Cullman County lawsuit could have national impact

Apr. 27—A 2017 lawsuit claiming that the use of Cullman County's bail procedures unconstitutionally favor wealthier defendants now has the potential to have a nationwide impact after a petition was filed, requesting the U.S. Supreme Court review the decision from the 11th Circuit Court of Appeals to lift an injunction against the county's cash bail procedures in November.

Background

That petition refers to the case of Bradley Hester. Hester, who voiced indigent status following his 2017 arrest for possession of drug paraphernalia, claims he had his right to pretrial liberty violated when he was forced to sleep on the floor of his overcrowded jail cell with an open and bleeding spider bite wound as he awaited trial because he was unable to pay his $1,000 cash bond. That bond was issued using a predetermined "one-size-fits-all" bail schedule.

Shortly after Hester's arrest, he joined a pre-existing class action lawsuit — Shultz v. Alabama — against the Cullman County Sheriff's Office, Sheriff Matt Gentry and several members of Cullman's 32nd Judicial Circuit Court — including current Circuit Court Judges Chad Floyd and Rusty Turner.

In September 2018, after hearing the case, U.S. District Judge Madeline Hughes Haikala issued an injunction ordering the CCSO to release all bail eligible defendants on unsecured appearance bonds with exceptions for those "arrested for failure to appear or on charges that, by statute, require detention for a period of time; defendants who are intoxicated; defendants who are in need of medical attention; or defendants who have holds on their detention from other jurisdictions. In addition the sheriff shall not immediately release a defendant for whom an arresting officer has submitted a bail request form."

The defendants, using the SBO as basis, sought an appeal to the District Court decision until November 2022, when a divided panel of the 11th Circuit Court of Appeals lifted the injunction, and dismissed the judicial defendants, ruling "pretrial detainees have no fundamental right to pretrial release."

During a press conference in November announcing the reinstatement of Cullman County's use of cash bail, Gentry declared the dispute was over.

"This is done. Once the 11th Circuit made its ruling for the injunction to be lifted, then the 2018 order that our presiding judge put in place is the final ruling," Gentry said.

District Court findings and Supreme Court Petition

In March, the plaintiff's counsel — which includes representatives from the Civil Rights Corps, Southern Poverty Law Center , American Civil Liberties Union of Alabama and ACLU Criminal Law Reform Project — filed a petition with the U.S. Supreme Court claiming it reached its decision by taking into consideration only the formal changes implemented by the SBO while ignoring the district court's factual findings of how it was implemented.

The American Bar Association, the Legal Scholars of Bail — professors Sandra G. Mayson and Kellen R. Funk from the University of Pennsylvania Carey Law School and Columbia Law School, respectively — and the CATO Institute have each filed amicus briefs on behalf of the plaintiff with the Supreme Court, saying Cullman County's use of bail "erodes a core constitutional right."

The defendants argued in the district court that a Standing Bail Order, implemented in February, 2018, amid ongoing mitigation modified the county's bail procedures and invalidated Hester's complaint due to it being filed nine months prior to when the SBO went into effect.

After an evidentiary hearing, which included four witness testimonies and nearly 60 filed exhibits, the district court rejected those claims based on its findings that the defendants "do not fully comply with the new written procedures," and the procedures themselves were "constitutionally deficient."

Like the county's previous bail procedures, under the SBO, bail is set at the time of arrest using a predetermined bail schedule — with a number of charges requiring decreased bail amounts from the previous schedule — which allowed arrestees who are able to pay the predetermined bail amount to be released "ordinarily between 45 and 90 minutes" after their arrest "regardless of the nature of the crime charges, the arrestee's criminal history, or the arrestee's prior record of failures to appear."

During the district court's evidentiary hearing, Turner testified that, under the SBO, he sets secured bond amounts for indigent defendants before they have been provided counsel during their initial appearance — often consisting of a two minute video conference without counsel — "about half the time."

Turner also said he typically does not inquire "much past the defendant's income or indigence status [because he does not] want to get involved with ... the facts on their case until [he has] appointed them counsel."

The petition claims this system, both before and after the SBO went into effect, undermines Gentry's own testimony stating one of his primary interests is "ensuring the safety of the community" by allowing wealthy accused individuals who might pose a threat to public safety purchase their pretrial freedom through bail, while their impoverished counterparts, posing no such threat, remain incarcerated.

