I. Introduction

What is the constitutional doctrine governing cash bail today? We are now a decade into the “third wave” of bail reform in the twentieth century. Its goal has been to wrest bail law and practice in the United States away from its heavy reliance on requiring cash as a condition of release, which sells liberty to those who can buy it and keeps those who can’t behind bars. One prong of the movement has sought relief in the courts, on the premise that the U.S. Constitution prohibits the State from provisioning liberty on the basis of wealth. This Article canvases recent developments on that front.

It is not the first time that reform advocates have invoked the Constitution to challenge cash bail. An earlier wave of reform, in the 1960s, also aspired to eliminate money from the bail system.[1] That movement drove Congress to remake federal bail process and seemed poised to culminate in a transformative pronouncement from the Supreme Court: what the legal scholar Caleb Foote forecast as “The Coming Constitutional Crisis in Bail.”[2] But, as Professor Kellen Funk has written, the pronouncement never came.[3] Politics changed, “the Warren Court gave way to the retrenchments of the Burger era,” and civil rights challenges to money bail petered out. The swell of reform energy spent itself and receded.[4]

Circa 2018, it seemed likely that the contemporary bail reform movement would generate more profound and lasting doctrinal change. The 2015 suicide deaths of Kalief Browder and Sandra Bland had put pretrial incarceration squarely on the national radar.[5] By that point, jail populations had been ballooning for decades, background outrage at the criminal justice system was simmering,[6] pretrial risk assessment was trending, and New Jersey had undertaken its pioneering pretrial reform.[7] Politicians across the political spectrum were receptive to the idea that people’s liberty should not hang on access to cash.[8] The nonprofit Civil Rights Corps launched a civil rights litigation campaign that rapidly picked up steam, challenging money-bail schedules in federal court and notching up victories throughout the South.[9] Change was in the air.

The high-water mark for bail reform litigation was ODonnell, a § 1983 challenge to Houston’s misdemeanor bail system. In 2017, in a magisterial 116-page opinion, Chief Judge Rosenthal of the Southern District of Texas concluded that the system as it then operated violated the Equal Protection and Due Process Clauses of the U.S. Constitution and enjoined its continued operation.[10] On appeal, the Fifth Circuit largely affirmed.[11] ODonnell resulted in a consent decree, the wholesale restructuring of misdemeanor bail process in Harris County, and the election of a new slate of local judges (discussed in other contributions to this volume).[12]

Encouraging court opinions followed elsewhere. Shortly after ODonnell, the Eleventh Circuit issued an opinion in Walker v. City of Calhoun that echoed the core constitutional holdings of ODonnell at least in part.[13] Between 2017 and 2022, other federal court injunctions and settlements of § 1983 bail suits followed.[14] The state courts also got involved; between 2014 and 2021, the Supreme Courts of New Mexico, California, Massachusetts, Arizona, and Nevada each issued significant opinions that commanded a major reworking of bail and detention practice in their states.[15]

For a time, the momentum felt unstoppable. In the shadow of this jurisprudential tsunami, states and localities across the country undertook voluntary reform (also driven by grassroots activism, policy advocacy, mounting social science evidence of the costs of pretrial detention and feasibility of alternate approaches, and the obvious injustice of incarcerating people for their poverty).[16] The nation appeared to be en route to sweeping change in bail law and practice, including doctrinal change driven by constitutional interpretation in the courts. In 2019, Professor Funk could suggest, optimistically, that we might “finally be witnessing the crisis in the federal courts that Foote foretold.”[17]

Alas, times have changed. COVID, with its attendant spikes in violence and public disorder, unleashed a flood of crime hysteria.[18] The fallout for bail reform was swift. Partisan political posturing about crime replaced what had been the collaborative bipartisan policy discourse. Elected officials rolled back or renounced reform initiatives they had championed a few years before.[19] In the federal courts, the Fifth and Eleventh Circuits retrenched. In 2022, in Schultz v. Alabama, the Eleventh Circuit vacated a bail injunction issued by a district court in Cullman County, dismissing the plaintiffs’ constitutional claims.[20] The next year, the Fifth Circuit, sitting en banc in Daves v. Dallas County, overruled ODonnell to hold that “Younger abstention” precluded a federal court from even considering a § 1983 challenge to state-court bail process.[21] Shultz and Daves are now thwarting bail suits both within their circuits and beyond. Even district courts that find Younger inapplicable seem to have caught the spirit of the times and are denying, rather than granting, injunctions.[22] The landmark decisions of the California and Nevada Supreme Courts, meanwhile, met resistance on the ground.[23] The bail pendulum seems to have swung. Indeed, in an inversion of bail reform objectives that would be comical if it were not so tragic, President Trump’s administration is doing its best to coerce states and municipalities into requiring reliance on cash bail.[24]

It is an appropriate moment to take stock. The goal of this symposium Article is to provide a bird’s-eye view of the constitutional jurisprudence of money bail as it stands today, synthesizing shifts in the landscape since ODonnell. The key jurisprudential questions that remain open or hotly contested are (1) in challenges brought in federal court, whether (or when) Younger abstention applies; (2) what test courts should deploy in adjudicating Bearden claims; (3) for purposes of substantive due process, whether (or when) challenged practices implicate a “fundamental right”; (4) what process is “due” for bail determinations, including when detention may follow from inability to post cash bail; (5) when a reviewing court can conclude that bail requirements are “excessive,” and (6) how state constitutional right-to-bail clauses ought to be construed.

This Article proceeds in three Parts. Part I chronicles the recent development of abstention and justiciability doctrine with respect to bail challenges, particularly the new circuit split on Younger abstention. Part II assesses the law with respect to the central federal constitutional claims that plaintiffs have raised.[25] The Conclusion briefly notes potential new fronts in civil rights bail litigation.

The picture that emerges is less bleak than it might at first appear. The most prominent civil rights challenge to a money-bail system in the 1970s, Pugh v. Rainwater, had lasting effects even though the Supreme Court never took up its bail claims.[26] So too will the jurisprudence that this generation of litigation has produced. The equal protection and due process case law forged in the district courts, state courts, and in the substance of ODonnell and Walker remains a strong foundation to build on where plaintiffs can get into court.[27] And the doors of the federal courts may not be closed, wholly or permanently. Daves created a dramatic circuit split on the application of Younger to § 1983 bail suits that the Supreme Court may eventually resolve; there is a spectrum of plausible outcomes.[28] In the meantime, outside the Fifth Circuit and in state-court suits within it, there is scope for building out the meaning of the Excessive Bail Clause, which has not figured in this wave of bail reform litigation to date. There is also broad scope for constitutional and state-constitutional litigation in state courts. Beyond the courts, finally, the most exciting front of continuing change is in state legislatures and on the ground.

