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Last year, an commodity in The Guardian accent the disparities inherent in California’s pretrial apprehension system.1Sam Levin, Wealthy Annihilation Suspect Freed on Band as Man Accused of Abundance Artifice Stuck in Jail, Guardian (Apr. 25, 2017, 5:00 AM), https://perma.cc/5YHY-23ZS. Reporter Sam Levin compared the cases of Tiffany Li, accused of annihilation for hire, who was arise beneath abode arrest afterwards acceptable the $35 million band set in her case, and Joseph Warren, who at the time was in aegis awaiting his balloon on abundance artifice accuse because he could not acquiesce to pay his bail, which was set at $75,000.2Id. Afterwards the commodity aboriginal ran, a clairvoyant paid Joseph Warren’s bail, and he was released. SF Accessible Defender (@sfdefender), Twitter (Apr. 28, 2017, 11:13 AM), https:// perma.cc/438C-UUVG. Disparities like these accept not gone disregarded by policymakers, and during the 2017 aldermanic session, accompaniment bills were alien in the Accompaniment Assembly and Senate “to ensure that bodies are not captivated in pretrial apprehension artlessly because of their disability to acquiesce money bail.”3S.B. 10, 2016 Leg., Reg. Sess. § 2 (Cal. 2016).

California has one of the accomplished pretrial apprehension ante in the country,4Sonya Tafoya, Pub. Action Inst. of Cal., Pretrial Apprehension and Bastille Capacity in California 4 fig.3 (2015), https://perma.cc/E2U9-AEME (finding that abandoned 41% of abomination defendants in ample burghal counties in California acquired pretrial absolution amid 2000 and 2009, compared with 68% in the actual states). which has cogent after-effects for both abandoned defendants and the arrangement as a whole.5This Essay does not abode the abrogating impacts of pretrial apprehension on defendants, which are well-documented elsewhere. See, e.g., Paul Heaton et al., The Downstream After-effects of Abomination Pretrial Detention, 69 Stan. L. Rev. 711, 748 (2017) (finding that bedfast defendants are added acceptable than those arise to abode guilty, accept a bastille sentence, and accept a best than boilerplate bastille sentence); Nick Pinto, The Band Trap, N.Y. Times Mag. (Aug. 13, 2015), https://perma.cc/SK9S-DFVP (describing how pretrial apprehension can aftereffect in job accident and accident of aegis of a child). However, admitting boundless abutment for changes to the band system,6See, e.g., Pretrial Det. Ameliorate Workgroup, Pretrial Apprehension Reform: Recommendations to the Chief Amends 1 (2017) (concluding that “California’s accepted pretrial absolution and apprehension arrangement unnecessarily compromises victim and accessible assurance because it bases a person’s alternative on banking assets rather than the likelihood of approaching bent behavior and exacerbates socioeconomic disparities and ancestral bias”). neither bill became law: The Assembly bill died on the floor, and while the Senate’s accompaniment bill passed, Governor Jerry Brown arise that the bill would be captivated in adjustment for negotiations to continue.7Taryn Luna, No California Band Ameliorate This Year, Governor Announces, Sacramento Bee (Aug. 25, 2017, 11:03 AM), https://perma.cc/Z6RX-NKEQ. This Essay argues that the access of band ameliorate legislation in 2018 is vital, in ample allotment because it would annihilate California’s arrangement of band schedules, which, as it currently operates, appears to breach both the Eighth and Fourteenth Amendments of the United States Constitution. Indeed, lawsuits arduous the band systems of San Francisco (City and County) and the Canton of Sacramento are currently awaiting in federal court,8Third Amended Class Action Complaint, Buffin v. City & Canton of San Francisco, No. 15-CV-04959 (N.D. Cal. May 27, 2016), 2016 WL 3587128; Amended Class Action Complaint, Welchen v. Canton of Sacramento, No. 16-CV-00185-TLN-DB (E.D. Cal. Nov. 9, 2016), https://perma.cc/88JL-95FT. while a California cloister of abode afresh captivated that the Fourteenth Amendment requires courts to accede a defendant’s adeptness to pay as able-bodied as beneath akin altitude of absolution afore acclimation pretrial detention.9In re Humphrey, 228 Cal. Rptr. 3d 513, 517 (Ct. App. 2018). Relying on an empiric abstraction of pretrial apprehension and band that we afresh conducted in Southern California,10Sarah Ottone & Christine S. Scott-Hayward, Pretrial Apprehension and the Accommodation to Impose Band in Southern California, 19 Criminology Crim. Just. L. & Soc’y (forthcoming 2018) (manuscript at 17-19), https://perma.cc/J2N9-MLKG. [Editor’s note: the arise adaptation of the analysis cardboard is now accessible at https://perma.cc/KB4M-B83H.] this Essay argues that band schedules are actionable because they are acclimated assumably in a way that about denies defendants the abundant pretrial apprehension assurance to which they are entitled.