"Judge Turner also considers 'the circumstances' of 'the most recent arrest.' For example, in setting the conditions for a 26-year-old male defendant charged with unlawful possession of a controlled substance, Judge Turner considered the fact that the defendant previously served time in prison, and he considered the fact that the defendant was found hiding in a closet with a 14-year-old girl, 'a factor to go with contributing to the delinquency of a minor.' Had that 26-year-old arrestee been able to afford bond, he would have been released as soon as he posted bond without regard to his criminal history or his association with a 14-year-old girl," according to the petition.

The SBO, like the previously enforced injunction, allows law enforcement officers to detain individuals they feel pose an "unreasonable flight risk or danger to the public," until a judge is able to issue an individualized bail amount by submitting a bail request form at the time of arrest. However, Gentry testified the use of this tool is "few and far between," with Turner testifying he had never seen a single bail request submitted with a warrantless arrest.

Gentry said his testimony reflected the CCSO's practices prior to the injunction being issued. In an emailed statement sent to The Times on Friday, April 21, Gentry said, "Since the injunction, it has been our practice to issue a bail request form dependent on the severity of the crime, as well as for repeat offenders."

During the November press conference, Gentry referenced an individual who he said "had been arrested five times for five burglaries within a week and was released," before adding, "that's a failure in the system."

Gentry has declined to further clarify if a bail request was made in regard to that individual at the time of any of the mentioned arrests. He also would not offer details as to why that individual was released if a request was submitted, and has declined to provide any further details regarding the burglaries.

The ABA cites its own Standards for Criminal Justice: Pretrial Release referring to the use of predetermined bail schedules as "arbitrary and inflexible" by excluding "factors other than the charge that may be far more relevant to the likelihood that the defendant will appear for court dates."

The ABA's amicus brief states, "Although Cullman County claims that it must detain defendants to assess dangerousness and flight risk, it requires that assessment only for indigent defendants. As the district court found, 'the system is discriminatory: not all criminal defendants who pose a real and present danger to the public are indigent, but Cullman County detains only indigent criminal defendants who pose a real and present danger to the public. Dangerous defendants with means enjoy pretrial liberty."

University of Alabama associate professor of law Russell Gold described the 11th Circuit's decision to ignore theses findings as the court "playing fast and loose" with the evidence presented to the District Court.

"Trial courts are supposed to collect evidence and appellate courts are supposed to respect that evidence unless it's clearly erroneous. The factual findings weren't even challenged in the 11th Circuit, so I do think the 11th Circuit is playing fast and loose with the evidence in this case. The dissenting opinion [from Judge Robin Rosenbaum] said exactly that," Gold said. "I think it's a real problem what the 11th Circuit did here."

FTAs and Public Safety

During his testimony in the district court, Gentry stated that his two primary concerns as sheriff were increasing the level of public safety and ensuring defendants attend their scheduled court appearances but the majority of expert opinions and empirical analysis provides evidence that the use of cash bail serves as a detriment to these goals.

Circuit Clerk Lisa McSwain — one of the original lawsuit's named defendants before being dismissed by the 11th Circuit — provided the following numbers which reflect the yearly totals for Failure to Appear warrants issued by both Cullman's District and Circuit Courts since 2015.

* 2015- 826

* 2016 — 938

* 2017 — 877

* 2018 — 921

* 2019 — 1171

* 2020 — 968

* 2021 — 1676

* 2022 — 2232

* 2023 (as of April 1) — 511

While there is an increase in 2019 of 250, Gold said it isn't surprising that the much more significant yearly increase came not when the injunction was issued in 2018, but in 2021 when the COVID-19 pandemic caused a number of disruptions to court proceedings.

"There's just too many complicating factors. It is not surprising that somebody might choose to not appear for court if appearing for court poses a serious risk for death. That seems not terribly surprising that it would at least not be a contributing factor in dissuading people from showing up for court," Gold said.

The number of warrants issued during the first three months of 2023 — after the injunction was lifted in November and the use of cash bail was reinstated — puts it on track to surpass 2,000 by the end of the year.