II. Threshold Questions

A. Younger Abstention

A structural and strategic question in all civil rights cases is where to sue—or, from a court’s perspective, whether a suit is properly before it or should be heard in another forum. In the bail context, the acute form of this question is whether, or when, federal courts should entertain challenges to state-court bail systems. On the one hand, the continuing coexistence and collaboration between state and federal governments requires that federal courts exercise a certain respect for, and deference to, state judicial operations; we call this “comity.”[29] On the other, state court systems have frequently fallen short of constitutional adherence, and part of the federal courts’ “virtually unflagging” obligation to hear claims within their jurisdiction is to rein in unconstitutional practice in state courts.[30]

Since Reconstruction, the question of when federal courts may or must intervene to police constitutional abuses in state courts has been a civil rights battleground, and bail process has been an important front of combat.[31] In the aftermath of the Civil Rights Movement, two § 1983 class actions involving challenges to money-bail practices, O’Shea v. Littleton and Gerstein v. Pugh, eventually made their way to the Supreme Court—although each challenged other practices as well, and in neither case did the Supreme Court specifically consider the bail claims at issue.[32]

The plaintiffs in O’Shea were a class of Black and/or indigent residents of Cairo, Illinois, who alleged that the local criminal justice system was rife with race and class discrimination at all stages. Their case arrived at the Supreme Court in 1973, just a few years after the Court had sought to limit federal courts’ intervention in state criminal proceedings in Younger v. Harris.[33] Younger had directed federal courts not to enjoin pending state-court criminal prosecutions absent “extraordinary circumstances where the danger of irreparable loss [was] both great and immediate.”[34] In O’Shea, the Court saw a case study for the kind of interference that Younger intended to preclude. It reversed the judgment of the court below and held that the district court had properly dismissed the case.

Gerstein had a different fate. Only one issue from the original suit reached the Supreme Court: the challenge to pretrial detention on a prosecutor’s charge alone with no judicial determination of probable cause.[35] As every law student knows, the Court held the Fourth Amendment to require such a determination as a condition of extended pretrial imprisonment.[36] In a footnote, it affirmed the holding below “that respondents’ claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions” (as articulated by Younger) because the injunction was directed at “the legality of pretrial detention without a judicial hearing” rather than “state prosecutions as such,” and a challenge to custody “could not be raised in defense of the criminal prosecution.”[37] An injunction requiring preliminary hearings thus “could not prejudice the conduct of the trial on the merits.”[38] This was the Supreme Court’s last word on Younger in the criminal pretrial context until the present day.

For a while, Younger abstention seemed like a nonissue in contemporary challenges to bail systems filed in federal court. Defendants raised it, but the courts, citing Gerstein, found it inapplicable.[39] The Eleventh Circuit’s reasoning in Schultz was typical: “Younger does not apply here because Hester is not asking us to enjoin any prosecution. He merely seeks a faster bail determination, which does not require enjoining or even interfering with any ongoing or imminent state prosecution.”[40] In Gerstein’s terminology, the plaintiffs’ claims were directed at “the legality of pretrial detention” rather than “state prosecutions as such.” The alleged illegality was irrelevant “in defense of the criminal prosecution;” and any injunctive relief relating to bail and detention process “could not prejudice the conduct of the trial on the merits.” It seemed fairly clear.[41]

Then came Daves v. Dallas County (Daves II).[42] Daves followed the ODonnell playbook—it sought to enjoin the rigid deployment of a money-bail schedule in Dallas—except that it included those charged with felonies.[43] And initially it looked like Daves would follow ODonnell’s path. The district court granted a preliminary injunction,[44] which a Fifth Circuit panel largely affirmed.[45] But the full complement of Fifth Circuit judges was not pleased. They voted to rehear the case en banc.[46]

So began a ping-pong match between the district and the circuit courts. After the first en banc hearing, the Fifth Circuit vacated the district court’s injunction, sua sponte raised the issue of Younger abstention, and remanded for the district court to consider Younger in the first instance.[47] The district court, in turn, held that Younger did not apply—but that a new Texas statute regulating bail process, S.B. 6, had mooted the suit in any case.[48] Taking the case en banc again, the Fifth Circuit agreed that it was moot, but nonetheless undertook a Younger analysis as well.[49]

Daves II held that “this case, whose aim was to revise by federal decree the Texas state court procedures for felony and misdemeanor pretrial bail, should never have been brought in federal court.”[50] Judge Jones’ majority opinion relied heavily on O’Shea, holding Gerstein inapposite because, whereas the Gerstein plaintiffs challenged their detention without an adequate determination of probable cause, the Daves plaintiffs had received a determination of probable cause.[51] Further, Texas state law provided adequate opportunity for the Daves plaintiffs to challenge the bail requirements imposed.[52] (Six judges concurred in the judgment but would not have considered Younger at all, given the lack of a live case or controversy.)[53]

Daves II marked a tidal shift. It was not unprecedented; in Wallace v. Kern, decided the same year as Gerstein, the Second Circuit had abstained in a class action brought by a pro se group of pretrial detainees challenging bail process in Kings County, New York.[54] Wallace was on the books, but the Supreme Court’s decisions in Gerstein and Sprint Communications, as well as the trend in modern bail cases, pointed decidedly in the other direction.[55] So Daves II was momentous.[56] It has since been cited and followed in bail suits by district courts both within and outside the Fifth Circuit.[57] There now appears to be a dramatic circuit split, with the Fifth and Second Circuits on one side and the Ninth, Eleventh, and arguably the First Circuits on the other.[58] No other circuit has yet weighed in.

Whether (or to what extent) Younger requires federal-court abstention in § 1983 suits has thus become a hotly contested doctrinal question. Some of the concerns that animate Younger and O’Shea are clearly applicable in the context of today’s bail suits. The O’Shea Court was loathe to countenance the possibility of a federal injunction that would require “continuous supervision by the federal court” over state-court criminal proceedings, or a “‘periodic reporting’ system,” which the Court deemed “antipathetic to established principles of comity” and “in sharp conflict with the principles of equitable restraint” long established in case law.[59] The consent decree in Houston and institutional arrangements that followed would certainly seem to qualify as a periodic reporting system involving continuous monitoring.[60]

As a wave of recent scholarship argues, however, there are good reasons to conclude that Younger abstention is not categorically warranted in bail suits, if it ever is.[61] Younger involved a plaintiff seeking to actually halt his own prosecution. The Younger Court saw itself as reaffirming “the settled doctrines that have always confined very narrowly the availability of injunctive relief against state criminal prosecutions.”[62] On its own terms, Younger has no direct bearing on cases challenging pretrial detention rather than prosecution. Nor do subsequent Supreme Court cases that directed federal courts to abstain from hearing suits to enjoin state court civil enforcement proceedings.[63]

As to O’Shea, it may not be as “closely on point” in the bail context as Daves II proclaims it to be.[64] First, the entire Younger discussion in O’Shea is arguably dicta.[65] At the very least, it was an alternative ground that was unnecessary to the judgment, which also rested on standing. Second, and relatedly, the plaintiffs’ claims in O’Shea were much broader and more amorphous than the claims in most bail suits today. The plaintiffs alleged pervasive race and class discrimination in the local criminal justice system and sought correspondingly broad relief—including relief from discriminatory prosecutions and sentences.[66] Given the breadth of the class and what the Court cast as the unbounded, speculative nature of the potential injuries, any injunction addressed to the alleged harm would involve comprehensive federal supervision of the state criminal courts.[67] It is not at all clear that injunctive relief in contemporary bail suits does or must entail such “abrasive and unmanageable intercession.”[68] Third, O’Shea concluded that the plaintiffs had adequate alternative remedies, which is not necessarily the case for bail plaintiffs challenging ongoing detention.[69]

The Younger abstention question for future challenges to state bail systems in the federal courts, then, will be whether the suit at issue is more like Gerstein or O’Shea. That question has a categorical dimension: Do suits that challenge only pretrial custody ever threaten the kind of “interference” with state prosecutions that ought to trigger abstention? Younger and Gerstein suggest not.