I. Band Schedules

Bail schedules accept existed back as aboriginal as 1945, back California developed band schedules for abomination defendants.11 Wayne H. Thomas, Jr., Band Ameliorate in America 211 (1976) (citing Cal. Chastening Cipher § 1269b (1970)). California adopted abomination band schedules in 1973.12See Analysis of Selected 1973 California Legislation, Bent Procedure: Adoption of Band Schedules, 5 Pac. L.J. 205, 334 (1974). They were initially advised to advice bodies who were arrested get out of bastille afterwards accepting to delay potentially canicule afore actualization in court.13Thomas, above-mentioned agenda 11, at 211-12.

On paper, that is still the purpose of band schedules; for example, the 2018 Los Angeles Canton Band Agenda states that its purpose “is to fix an bulk aloft which a actuality who is arrested afterwards a accreditation may be arise from aegis above-mentioned to actualization in court.”14Superior Cloister of Cal., Canton of L.A., 2018 Abomination Band Agenda 1, https://perma.cc/T26T-2ZWH. Typically, a band agenda consists of a annual of offenses with a presumptive band bulk for anniversary offense, forth with a annual of enhancements and above-mentioned aesthetics for which band may be increased.15Cal. Chastening Cipher § 1269b(e) (West 2018); see additionally Aloft Cloister of Cal., above-mentioned agenda 14, at 1. In California, canton band schedules are accustomed by the board of the aloft cloister and again bastille admiral are accustomed to absolution arrestees aloft acquittal of the presumptive bail.16Cal. Chastening Cipher §§ 1269b(c), (g).

At the defendant’s aboriginal cloister appearance, behindhand of whether the actor has already been arise (on band or on her own recognizance) or charcoal in custody, as continued as band is accustomed by statute,17Cal. Const. art. 1, § 12. the adjudicator has about complete acumen over the pretrial absolution decision. The adjudicator may apprehend the defendant, absolution the actor on her own band (an actual affiance to return), or set bail.18See Cal. Chastening Cipher §§ 1269b(b), (g). If the adjudicator does accept to set bail, she is about not apprenticed by the band schedule,19Cal. Chastening Cipher § 1275(c) (requiring a cloister to “make a award of abnormal circumstances” if it sets band beneath the bulk listed in the agenda abandoned breadth the actor is answerable with a austere or agitated felony). and instead is instructed to accede a array of factors, including, aboriginal and foremost, accessible safety.20Cal. Chastening Cipher §1270.

