Alabama County’s Bail System Withstands Constitutional Challenge

An Alabama county’s bail system, which allows arrestees who can pay bail to get out of jail within 90 minutes of being booked but holds indigent arrestees for up to 72 hours before they receive a hearing, doesn’t violate equal protection or due process, a divided Eleventh Circuit said.

The US District Court for the Northern District of Alabama enjoined Cullman County’s bail system, saying that it impermissibly discriminated against indigent detainees by absolutely depriving them of pretrial release and by denying them procedural due process at their bail hearings.

The US Court of Appeals for the Eleventh Circuit reversed July 29.

Pretrial detainees who don’t secure immediate release “are not being discriminated against due to inability to pay—they are being discriminated against for failure to ensure in the first instance their future appearance at trial,” it said.

States have a compelling interest in assuring the presence at trial of persons charged with a crime, and Cullman County’s bail system is rationally related to that interest, the majority opinion by Judge Barbara Lagoa said.

Nor does Cullman County’s bail system violate due process, the court said. Indigent arrestees are provided notice and a hearing before an impartial judge, where they can prove their inability to post bail and show that they aren’t a flight risk or a danger to the community in order to secure release. There’s no evidence that indigent detainees are being denied an opportunity to be heard at the hearing, the court said.

Cullman County’s procedures are also specifically designed to further the accuracy of the bail judge’s predictions as to whether the arrestee is a flight risk or poses a danger to the community, the court said. For example, the bail judge must inquire about a number of factors, including the arrestee’s criminal record and standing in the community, it said.

Judge R. Lanier Anderson III joined the opinion.

Dissenting Judge Robin S. Rosenbaum said that the risk of appearance failure and danger to the community have real relevance in Cullman County’s bail system as they pertain only to the indigent, who can actually “sit in jail for up to a month or more without having a meaningful opportunity to be heard on bond.”

The Middle District of Alabama Federal Defenders Program Inc., the American Civil Liberties Union Foundation, the Civil Rights Corps, the Southern Poverty Law Center, and Randall C. Marshall of Lolo, Mont., represented the plaintiffs. Webb McNeill Walker PC, the Alabama Attorney General’s Office, and Balch & Bingham LLP represented the defendants.

The case is Schultz v. Alabama, 2022 BL 264183, 11th Cir., No. 18-13894, 7/29/22.