Even when challenges to pretrial custody can trigger Younger, there are three further questions: (1) Is unconstitutional pretrial detention an “irreparable,” “great,” and “immediate” harm that surpasses the ordinary “cost, anxiety, and inconvenience of having to defend against a single criminal prosecution”?[70] The Ninth Circuit thinks so,[71] but the Fifth Circuit thinks not, even if it extends for weeks or months.[72] (2) What constitutes an “adequate opportunity” for plaintiffs to pursue their claims in state court? Is there a timeliness component, or requirement of practical availability? The district court in Daves thought so,[73] but the Fifth Circuit disagreed.[74] And finally: (3) Does the applicability of Younger depend on the relief sought? Several district courts have held as much in the wake of Daves II, contrasting Gerstein and O’Shea on this basis and declining to abstain where plaintiffs seek “discrete,” tailored relief.[75] Scholars, too, think the relief contemplated is key to the abstention analysis,[76] as do some circuit judges.[77]

One thing these subsidiary questions make clear is that there may be multiple circuit splits on these different questions, rather than a single one. They also highlight just how fact-bound the Younger analysis must be in any given case.

The future of Younger determinations in federal civil rights bail suits will depend not just on the answers to these questions, but also on deeper trends.[78] A set of scholars has argued that recent decades have seen an expansion of Younger abstention far beyond its original confines, shifting the careful balance between federal and state authority that the Court intended to protect.[79] Charting the trend even further back, Kellen Funk contends that Younger itself accomplished a legal transformation, transmogrifying the legal system’s longstanding commitment to keeping “law” distinct from “equity” into a new concern with protecting the division between state and federal proceedings.[80]

Whatever the origins of Younger’s federalism concerns, the Daves II court was explicitly reacting against what it perceived as federal court overreach into state judicial operations. Noting that “[a] number of cases in this circuit and others are asking federal courts to judicially order and enforce state court bail reforms,” Judge Jones felt the “imperative of reconsidering abstention.”[81] And given what was then the trend against abstention in bail cases, she lamented that “Our Federalism, the guiding light behind Younger, seems to have been forgotten.”[82] To “counteract judicial amnesia,” she invoked the 1960s and early 1970s, when, in her telling, “[i]deas of deference to state governmental systems or state courts seemed to have been overshadowed by the Supreme Court’s enthusiasm for effectuating novel notions of social justice and personal rights.”[83] This is all to say that civil rights bail litigation has revived the deep and enduring debate about how best to balance state sovereignty and federal constitutional supremacy, one that was acute during the Civil Rights Movement and that will not soon be resolved.

The story of Younger has also always been a racial story. Long before Younger, the Reconstruction Congress intentionally imbued federal courts with the power and the responsibility to intervene in state court proceedings—including and especially criminal proceedings—as necessary to ensure enforcement of civil rights for Black Americans.[84] The plaintiff in Younger itself, John Harris, Jr., was a Black civil rights activist,[85] and both O’Shea and Gerstein were class actions that took aim at race and class discrimination in the state criminal justice apparatus.[86] Today, the cash-bail systems at issue in most § 1983 bail challenges disproportionately jail poor and Black defendants.[87] The nation’s appetite for pursuing racial justice is inextricably bound up with the willingness of federal judges to pass judgment on, and potentially police, their state court brethren. For civil rights advocates, the trend is not encouraging. In bail litigation and beyond, across the legal landscape, scholars see in the recent evolution of Younger doctrine “the transformation of a limited doctrine of restraint into a broad shield for systemic constitutional violations.”[88]

B. Standing and Mootness

Younger abstention is by far the most significant threshold barrier on the bail litigation scene at present, but there are some other issues in the mix.

Standing has been a barrier to a few claimants. Federal courts have jurisdiction to hear a suit only if the plaintiffs have Article III standing to raise the claims at issue against the defendants they have sued, and every court has a freestanding obligation to ensure that it has jurisdiction to proceed.[89] In general, bail litigants have been careful to allege a concrete and ongoing injury (unconstitutional detention). Those who have run into standing trouble are third parties rather than those detained.[90]

There has been some question, though, about which defendant(s) bail plaintiffs have standing to sue. Hence, the Daves I court found that the plaintiffs had no standing with respect to the district court criminal judges, who played no role in the challenged bail practices (or so the Fifth Circuit found).[91]

Mootness has been more of a roadblock because litigation often prompts local or state authorities to alter the system under attack. It may then be unclear (1) whether there remains a live controversy as to the old system; and (2) whether the lawsuit can become a vehicle to challenge the new one. Courts have been skeptical of defendants’ efforts to moot cases merely by tweaking their policies,[92] but conversely, where defendant jurisdictions have enacted new law or undertaken comprehensive reform, courts found them to moot cases filed under prior regimes.[93] The analysis here can blend several issues. Mootness overlaps with standing,[94] and both bleed into the assessment of plaintiffs’ “likelihood of success on the merits” for purposes of determining whether a preliminary injunction is warranted.[95] Throw in some comity concerns, and the cluster of related issues bears on whether an injunction would serve “the public interest.” In reviewing a preliminary injunction out of St. Louis, for example, the Eighth Circuit admonished the district court for having “failed to adequately account for [the effect of extensive local rule changes] on the question of whether a preliminary injunction served the public interest in comity between the state and federal judiciaries.”[96] On remand, the district court dismissed the case without prejudice.[97]

III. On the Merits: Equal Protection and Due Process

For cases that make it past threshold abstention, standing, and mootness issues, there remain the merits. This generation of civil rights bail suits has proceeded on three major constitutional theories. These suits have alleged that detention on an unaffordable cash bail requirement with no meaningful consideration of necessity violates (1) equal protection and due process, pursuant to Bearden v. Georgia; (2) substantive due process; and (3) procedural due process.[98] The three theories are deeply intertwined. Funk charted the development of the relevant jurisprudence as of 2019 in The Present Crisis in American Bail.[99] This Part refers readers to that piece for background and picks up the story, describing developments since.