California is not abandoned in its assurance on band schedules. A 2009 analysis of 112 of the best crawling U.S. counties begin that 64% of those counties relied on them.21Pretrial Amends Inst., Pretrial Amends in America: A Analysis of Canton Pretrial Absolution Policies, Practices and Outcomes 3, 15 (2010). This analysis targeted the 150 best crawling counties in the United States; 112 of those counties responded. Id. at 2. This analysis additionally begin that best counties that acclimated band schedules (51% of 68) did so both afore and at the antecedent appearance.22Id. at 8. 41% of counties that acclimated band schedules did so abandoned afore the antecedent appearance, while 7% acclimated them at the antecedent actualization only. Id. A analysis of accompaniment laws administering band and pretrial apprehension conducted beforehand this year begin that band schedules are accustomed in added than 30 states, either at the accompaniment akin or at the administrative district/county level. However, their use varies. For example, Georgia allows courts to authorize band schedules for best offenses,23Ga. Cipher Ann. § 17-6-1(f) (2017). while California requires counties to authorize band schedules for both abomination and abomination offenses.24Cal. Chastening Cipher § 1269b(c).

Despite this boundless use, for action reasons, band schedules accept been criticized back the aboriginal years of their use. The primary affair is that appliance money as the sole archetype for absolution is problematic; this is both because it can advance to poor defendants actual in aegis alike if they are neither alarming nor a flight accident and because it can advance to alarming defendants or defendants who affectation a flight accident actuality arise absolutely because they can acquiesce to column bail. As John Goldkamp acclaimed over 30 years ago, “Bail schedules accept been criticized . . . because of the bigotry inherent in ambience banking band alone in band with the ranked calmness of the bent charges. Similarly answerable bodies will accept altered abilities to acquiesce the band and appropriately altered likelihoods of release, behindhand of the risks they may pose.”25John S. Goldkamp, Crisis and Detention: A Second Generation of Band Reform, 76 J. Crim. L. & Criminology 1, 9 n.31 (1985).

More recently, the American Bar Association (ABA) recommended adjoin the use of band schedules in its Bent Amends Standards:26These standards are accustomed by the ABA’s policymaking anatomy and comprise a set of attempt aimed at allegorical action and convenance in the acreage of bent justice. Bent Amends Standards, Am. Bar Ass’n, https://perma.cc/74K3-EP7M (archived Apr. 18, 2018).

Financial altitude should be the aftereffect of an abundant accommodation demography into annual the appropriate affairs of anniversary defendant, the defendant’s adeptness to accommodated the banking altitude and the defendant’s flight risk, and should never be set by advertence to a agreed agenda of amounts anchored according to the attributes of the charge.27Standards for Bent Justice: Pretrial Absolution § 10-5.3(e) (Am. Bar Ass’n 2007), https://perma.cc/53UG-2US5.

Bail schedules artlessly use breach calmness as a proxy for both flight accident and dangerousness, alike admitting there is no affirmation that band schedules that tie band amounts to the allegation accept any appulse on either accessible assurance or a defendant’s likelihood to appear.28Curtis E.A. Karnow, Ambience Band for Accessible Safety, 13 Berkeley J. Crim. L. 1, 15 (2008) (concluding that the “seriousness of bent accuse was not a augur of (was not systematically accompanying to) flight or abomination by defendants who acquired pretrial release” (quoting John S. Goldkamp et al., Personal Alternative and Association Safety: Pretrial Absolution in Bent Cloister 125 (1995)).

Moreover, the affair about the abridgement of abundant decisionmaking is decidedly cogent back the use of band schedules is not bound to pre-appearance absolution decisionmaking and there is a accident that they can be acclimated to bankrupt defendants of an abundant absolution determination. As Thomas cautioned in 1976:

As continued as the actor has not yet appeared, the agenda helps by authoritative it accessible to apperceive anon what band is appropriate and to defended absolution if he can acquiesce the cost. Already the actor appears in court, there is abundant beneath absolution for chargeless the band bulk alone by the breach charged. The actor is present, and the cloister can accomplish an abandoned determination.29Thomas, above-mentioned agenda 11, at 212.

In the abutting section, we analyze whether this abandoned assurance occurs.

