protections mean due process may not tolerate a 72-hour pe-
riod.
Our precedent supports the district court’s conclusion here
that Cullman County’s bail practices violate the Fourteenth
Amendment.
V.
The Majority Opinion incorrectly concludes that the district
court erred in finding a constitutional violation here. It does this
because it baselessly throws out the district court’s factual findings,
even though no party asserts that they are clearly erroneous and
the Majority Opinion does not make that finding, either. Analyz-
ing this case based on its factual record requires the conclusion that
Cullman County’s bail practices violate the Fourteenth Amend-
ment. Cullman County’s practices deprive indigent defendants of
pretrial release when they allow similarly situated nonindigent de-
fendants to enjoy pretrial release, and they do not contain adequate
procedural protections before depriving indigent defendants of
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72 ROSENBAUM, J., Dissenting 18-13894
pretrial release without a meaningful opportunity to be heard for
up to a month or more. For these reasons, I respectfully dissent.