A. Continued Consideration

The first piece of the story, and an important one, is that the courts—if they reach the merits—have continued to universally vindicate the core premise of civil rights bail suits: that due process and equal protection constrain pretrial release and detention process. Defendants tend to argue that the Eighth Amendment’s Excessive Bail Clause and Fourth Amendment, both of which clearly do bear on bail and pretrial detention, provide the exclusive frameworks for assessing the constitutionality of bail systems.[100] On the most limited possible construction, this exclusive framework argument could translate into minimal constitutional protections indeed. But that interpretation is so implausible as to border on absurd, and thankfully the courts have agreed.

As to the Fourth Amendment, defendants initially argued that the requirement of a judicial finding of probable cause within forty-eight hours of arrest is the only constitutional criterion for pretrial detention, no matter how minor the charge, how absurd or abusive the grounds for the detention, or how long it lasts.[101] The Supreme Court has occasionally used language that can be invoked out of context to support this position.[102] But this interpretation would license pretrial detention on the basis of speech protected by the First Amendment, for instance, or religion or race, which cannot be the case. The Supreme Court’s case law evaluating due process challenges to pretrial detention also refutes this possibility.[103] On a close reading of the Supreme Court’s most relevant Fourth Amendment case law, moreover, it becomes apparent that the probable cause language affirms and expands the requirement of probable cause as a necessary condition of extended detention, not a sufficient ground for it. Broader versions of the Fourth Amendment exclusivity argument are more colorable, but still implausible.[104] Every court to address this argument has come to this conclusion, most recently the district court in Tulsa, Oklahoma.[105]

The courts have likewise continued to reject the argument that the Eighth Amendment’s Excessive Bail Clause precludes equal protection and due process claims. The Supreme Court’s sole modern decision construing the Clause held that “[b]ail set at a figure higher than an amount reasonably calculated to fulfill this purpose [of ensuring a defendant’s appearance] is ‘excessive’ under the Eighth Amendment.”[106] Defendants argue that plaintiffs’ core complaint in bail suits is the content of unaffordable bail requirements—that is, the alleged excessiveness of such bond amounts. The response has been that the civil rights bail suits challenge “not the amount and conditions of bail per se, but the process by which those terms are set,” including alleged invidious discrimination against the indigent.[107] The plaintiffs’ claims are therefore “governed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.”[108] The Fifth and Eleventh Circuits held as much in ODonnell and Walker, and no court has disagreed since.[109]

The principle that equal protection and due process impose constitutional limits on pretrial release and detention in addition to the Fourth Amendment and Excessive Bail Clause, now well established in the jurisprudence, is no small matter. The further question, and the one that has fractured the merits case law, is what the nature of those limits might be.

B. Bearden (Equal Protection/Due Process) Claims

Bail plaintiffs’ core claim has been that, pursuant to Bearden v. Georgia, imprisoning people who cannot afford to post a cash bond while releasing those who can violates the constitutional commitments to liberty and equality simultaneously.[110] At a high level, the courts have agreed. As of this writing, the Fifth and Eleventh Circuits; the California, Nevada, Arizona, Massachusetts, Alabama, and Mississippi Supreme Courts; and a ream of both federal and state lower courts have all held that bail systems that wholly condition pretrial liberty on payment of a casually set (or preset) money bond amount violate the federal Equal Protection and Due Process Clauses.[111] This was not true ten years ago. And the recent political and jurisprudential retrenchment has not reversed the trend.

Where the courts have diverged is on the question of when and how it is permissible for bail systems to rely on money bonds—which is to say, what process and substantive findings the Constitution requires to authorize the setting of cash bonds that may result in detention. Can jurisdictions rely on a money-bond schedule or rapid-fire bond settings immediately after arrest, with individualized consideration for those who can’t pay deferred until a hearing a few days later? Can people be jailed on unaffordable bonds after a hearing so long as magistrates say they are considering alternatives and arrestees’ ability to pay? What procedural protections are required for bail hearings? At present, there is deep disagreement on what doctrinal frameworks even govern the analysis of these questions—let alone how to interpret the relevant frameworks, and how they apply given factual variation on the ground.[112]

The story begins with Bearden. Mr. Bearden filed suit to challenge the revocation of his probation for nonpayment of fines and fees.[113] His case followed a line of similar challenges in which the Supreme Court had found other practices that conditioned some criminal justice outcome on ability-to-pay to be unconstitutional.[114] The court unanimously held for Mr. Bearden as well.[115]

What makes Bearden notable as a precedent is the analytical framework that the Supreme Court deployed. Although the parties argued the case principally in terms of equal protection (discrimination against the indigent), Justice O’Connor, writing for the unanimous court, rejected the equal protection tiered-scrutiny framework on the ground that Bearden-type challenges implicate both equal protection and due process.[116] Justice O’Connor reasoned that the composite claim required a more bespoke inquiry, one that considered the individual interest at stake, “the rationality of the connection between legislative means and purpose,” and “the existence of alternative means for effectuating the purpose.”[117] Having undertaken that inquiry, Justice O’Connor concluded that a judge considering revocation for nonpayment of fines and fees must first consider the reasons for nonpayment and alternative means to achieve the state’s goals. “Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence,” Justice O’Connor wrote, “may the court imprison a probationer who has made sufficient bona fide efforts to pay.”[118]

Given that cash bail also results in the imprisonment of those who lack funds, it is a logical inference that the Bearden rule should also govern bail practice—and that it should “apply with special force in the bail context, where fundamental deprivations are at issue, and arrestees are presumed innocent.”[119] Translated into that context, it would prohibit unaffordable cash bail unless “alternative measures are not adequate to meet the State’s interests” in court appearance and public safety.[120] And indeed, in the early years of the bail litigation campaign, federal district courts proved extremely receptive to this claim.[121]

Since the wave of bail litigation reached the circuit courts, however, the story has become considerably more complex. The Eleventh Circuit’s opinion in Walker has generated complicated disagreements about how to interpret and apply Bearden in bail suits.[122] To trace the disagreements fully, though, one must begin with ODonnell.

The debate over Bearden in ODonnell prefigured splits in the jurisprudence to come. Whereas Bearden had explicitly rejected the conventional tiered-scrutiny framework for equal protection claims, or at least purported to, ODonnell carried out the Bearden debate in familiar equal protection terms.[123] The defendants argued that the plaintiffs’ Bearden claim triggered rational basis review. The district court, siding with the plaintiffs, reasoned that the “no alternatives” framework Justice O’Connor deployed in Bearden was itself a form of heightened scrutiny, and therefore applied intermediate scrutiny to Harris County’s misdemeanor bail practices.[124] On appeal, the Fifth Circuit approved intermediate scrutiny.[125] But instead of Bearden, it cited a prior Supreme Court case, San Antonio Independent School District v. Rodriguez,[126] which had established that wealth discrimination claims trigger only rational basis review, with a narrow exception for discrimination resulting in an “absolute deprivation” of a right or benefit.[127] The Fifth Circuit held that the bail system challenged in ODonnell “falls into the exception created by” San Antonio, and endorsed heightened scrutiny on that basis. (Given heightened scrutiny, the Fifth Circuit also affirmed the district court’s conclusion that Harris County’s reflexive and complete reliance on money bail schedules violated the Equal Protection Clause.)[128]