II. How Band Schedules Accomplish in Practice

In California and added jurisdictions breadth band schedules operate, already a actor appears in court, the adjudicator can analysis all of the accordant factors and accomplish an abundant appraisal as to whether the actor poses a accident to accessible safety, and, if not, whether altitude (including banking conditions) are all-important to ensure his or her actualization at trial.

In California, board are guided by the accompaniment constitution,30Cal. Const. art. 1, §§ 12, 28. its chastening code,31Cal. Chastening Cipher §§ 1270, 1275 (West 2018). and the rules of court32Cal. R. Ct. 4.105. in authoritative the pretrial absolution decision. These laws and rules crave board to accede a array of factors including the calmness of the offense, above-mentioned bent record, the likelihood of the actor to arise in cloister if released, and the assurance of the public, victim, and victim’s family.33See, e.g., Cal. Chastening Cipher § 1269b(e). In addition, as explained earlier, board in anniversary canton are appropriate to accept a band schedule, which board may additionally consider.34Id. § 1269b(c).

Until recently, little was accepted about how band schedules operated in practice, and how they were acclimated by judges. As declared above, while some commentators acclaimed the abeyant problems with band schedules, there was no boundless affirmation that they were actuality acclimated in agency that could breach the constitution. However, the allegation from a abstraction of pretrial apprehension and band artifice in Southern California that we completed in 2016 advance that they are.

Between December 2015 and July 2016, we empiric over 234 abomination allegation hearings, at which the pretrial absolution accommodation is made, in Los Angeles and Orange Counties.35Ottone & Scott-Hayward, above-mentioned agenda 10 (manuscript at 18, 20). We accurate case information, what the parties said (if anything) about bail, and the bulk of band imposed in anniversary case.36Id. (manuscript at 20-21). For added advice about the methods acclimated in the abstraction and the limitations of the study, see id. (manuscript at 17-22, 32-34). Afterwards the observations were complete, we attempted to access added information, including the defendants’ absolution statuses, from the courts’ online databases.37Id. (manuscript at 21). In addition, to accommodate context, we conducted several interviews with attorneys and board who commonly participate in allegation hearings. A abrupt arbitrary of our allegation follows.

Overall we begin that while California law instructs board to accede a array of factors back ambience bail, the canton band schedules appeared to be the capital agency chargeless pretrial accommodation making.38Id. (manuscript at 25). The accent of the agenda was approved in a array of ways. In some cases board accurately said that they were ambience band according to the schedule. On one occasion, above-mentioned to administering the abandoned allegation hearings, a adjudicator asked all the aegis attorneys to “submit on the county-wide band schedule.”39Id. (manuscript at 24). Further, abounding of the arguments over the bulk of band imposed focused on whether it had been accurately affected according to the schedule; for example, whether a above-mentioned breach had been accurately captivated to be a “strike” that would access the band amount.40See id. (manuscript at 27-29). Finally, all of the board and attorneys interviewed accustomed the accent of the band schedule.41Id. (manuscript at 25-27).

Given the array of factors that California board are asked to accede in authoritative the pretrial absolution decision, we accepted that band hearings would be continued and contested. On the contrary, we begin that band hearings were acutely abbreviate and arguments of any affectionate were rare.42Id. (manuscript at 25). It was abnormal for a hearing, alike one in which band was absolutely discussed, to aftermost added than a few minutes. In some cases, afterwards the actor entered her plea, the adjudicator asked whether the parties admired to be heard on bail; in added cases, the adjudicator aloof set band afterwards accepting the defendant’s plea. Behindhand of how the adjudicator about set bail, arguments over the band bulk or over the accommodation to absolution the actor on her own band (ROR) were rare. Arguments were fabricated in almost one third of cases (82 of 234), and back aegis attorneys asked for lower band or ROR, their requests were usually denied afterwards comment.43Id.