Gentry maintained the view of the injunction being the direct contributing factor causing the increased number of FTAs being issued in the same emailed statement, "What we can say definitively, based on the numbers provided to us by The Cullman Times [obtained by request from McSwain], is that there has been a significant increase in the number of FTAs issued since the Bond Injunction. It is our belief that the Bond Injunction is the direct correlation with the rise in the number of FTAs being issued."

Gold agreed with Gentry in that the two issues bail should address are public safety and ensuring defendants appear in court, but said other methods such as scheduling evening hearings and sending reminders are much more effect way to meet those goals.

"The reasons you would detain people pretrial would be to ensure that they appear for court and to avoid them doing something harmful while they are out in the community in the meantime. But, it's just far from clear to me that whether they can put up some amount of money should have anything to do with that. I mean, if someone is dangerous, they aren't any less dangerous because they can afford their bail," Gold said.

On Jan. 30, Jonathan McLean, president and CEO of the Manhattan based pre-trial service program CASES, submitted testimony to the New York State Senate and Assembly with data on the program.

McLean's testimony said enrollment in the CASES program grew significantly after New York lawmakers passed bail reform policies in 2019, with more than 4,500 individuals enrolled last year.

The testimony also shared in 2021 that 86% of participants made their court appearances, 85% were not re-arrested for a felony and 93% were not re-arrested for a violent felony. McLean also acknowledged that the data presented would likely be ignored by opponents to bail reform.

"Opponents of bail reform started criticizing the law before any data was available, and have continued to do so as increasing amounts of data show the success of bail reform. Bail reform worked. The data on this is conclusive and overwhelming," McLean's testimony said.

With defendants offering no factual evidence to support their argument for the use of cash bail in 2018, the opinion issued by the district court was that, "Cullman County professes concern for the safety of the citizens in the community, but the record demonstrates that that concern is illusory or at least half-hearted in implementation."

Impact

The issue of bail reform is not a new one. When signing the Bail Reform Act of 1966 President Lyndon B. Johnson described the prior bail system as "archaic, unjust and virtually unexamined."

"The principal purpose of bail is to insure that an accused person will return for trial, if he is released after arrest.

"How is that purpose met under the present system? The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price. He languishes in jail weeks, months, and perhaps even years before trial. He does not stay in jail because he is guilty. He does not stay in jail because any sentence has been passed. He does not stay in jail because he is any more likely to flee before trial.

"He stays in jail for one reason only, he stays in jail because he is poor," President Johnson said.

Representing the plaintiff, Senior Staff Attorney with Southern Poverty Law Center Micah West said with conflicting rulings in lower courts, as well as the past Supreme Court rulings, in regard to reforms throughout the country, this case creates an opportunity to have the first national ruling in decades.

"This case is a good vehicle for the Supreme Court because the 11th Circuit's decision conflicts with other circuit courts, state supreme courts and the United States Supreme Court, which have all found that pretrial liberty is a fundamental right. By contrast, the 11th Circuit declared that there is 'no fundamental right to pretrial release' meaning that accused persons may be detained indefinitely with minimal process. This case presents a good vehicle to resolve that split of authority on a question that impacts hundreds of thousands of people across the country every day," West said in an emailed statement to The Times.

Johnson's remarks, although spoken over half a century ago, remain relevant as debates on the use of bail continues to be split by partisan lines. Just this year, Republican lawmakers in Texas began pushing back against previous bail reform efforts in Harris County (Houston) and the Illinois Supreme Court halted portions of the state's SAFE-T Act, recently approved by a predominantly Democratic legislature.

In addition to providing counsel for Hester, the Civil Rights Corp have filed 13 suits challenging the county bail procedures in nine states.

Gold said it can be difficult to predict the actions of the Supreme Court, but said if a ruling is made in regard to Cullman County, the precedent could impact bail reform efforts across the country.

"The issues at play in Cullman County are not particularly different than in many other parts of the country. So, to the extent of if the Court were to take the case and reach some sort of sweeping constitutional ruling, it would make a big difference in lots of parts of the country whichever way the case came out," Gold said.

Counsel for Gentry now has until May 3 to file a response to the petition before any further action is taken.

To view documents submitted to the Supreme Court visit supremecourt.gov.