Then came Walker.[129] Contra ODonnell, the Eleventh Circuit held that heightened scrutiny did not apply and that the bail scheme at issue survived a looser review.[130]

One reason for this contrast was that the Calhoun, Georgia bail system at issue in Walker was factually distinct from the Harris County misdemeanor bail system. By the time Walker reached the circuit court, Calhoun had amended its bail process, such that anyone unable to post bail immediately after arrest was entitled to a judicial hearing within forty-eight hours and to release if they could demonstrate indigency. The question in Walker was whether the City of Calhoun violated the Constitution by jailing poor arrestees for two days while those with ready access to cash went free.[131] In Harris County, by contrast, many of those who could not post the preset cash bond had remained jailed until adjudication.[132]

The Eleventh Circuit found this difference to be determinative. Yes, Calhoun was jailing the indigent alone, with no consideration of alternate possibilities, but only for two days.[133] The circuit court held that, under San Antonio, this forty-eight-hour detention did not constitute an “absolute deprivation” of any relevant right.[134] The only right arguably at issue, it reasoned, was the right to pretrial liberty, and two days in jail did not eliminate liberty before trial, it merely delayed it.[135] Thus, per San Antonio, heightened review did not apply.

Mysteriously, the Eleventh Circuit went on to affirm that “the district court was correct to apply the Bearden/Rainwater style of analysis,” but should have construed it as a “traditional” procedural due process model.[136] The “fundamental requirement” of procedural due process is “the opportunity to be heard at a meaningful time and in a meaningful manner.”[137] The Walker Court found a judicial hearing within forty-eight hours to satisfy this requirement, and thus to survive the Bearden challenge.[138]

Whether or not Walker’s conclusion might be defensible, its analysis is confounding. As the ODonnell district court pointed out, Bearden insists on a “no-alternative-measures” inquiry, which makes it a means-end test akin to intermediate (if not strict) scrutiny.[139] It is bewildering, at best, for the Walker Court to say both that heightened review does not apply and that Bearden does. It is still more bewildering to read Bearden as elaborating a “traditional” due process model when the text of Bearden does not cite Mathews v. Eldridge or any component of the traditional due process model and instead articulates a substantive means-ends test.

Nonetheless, four years after Walker, in Schultz v. Alabama, the Eleventh Circuit doubled down on its deference to local bail regimes.[140] Walker had blessed forty-eight hours of jail for those who couldn’t make preset bonds.[141] Because its analysis drew on the constitutional timeline for probable cause determinations, it suggested that forty-eight hours might at least be a cap on imprisonment for indigency. But in Schultz, the Eleventh Circuit approved a bail system that allowed up to seventy-two hours of imprisonment before a hearing (without counsel), required arrestees to prove both indigency and the absence of any flight risk, and adopted only a presumption against unaffordable cash bail.[142] It relied again on San Antonio, holding that three days of automatic imprisonment was not an “absolute deprivation” of any relevant right or benefit.[143] District courts in the Eleventh Circuit have deferred to Walker and Schultz—both to the explicit holdings of the cases, as they must, and to the more general spirit of aloof deference, beyond what the precedent clearly requires.[144]

In the Fifth Circuit, by contrast, ODonnell’s interpretation of Bearden arguably remains binding, or at least persuasive, for trial courts because, although Daves repudiated ODonnell, it did so on the basis of Younger and did not expressly reject ODonnell’s merits analysis.[145] This matters little in cases where Younger abstention will be an issue, given that the Fifth Circuit has now instructed federal trial courts to abstain from deciding such cases at all.[146] But it still has import in cases that do not present Younger concerns.[147]

No other circuit court has yet adjudicated a Bearden challenge to a bail system. In the Tenth Circuit, though, a district court considering a challenge to Tulsa’s bail system recently took a middle path. In Feltz v. Regalado, the district court followed Walker in holding that a forty-eight-hour imprisonment is “constitutionally tolerable,” so long as the detained arrestee then receives “a real bail hearing, with the procedural safeguards required by due process (enabling meaningful consideration and an individualized determination).”[148] In Tulsa, however, no such hearings were happening. The only “hearing” available to jailed arrestees within the first six days of arrest was a rapid-fire bond docket with no representation or meaningful individualized consideration.[149] The district court found that pretrial imprisonment of this duration was an “absolute deprivation” of liberty. Rather than traditional heightened scrutiny, though, it reasoned that the appropriate analytical framework was the test articulated in Bearden itself.[150] Because the individual interest at stake was profound and alternative measures were available to achieve the state’s goals, the district court granted summary judgment for the plaintiffs.[151]

Several state supreme courts, finally, have embraced straightforward Bearden reasoning without detour via San Antonio. The Nevada Supreme Court did so in 2020, in Valdez–Jimenez.[152] The California Supreme Court followed the next year, in In re Humphrey, after a thoughtful analysis of the unique composite inquiry that Bearden laid out.[153] Both state supreme courts found the Bearden “no-adequate-alternatives” test to apply directly in the pretrial sphere, and prohibited pretrial detention on an unaffordable bond amount in the absence of a robust individualized finding that no alternative would meet the state’s interests.[154]

So: As of January 2025, the case law supports the proposition that equal protection, due process, or both prohibit automatically jailing indigent arrestees until trial on the basis of a preset money bail schedule alone. But when jurisdictions provide some kind of individualized determination at some point after arrest, the consensus dissolves. With respect to such mixed systems, the Bearden landscape is marked by consternation and disagreement. The courts disagree on how the key precedents relate and what the appropriate analytical framework is.[155] To the extent that it matters whether there has been an “absolute” deprivation of a right or benefit, the courts’ analyses are more tautological than illuminating. In nearly all of the recent constitutional case law in this realm, moreover, the answers a court reaches to these questions have been outcome-determinative.[156]

Clarification of the doctrine is in order, and there is a logical path out of the morass. Given that Bearden was decided after San Antonio, did not mention San Antonio or the notion of an “absolute deprivation” at all, and instead emphasized the many ways in which the Supreme Court had sought to ensure equal justice for the indigent in criminal proceedings,[157] it seems safe to assume that the Supreme Court did not understand San Antonio to limit the application of Bearden.[158] Rather, the simplest and most coherent gloss on the relationship between those cases, as well as traditional equal protection and procedural due process frameworks, is just that Bearden stands apart from the rest. San Antonio and tiered-scrutiny govern equal protection claims. But Bearden claims are not straightforward equal protection claims, as Justice O’Connor plainly said. Nor are they procedural due process claims subject to Mathews v. Eldridge analysis.[159] Bearden-type challenges should simply be subject to the framework that Bearden itself set out.