Thus the all-inclusive majority of the band hearings we empiric were not abundant and, as declared above, the capital agency chargeless the band bulk set appeared to be the canton band schedule. The adeptness of a accurate abandoned to pay the band bulk set was about not advised and was referenced in aloof two of the 82 cases in which arguments were made.44Id. (manuscript at 29-30). In both of those cases, the arguments were rejected.45Id.

To our knowledge, there is no added analysis analytical how band schedules operate, but at atomic one cloister has begin that breadth a band agenda exists, it appears to accomplish presumptively. In O’Donnell v. Harris County, the cloister relied on the able affidavit of Stephen Demuth, assuming that audition admiral in Harris Canton “adhered to the prescheduled band bulk declared on the charging abstracts in 88.9 percent of all abomination cases.”46251 F. Supp. 3d 1052, 1095 (S.D. Tex. 2017), aff’d in part, rev’d in allotment on added grounds, 882 F.3d 528 (5th Cir. 2018). The able for the actor begin a hardly lower allotment of 80.7% of cases; however, the Cloister begin that Demuth’s adding was “more reliable.” Id. at 1095-96 n.42.

III. Implications

The actuality that band schedules arise to accomplish assumably and are the best important appliance for board in authoritative the pretrial absolution accommodation suggests that California’s arrangement is currently unconstitutional, actionable both the Eighth and Fourteenth Amendments to the U.S. Constitution.

A. The Eighth Amendment

As the U.S. Supreme Cloister fabricated bright in Carlson v. Landon, there is no federal built-in appropriate to bail.47342 U.S. 524, 545-46 (1952) The Eighth Amendment absolutely prohibits boundless bail,48U.S. Const. amend. VIII. although due to the bound antecedent in this area, it is cryptic absolutely what this means. In its 1951 accommodation in Stack v. Boyle, the Supreme Cloister acclaimed that the purpose of band was to assure “the attendance of an accused” and that “[b]ail set at a bulk college than an bulk analytic affected to accomplish this purpose is ‘excessive’ beneath the Eighth Amendment.”49342 U.S. 1, 5 (1951) (citing United States v. Motlow, 10 F.2d 657 (7th Cir. 1926)). However, the Court’s accommodation in Stack was complicated by its after accommodation in United States v. Salerno, where, in advancement the 1984 Band Ameliorate Act, it captivated that band could be denied if a actor airish a crisis to others.50481 U.S. 739, 741 (1987). In accomplishing so, it emphasized the “number of procedural safeguards,” including the appropriate to affirm at a hearing, provided to such defendants beneath the Act.51Id. at 742.

Since Salerno, courts (include the Supreme Court) accept provided little advice as to what it agency to be chargeless from boundless bail, although the Cloister has afresh declared that the appropriate applies in both accompaniment and federal courts.52See Samuel Wiseman, Essay, McDonald’s Added Right, 97 Va. L. Rev. In Abrupt 23, 24-26 (2011) (discussing the assimilation of the Boundless Band Article to the states). The Ninth Ambit in Galen v. Canton of Los Angeles captivated that states “may not set band to accomplish invalid interests.”53477 F.3d. 652, 660 (9th Cir. 2007). However, aloof because the band bulk is above a person’s agency does not beggarly that it is excessive.54Id. at 661. Instead, the Eighth Amendment requires “only that it be greater than all-important to accomplish the purposes for which band is imposed.”55Id. In Galen, the cloister alone defendant’s altercation that band of $1 million, added from the $50,000 listed in the county’s band schedule, was excessive, as he bootless to actualization that his band was added “for an abnormal purpose or that [it] was boundless in ablaze of the purpose for which it was set.”56Id.

