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Defendant's Attorney: James W. Davis, Steven Troy Marshall

Description: Birmingham, Alabama civil litigation lawyers represented Plaintiffs, who sued Defendants on 42 U.S.C. 1983 civil rights violation theories claiming that Alabama's bail bond system is unconstitutional.

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.
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.

* * *

Under Alabama law, all arrestees not charged with capital
murder have the statutory right to bail.
See Ala. Code §§ 15-13-106
to -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”).

* * *

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
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.
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 5 of 142
6 Opinion of the Court 18-13894
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).

* * *

See: https://media.ca11.uscourts.gov/opinions/pub/files/201813894.pdf

Outcome: Under our plenary de novo review of the facial constitution-
ality of the current Cullman County bail system, we conclude that
USCA11 Case: 18-13894 Date Filed: 07/29/2022 Page: 69 of 142
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

Plaintiff's Experts:

Defendant's Experts:

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