This is because Bearden-type claims, as Justice O’Connor explained, are composite claims. Their conceptual premise is that the wrong of imprisoning someone for inability to pay constitutes both a comparative and a substantive wrong. The comparative complaint is that in conditioning some criminal justice outcome on wealth, the government engages in invidious discrimination against the poor.[160] But, as Justice O’Connor noted, the complaint is also one of substantive unfairness: that indigency is not a morally and constitutionally legitimate criterion for depriving someone of liberty. Even if there were no disparate treatment because every person who came before the court was imprisoned for inability to pay, such people would still have a complaint. This substantive-fairness claim sounds in substantive due process.[161]

The federal courts have taken great pains to ignore or evade this substantive component of Bearden claims in bail suits. They routinely construe the due process aspect of Bearden as implicating procedural due process only.[162] But this does not do O’Connor’s opinion analytical justice. Bearden’s reasoning and holding were attuned to the substantive injustice of conditioning liberty on wealth. Its rule substantively revises the grounds on which a court may revoke probation. The substantive prohibition on revocation for inability to pay does also require new procedures, because sentencing courts must engage in a more searching inquiry to assess the probationer’s ability to pay and, if he cannot, whether there are alternatives that can meet the state’s interest. But the complaint in Bearden was comparative and substantive rather than comparative and procedural, and the same is true of the Bearden claims in bail suits. The California Supreme Court, in Humphrey, recognized this fact.[163]

Nor does construing the Bearden framework as heightened scrutiny do it justice. Equal protection tiered-scrutiny is all about classifications; there are some features that, across contexts, ring alarm bells because they are so likely to signal animus and so unlikely to be relevant to legitimate regulatory interests.[164] Access to resources is not one of these.[165] But in the criminal justice context, the stakes for an individual are often profound.[166] And in this particular context, deprivations that flow from wealth are particularly offensive to the principle of “equal justice.”[167] The Bearden analytical framework departs from heightened scrutiny in including a focus on the individual interest at stake in the particular context at issue.[168] It suggests that stringency of the “alternatives” inquiry ought to vary with the importance of the criminal-justice deprivation.[169] Where the deprivation is of liberty, the alternatives inquiry should be stringent indeed.[170]

C. Substantive and Procedural Due Process

The developments in substantive and procedural due process in bail jurisprudence since 2019 are more easily summarized. Except for the Ninth Circuit and district courts within it, the federal courts have mostly dismissed substantive due process claims. By contrast, they have vindicated plaintiffs’ claims that procedural due process imposes some limits on the use of cash-bond requirements that result in pretrial detention (including by assimilating Bearden claims into procedural due process analysis, as discussed above). But there is disagreement on what limits procedural due process sets.

1. Substantive Due Process

Plaintiffs’ standalone substantive due process claim is that reliance on unaffordable cash bail, which is a de facto mechanism of pretrial imprisonment, infringes the fundamental right of “freedom from imprisonment” and so triggers heightened review.[171] (Note that infringement of a fundamental right triggers strict scrutiny for purposes of equal protection analysis also. If there is any infringement of a fundamental right at issue, therefore, analysis can proceed in either rubric.)

The Supreme Court precedent most directly on point is United States v. Salerno.[172] Salerno concerned a facial challenge to what were then the brand-new provisions of the federal Bail Reform Act, which authorized pretrial detention without bail on the basis of dangerousness.[173] The Court sequentially considered, and rejected, the petitioners’ substantive due process, procedural due process, and excessive bail claims.[174] Nonetheless, the opinion provided a framework for assessing substantive due process challenges to pretrial detention.[175] First, the Salerno Court recognized that substantive due process prohibits pretrial punishment.[176] But it held the detention at issue to be regulatory, not punitive.[177] As a regulatory regime, the Court deemed the detention provisions subject to a kind of means-end analysis that gave due regard to the interests at stake.[178] The Court did not explicitly say that it was applying heightened scrutiny, but it invoked many of the relevant terms. Acknowledging both “the importance and fundamental nature” of the individual’s right to liberty and the state’s “legitimate and compelling” interest in preventing crime by pretrial defendants, it upheld the challenged regime on the ground that it was “narrowly” tailored to the state’s interests.[179] The Court did not clarify, however, whether satisfying these terms is necessary or merely sufficient for constitutionality.

Notwithstanding Salerno, the majority of federal courts that have recently adjudicated civil rights bail suits have roundly rejected the substantive due process claim.[180] They have relied on a range of rationales, some more persuasive than others. In general, they have been dismissive of substantive due process altogether. Nearly all have found substantive due process simply inapplicable to complaints they have construed as about discrimination and procedure.[181] Some have invoked Graham v. Connor for the rule that substantive due process is displaced by any other provision that might plausibly govern.[182] Others have found no fundamental right at issue.[183] The strangest holding, from the Eleventh Circuit, is that Salerno was “not a substantive due process case” at all.[184] This denial defies comprehension, given that Salerno addressed the petitioner’s substantive and procedural due process claims in turn, clearly distinguished them, and applied distinct analytical frameworks and lines of case law to each.[185]

The Ninth Circuit and state supreme courts, however, have been far more receptive. The Ninth Circuit embraced what Funk has called a “strong” reading of Salerno in a 2014 case, Lopez-Valenzuela v. Arpaio.[186] Since 2019, two district courts, one in San Francisco and one in Sacramento, have relied on Lopez-Valenzuela to apply strict scrutiny in challenges to bail systems that used money-bond schedules.[187] In both cases the courts found the regimes to fail that standard.[188] Over the same time period, three state supreme courts have taken the same approach, and have issued landmark decisions holding pretrial detention regimes unconstitutional: the California Supreme Court in Humphrey,[189] the Nevada Supreme Court in Valdez-Jimenez,[190] and the Pennsylvania Supreme Court in Talley.[191] Humphrey was particularly momentous, given California’s enormous population.

The courts that have applied strict scrutiny have held that substantive due process prohibits pretrial imprisonment absent some substantive determination that there is no less restrictive alternative that would adequately meet the state’s interests—that is, a finding that detention is necessary. Such a finding, of course, requires a degree of process beyond preset money-bond schedules or rote bail “hearings” in which a magistrate decides bond amounts in thirty seconds. It requires individualized consideration both of ability to pay and, if a cash bond is likely to result in detention, of potential alternatives. Precisely what process is due, and on what timeline, is a question of procedural due process.[192]

2. Procedural Due Process

Procedural due process is the terrain where litigants and courts have fought out the details of what process the Constitution requires for bail determinations. Even on this better-trod terrain, the appropriate analytical framework is contentious. The standard procedural due process framework is the Mathews v. Eldridge balancing test, which considers the individual and state interests at stake, the likelihood of error given the challenged procedures, the value of additional or different procedures in reducing the likelihood of error, and how much of a burden such altered procedures would impose on the state.[193] In Medina v. California, however, the Supreme Court held that, given state expertise and extensive common-law traditions in criminal procedure, “it is appropriate to exercise substantial deference to legislative judgments in this area.”[194] Thus, the only proper analysis is whether the challenged law or action “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”[195] Since then, the Court has applied Mathews in challenges to pretrial detention or civil commitment.[196] It is unclear which one ought to govern in bail suits.