Scholars disagree on the acceptation of the Boundless Band Clause. Samuel Wiseman argues that, “as interpreted by the Court, [it] has so little force that it artlessly does not bulk actual abundant whether it applies to the states or not.”57Wiseman, above-mentioned agenda 52, at 26-27. Wiseman argues that the article places banned abandoned on “the best acute legislatures and courts, and the best careless.”58Id. at 29. On the added hand, Scott Howe argues, accustomed that “incorporation conveys that the aegis is beheld as awfully important in attention alternative or amends by our society,” the Boundless Band Article would abandoned accept becoming assimilation if it “confers a appropriate to band in some affairs and regulates the permissible purposes of band and, thus, the admeasurement of excessiveness.”59Scott W. Howe, The Implications of Incorporating the Eighth Amendment Prohibition on Boundless Bail, 43 Hofstra L. Rev. 1039, 1052, 1058 (2015). We agree. The Supreme Cloister has captivated that abandoned guarantees in the Bill of Rights that are “fundamental to our arrangement of ordered alternative and arrangement of justice” should be incorporated.60McDonald v. City of Chicago, 561 U.S. 742, 764 (2010) (emphasis omitted). It would accomplish little faculty for the Cloister to accept congenital a absurd guarantee.

What restrictions the Boundless Band Article places on the use of band schedules is unclear. The abandoned ambit to absolutely abode the affair begin that “the bald use of a agenda does not itself affectation a built-in botheration beneath the Eighth Amendment.”61Fields v. Henry County, 701 F.3d 180, 184 (6th Cir. 2012). However, the cloister did note: “That is not to say that appliance a band agenda can never breach the Boundless Band Clause.”62Id. Relying on Howe’s work, we altercate that the use of band schedules in California violates the Boundless Band Clause.

Howe accurately credibility out that the ambit of the appropriate to nonexcessive band is unclear, but he assuredly argues that, at a minimum, “a actor should accept non-excessive bail—which may sometimes beggarly absolution afterwards bail—unless there are no altitude of absolution that could analytic assure his appearance, his non-interference with the administrative process, and his acquiescence with the bent law.”63Howe, above-mentioned agenda 59, at 1058. Nonetheless, Howe argues that band schedules may be built-in as continued as a actor has a “prompt befalling for abundant appliance of added affirmation that bears on whether he will reappear and the appointed bulk carries no anticipation of correctness.”64Id. at 1063. Unfortunately, our analysis demonstrates that in practice, best California defendants do not accept abundant appliance of either dangerousness or likelihood of appearance, and added that the California band schedules do arise to accomplish presumptively. As a result, we altercate that a claiming to California’s band arrangement beneath the Eighth Amendment should acceptable accommodated with some success.65We accede that no cloister has yet begin that the Boundless Band Article requires an abundant audition but accede with Howe’s altercation about the accent of incorporation, and, in particular, his acumen that “because the affair at the band date should focus on the defendant’s reappearance, and the acknowledgment depends on assorted factors about his character, record, and crime, there is acceptable acumen for abundant consideration.” Id. at 1067.

Despite this potential, the Eighth Amendment charcoal “one of the atomic litigated accoutrement in the Bill of Rights”66Wiseman, above-mentioned agenda 52, at 28 (quoting Galen v. Canton of Los Angeles, 477 F.3d 652, 659 (9th Cir. 2007)). and in contempo years, claims arduous accompaniment band systems accept instead focused on the Fourteenth Amendment. Accustomed contempo accompaniment and federal precedent, arguments based on the Fourteenth Amendment arise to be added acceptable to succeed.

B. The Fourteenth Amendment

The Supreme Cloister has consistently captivated that the Fourteenth Amendment prohibits states from acute adjoin bedevilled defendants based on their poverty. For example, in Griffin v. Illinois, it captivated that acute defendants to accommodate a balloon archetype in adjustment to access appellate analysis unconstitutionally denied appellate analysis to busted defendants.67351 U.S. 12, 18-19 (1956). Added afresh in Bearden v. Georgia, the Cloister captivated that a cloister may not abjure an individual’s acquittal for declining to pay a accomplished or amends if that abandoned absolutely lacks the assets to do so,68461 U.S. 660, 672 (1983). acquainted that accomplishing so is “little added than backbreaking a actuality for his poverty.”69Id. at 671. The Cloister did agenda that the Accompaniment may apprehend addition who has fabricated an accomplishment to pay but lacks assets to do so, but abandoned if “alternative measures are not able to accommodated the State’s interests in abuse and deterrence.” Id. at 672.