Whichever test applies, the courts have found that preset cash bond schedules or rapid-fire “hearings” with reflexively determined bond amounts are insufficient to justify detention until trial. The two points of contention are (1) what kind of hearing is required and (2) on what timeline.

As to the hearing requirements, some individualized consideration of ability-to-pay is necessary so that the bail-setting court can determine, on an individual basis, what condition(s) of release are necessary to meet the state’s interests in appearance and public safety.[197] On a “strong” reading of Salerno, the procedural protections that the Court approved there are necessary as well as sufficient to justify detention of more than seventy-two hours, including on an unaffordable bail: an adversarial hearing, where the defendant is represented by counsel and has the opportunity to put on evidence; notice of the issues to be decided at the hearing; discovery in advance; written findings on the record; and a right to immediate appeal of a detention (or unaffordable bail) order. But on a “weak” reading, these protections are sufficient rather than necessary.[198]

In general, the courts have not held such robust procedural requirements to apply—at least not to initial bail hearings. All the courts to have sustained plaintiffs’ bail claims have required some individualized consideration of ability to pay and alternatives to a potentially unaffordable bond amount. Some have held that arrestees must have the assistance of counsel at the bail hearing.[199] Among those that have required a finding of necessity for a financial condition (or an unaffordable one), some but not all have required written findings, and most have required at least reviewable findings of record.[200] A few have specified that the bail-setting court must make a finding of necessity by clear and convincing evidence,[201] but others have rejected that standard.[202]

Perhaps the most vigorous debate has been with respect to timing. In the Eleventh Circuit, as noted, Walker had rejected the argument that procedural due process required a determination of indigency within twenty-four hours of arrest by affidavit, rather than within forty-eight hours by hearing. In Mitchell v. Doherty, the Seventh Circuit held a first appearance sixty-eight hours after arrest to be constitutional.[203] Shultz blessed a prehearing window of seventy-two hours. Several courts have been reluctant to set a bright-line constitutional boundary for the timing of an arrestee’s first appearance before a judge for bail-setting.[204] In the Fifth Circuit, though, ODonnell’s 48-hour limit remains persuasive if not binding, and, at least in Tulsa, it is the rule as well.[205] It remains to be seen where the jurisprudence will settle.

IV. Conclusion: New Fronts?

As a whole, the current landscape of bail jurisprudence is more mixed than when Funk described a constitutional “crisis” for money-bail systems in the federal courts in 2019. The federal courts have grown decidedly more hostile to § 1983 challenges to local bail regimes. Shultz and Daves represent—and are shaping—that trend. In the district courts, though, Buffin, Welchen v. Bonta, and Feltz show that the shift is not universal. In the state courts, Humphrey and Valdez-Jimenez took significant strides and remain signal-bearers of bail reform jurisprudence. Given this landscape, in addition to continuing to advance the Bearden and due process claims surveyed here, there are several new directions that future bail litigation might pursue.

One is via the Excessive Bail Clause. The Excessive Bail Clause has not been a significant battlefront in this generation of bail reform—because the civil rights organizations that have most vigorously developed and prosecuted challenges to money bail systems have not invoked it.[206] There are good reasons for this. As discussed above, systemic challenges to conditioning liberty on money target a systemic inequality rather than an exorbitant demand in any particular case. Relatedly, an Excessive Bail Clause claim is inherently individual; it is difficult to see how one could categorically allege substantive excessiveness. One could advance such a claim on behalf of all those detained for inability to post a cash bail—but it would confront an apparent “wall of authority” asserting that bail is not excessive merely because it is unaffordable.[207] The standard for consideration of individual Excessive Bail Clause claims, moreover, has historically been incredibly deferential.[208] Finally, Younger abstention could present a major hurdle to systemic Excessive Bail Clause suits in federal courts.[209]

Still: It might be worth attempting, particularly in individual or state court suits. The ostensible “wall of authority” for the proposition that an unaffordable bail is not per se excessive is more fragile than it appears.[210] And even if unaffordable bail does not demonstrate a per se violation of the Eighth Amendment, courts are routinely wrong on the doctrine. In Shultz, for instance, the Eleventh Circuit declared that “analysis under the Eighth Amendment proceeds without reference to ability to pay.”[211] That contravenes the Supreme Court’s only modern statement with respect to the Excessive Bail Clause, in Stack v. Boyle, where the Court emphasized that bail conditions must be individualized to each particular defendant, taking into consideration his circumstances, including ability to pay.[212]

The most promising path for litigation is in the state courts. State-court litigation escapes the federalism doctrines and tensions that have lately stymied litigants in the Fifth Circuit. State courts also may feel freer to buck the political winds blowing from Washington and the tectonic shifts upending some constitutional doctrines at the Supreme Court. States have their own constitutions, finally, many of which have long protected a “right to bail on sufficient sureties.”[213] There is very little recorded case law interpreting and applying these provisions. It remains to be made.[214]

Beyond the courts, moreover, the bail reform movement is marching along in the legislatures and on the ground. New Jersey and Illinois showcase how much is possible with careful, patient campaigns that build support across a range of stakeholder communities. The ongoing local and grassroots efforts to curtail pointless pretrial imprisonment are too many to number, especially in an already overlong symposium piece. It may appear that the bail pendulum has swung if one just skims national news and the Federal Reporter. But the jurisprudential picture is complex, as I hope to have shown; and in town halls and legislative halls, in local and state courts, there is plenty left to do.

  1. Caleb Foote, The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959, 961 (1965).

  2. Id. at 959, 961, 999; Caleb Foote, The Coming Constitutional Crisis in Bail: II, 113 U. Pa. L. Rev. 1125, 1126 (1965).

  3. Kellen Funk, The Present Crisis in American Bail, 128 Yale L.J.F. 1098, 1116 (2019).

  4. Id. at 1099.

  5. The Kalief Browder Effect, Sols. Journalism Network, https://storytracker.solutionsjournalism.org/collections/2kn34gdh3f (last visited Feb. 6, 2026) [https://perma.cc/WG4C-DGJU]; Ranjana Natarajan et al., Univ. of Tex. Sch. of L. C.R. Clinic, Preventable Tragedies: How to Reduce Mental Health-Related Deaths in Texas Jails 10 (2016), https://law.utexas.edu/wp-content/uploads/sites/11/2016/11/2016-11-CVRC-Preventable-Tragedies.pdf [https://perma.cc/RXL9-YS5K].

  6. It was fueled by, inter alia, The New Jim Crow, the advent of bodycam footage of police violence, the deaths of Eric Garner and Michael Brown at the hands of police, and the growing Black Lives Matter movement. See, e.g., Carolyn Copeland, Ten Years Later, ‘The New Jim Crow’ Continues to Reshape the Way We Organize Around Criminal Justice, Prism (Jan. 6, 2020), https://prismreports.org/2020/01/06/ten-years-later-the-new-jim-crow-continues-to-reshape-the-way-we-organize-around-criminal-justice/ [https://perma.cc/62T3-FHGV]; Alberto R. Gonzales & Donald Q. Cochran, Police-Worn Body Cameras: An Antidote to the “Ferguson Effect?”, 82 Mo. L. Rev. 299, 312 (2017); Paul Butler, Was Black Lives Matter a Failure? It Depends Where You Look: States and Localities Are Where Change in the Criminal Justice System Matters Most, Wash. Post (May 21, 2025) https://www.washingtonpost.com/opinions/2025/05/21/blm-police-reform-states-localities/ [https://perma.cc/WV6G-CWTV].