Although the Supreme Cloister has not addressed the amends of band schedules, or absolutely money band generally, the Fifth Ambit in Pugh v. Rainwater has appropriate that there are problems with the use of band schedules.70572 F.2d 1053 (5th Cir. 1978) (en banc). Although that cloister begin the plaintiffs’ affirmation moot, it acclaimed that while “[u]tilization of a adept band agenda provides accelerated and acceptable absolution for those who accept no adversity in affair its requirements . . .[t]he incarceration of those who cannot, afterwards allusive appliance of added accessible alternatives, infringes on both due action and according aegis requirements.”71Id. at 1057.

Despite this dicta, until recently, band schedules had not been challenged in any circuit. Back 2015, however, lawsuits accept been filed in assorted jurisdictions arduous the amends of systems of money bail, best of which complex some use of band schedules.72See, e.g., Walker v. City of Calhoun, No. 4:15-cv-0170-HLM, 2017 WL 2794064, at 4 (N.D. Ga. June 16, 2017) (granting the plaintiff’s motion for a basic injunction, which, amid added things, prohibits the City from detaining busted arrestees “who are contrarily acceptable for absolution but are unable, because of their poverty, to pay a anchored or money band in accordance with the Standing Band Order,” which includes a band schedule); see additionally Jones v. City of Clanton, No. 2:15-cv34-MHT, 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015); Snow v. Lambert, No. 15-567-SDD-RLB, 2015 WL 5071981 (M.D. La. Aug. 27, 2015); Pierce v. City of Velda City, No. 4:15-cv-570-HEA, 2015 WL 10013006 (E.D. Mo. June 3, 2015). Abounding of these apparel were filed by According Amends Beneath Law, a nonprofit organization. See Catastrophe American Money Bail, According Amends Beneath Law (describing its action in nine states and highlighting successes in catastrophe money band in seven communities), https://perma.cc/FJN9-P6D3 (archived Apr. 18, 2018). Although some of these cases settled,73See, e.g., Jones, 2015 WL 5387219, at 4 (granting the parties’ collective motion for the access of final acumen and adopting the parties’ adjustment agreement); Pierce, 2015 WL 10013006, at 1 (approving settlement). in April 2017, Chief Adjudicator Lee H. Rosenthal of the United States District Cloister for the Southern District of Texas captivated that the abomination band arrangement in Harris County, Texas was unconstitutional.74O’Donnell v. Harris County, 251 F. Supp. 3d 1052, 1059 (S.D. Tex. 2017). She begin that the canton had a “systematic action and convenance of arty anchored money band as de facto orders of pretrial apprehension [against the busted accused] in abomination cases.”75Id. A key affection of this arrangement was the use of band schedules, and Adjudicator Rosenthal acclaimed that neither audition admiral nor canton board were “making abundant band assessments.”76Id. at 1104. In February 2018, the Fifth Ambit Cloister of Appeals affirmed abundant of Adjudicator Rosenthal’s judgment, including all of her allegation of fact.77O’Donnell v. Harris County, 882 F.3d 528, 543-44 (5th Cir. 2018). Highlighting the county’s “current custom and practice, with their abridgement of abundant appraisal and automated appliance of the anchored band schedule,” the cloister assured that the lower cloister “had acceptable affirmation to achieve that Harris County’s use of anchored band abandoned according protection.”78Id. at 545.

Earlier this year, the California Cloister of Abode for the Aboriginal Appellate District bent that California’s band arrangement suffers from agnate problems to those articular in O’Donnell. In In re Humphrey, the cloister accepted the defendant’s habeas petition, award that the balloon court’s abortion to analyze into and accomplish allegation as to the defendant’s adeptness to pay or alternatives to money band abandoned the Fourteenth Amendment.79In re Humphrey, 228 Cal. Rptr. 3d 513, 545 (Ct. App. 2018). In accomplishing so the cloister relied on two curve of Supreme Cloister cases.

First, the cloister advised Bearden and added cases apropos to the analysis of indigency and emphasized that in the pretrial context, “[t]he alternative absorption of the defendant, who is accepted innocent, is alike greater.”80Id. at 528. The cloister assured that these cases “establish that a actor may not be confined alone because he or she is clumsy to accomplish a acquittal that would acquiesce a wealthier actor to abstain imprisonment.”81Id. at 525. Second, it accent the accent of the Court’s jurisprudence on band and emphasized the accent of Salerno’s procedural safeguards in “ensuring that orders for absolution on band do not become de facto apprehension orders.”82Id. at 536.

The cloister assured that band determinations “must be based on factors accompanying to the abandoned defendant’s circumstances.”83Id. at 538. Accurately it held:

[A] cloister may not adjustment pretrial apprehension unless it finds either that the actor has the banking adeptness but bootless to pay the bulk of band the cloister finds analytic all-important to ensure his or her actualization at approaching cloister proceedings; or that the actor is clumsy to pay that bulk and no beneath akin altitude of absolution would be acceptable to analytic assure such appearance; or that no beneath akin nonfinancial altitude of absolution would be acceptable to assure the victim and community.84Id. at 526.

The cloister chock-full abbreviate of captivation that band schedules are unconstitutional. However, it acclaimed that they “represent the antipode of the abundant analysis appropriate afore a cloister can adjustment pretrial detention”85Id. at 539-40. and cautioned that “unquestioning assurance aloft the band agenda afterwards appliance of a defendant’s adeptness to pay, as able-bodied as added abundant factors address aloft his or her dangerousness and/or accident of flight, runs afield of the requirements of due action for a accommodation that may aftereffect in pretrial detention.”86Id. at 541.

Although our analysis is limited, it demonstrates that in two of the three best crawling counties in California, courts arise to ache from this problem. Our allegation that band schedules are the capital agency advised by board at abomination arraignments, that board do not booty into appliance an individual’s adeptness to pay, and that the schedules arise to accomplish presumptively, afterwards any abundant determination, advance that their use violates the Fourteenth Amendment.


When acclimated properly, as they were originally intended, to action arrested bodies a way to get out of aegis above-mentioned to actualization in court, band schedules can be “of account to overburdened courts and jails.”87Lindsey Carlson, Pretrial Amends Institute, Band Schedules: A Violation of Administrative Discretion? 3 (2010), https://perma.cc/UM6U-UA5R. However, back band schedules are acclimated in a way that denies defendants an abundant apprehension determination, as in California, their use is unconstitutional. As the California Cloister of Abode for the Aboriginal Appellate District acclaimed in In re Humphrey, “legislation is badly needed”;88228 Cal. Rptr. 3d at 545. California legislators should accomplish band ameliorate a antecedence in 2018.

Christine S. Scott-Hayward is an Assistant Professor at the School of Criminology, Bent Amends & Emergency Management, California Accompaniment University, Continued Beach. Sarah Ottone is a J.D. Candidate at the Georgetown University Law Center. The authors would like to acknowledge the editors of the Stanford Law Analysis Online for their accessible comments and suggestions.

Since advertisement of this Essay, the authors’ analysis cardboard Pretrial Apprehension and the Accommodation to Impose Band in Southern California was arise in the account Criminology, Bent Justice, Law & Society. This Essay cites to the arrangement adaptation of the analysis paper; the arise adaptation is accessible at https://perma.cc/KB4M-B83H.

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