  7. Holland v. Rosen, 895 F.3d 272, 279–80 (3d Cir. 2018); Melvin Washington, Beyond Jails: Community-Based Strategies for Public Safety, Vera Inst. of Just. (Nov. 2021), https://www.vera.org/beyond-jails-community-based-strategies-for-public-safety [https://perma.cc/CG9V-ES3C].

  8. Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283, 2305–07 (2018); Alberto R. Gonzales & Donald Q. Cochran, supra note 6, at 312; Note, Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing, 131 Harv. L. Rev. 1125, 1130 (2018).

  9. See Pierce v. City of Velda City, No. 4:15-cv-570, 2015 WL 10013006, at *3 (E.D. Mo. June 3, 2015) (issuing a declaratory judgment, pursuant to a settlement of a § 1983 action, affirming plaintiffs’ constitutional claims); Cooper v. City of Dothan, No. 1:15-CV-425, 2015 WL 10013003, at *1–2 (M.D. Ala. June 18, 2015) (granting a temporary restraining order requiring release in a § 1983 suit filed on behalf of a class of indigent arrestees); Jones v. City of Clanton, No. 2:15cv34, 2015 WL 5387219, at *1, *4 (M.D. Ala. Sep. 14, 2015) (entering final judgment approving settlement in a § 1983 suit); Thompson v. Moss Point, No. 1:15cv182, 2015 WL 10322003, at *1 (S.D. Miss. Nov. 6, 2015) (issuing a declaratory judgment affirming plaintiffs’ constitutional claims); Our Work, C.R. Corps, https://civilrightscorps.org/our-work/ [https://perma.cc/92K4-JC2X] (last visited Mar. 26, 2026).

  10. ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1063–64, 1156–57, 1168 (S.D. Tex. 2017), aff’d as modified, 882 F.3d 528 (5th Cir. 2018), and aff’d as modified sub nom. ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018).

  11. ODonnell v. Harris County, 892 F.3d 147, 166 (5th Cir. 2018), overruled by Daves v. Dallas County, 22 F.4th 522 (5th Cir. 2022), and Daves v. Dallas County, 64 F.4th 616 (5th Cir. 2023); see also ODonnell v. Goodhart, 900 F.3d 220, 225 (5th Cir. 2018), overruled by Daves v. Dallas County, Texas, 22 F.4th 522 (5th Cir. 2022) (demonstrating that the Fifth Circuit largely agreed with the analysis of the Southern District of Texas).

  12. Consent Decree at 11, ODonnell v. Harris County, No. 4:16-cv-01414 (S.D. Tex. Nov. 21, 2019); Memorandum and Opinion Approving the Proposed Consent Decree and Settlement Agreement and Granting the Motion to Authorize Compensation of Class Counsel at 6, ODonnell v. Harris County, No. H-16-1414 (S.D. Tex. Nov. 21, 2019).

  13. Walker v. City of Calhoun, 901 F.3d 1245, 1265, 1271 (11th Cir. 2018).

  14. See Buffin v. City & County of San Francisco, No. 15-cv-04959, 2018 WL 424362, at *11 (N.D. Cal. Jan. 16, 2018); Caliste v. Cantrell, 329 F. Supp. 3d 296, 302, 314, 319 (E.D. La. 2018); Shultz v. State, 330 F. Supp. 3d 1344, 1376 (N.D. Ala. 2018); Daves v. Dallas County, 341 F. Supp. 3d 688, 697 (N.D. Tex. 2018); Buffin v. City & County of San Francisco, No. 15-cv-04959, 2019 WL 1017537, at *24 (N.D. Cal. Mar. 4, 2019); Welchen v. Bonta, 630 F. Supp. 3d 1290, 1312 (E.D. Cal. 2022). However, at least one federal class action during this time span resulted in a loss at the district court level. See Edwards v. Cofield, No. 3:17-CV-321, 2018 WL 4101511, at *1, *3 (M.D. Ala. Aug. 28, 2018) (holding that revised county bail procedures satisfied constitutional requirements).

  15. See State v. Brown, 338 P.3d 1276, 1293 (N.M. 2014); Brangan v. Commonwealth, 80 N.E.3d 949, 966 (Mass. 2017); Simpson v. Miller, 387 P.3d 1270, 1278 (Ariz. 2017), cert. denied sub nom., Arizona v. Martinez, 138 S. Ct. 146 (2017); State v. Wein, 417 P.3d 787, 796 (Ariz. 2018); Valdez-Jimenez v. Eighth Jud. Dist. Ct., 460 P.3d 976, 988 (Nev. 2020); In re Humphrey, 482 P.3d 1008, 1022 (Cal. 2021).

  16. See Copeland, supra note 6; Butler, supra note 6.

  17. Funk, supra note 3, at 1101.

  18. Richard Rosenfeld & Ernesto Lopez, Jr., Council on Crim. Just., Pandemic, Social Unrest, and Crime in U.S. Cities: March 2021 Update 17 (2021), https://counciloncj.org/wp-content/uploads/2024/06/Pandemic_Social_Unrest_and_Crime_in_US_Cities_-_March_2021_Update.pdf [https://perma.cc/F3FE-BSA8].

  19. See Dan Sutton, The End of Bail Reform?, SLS Blogs: Stan. Ctr. for Racial Just. (Oct. 2, 2025), https://law.stanford.edu/2025/10/02/the-end-of-bail-reform/ [https://perma.cc/6MRF-TW9U]; Jamiles Lartey, New York Rolled Back Bail Reform. What Will The Rest Of The Country Do?, The Marshall Project (Apr. 23, 2020, at 06:00 ET), https://www.themarshallproject.org/2020/04/23/in-new-york-s-bail-reform-backlash-a-cautionary-tale-for-other-states [https://perma.cc/5ZWL-TDLJ].

  20. Schultz v. Alabama, 42 F.4th 1298, 1335 (11th Cir. 2022).

  21. Daves v. Dallas County (Daves II), 64 F.4th 616, 623, 625, 635 (5th Cir. 2023).

  22. See Edwards v. Cofield, No. 3:17-CV-321, 2018 WL 4101511, at *1–3; Hodges v. Hoffman, 2022 WL 992260, at *3, *11 (M.D. Florida, Apr. 1, 2022); see also Buffin v. City & County of San Francisco, No. 15-cv-04959, 2019 WL 1017537, at *16 (N.D. Cal. Mar. 4, 2019) (declining to grant further injunctive relief after determining that revised bail practices remedied prior constitutional defects).

  23. In re Humphrey, 482 P.3d 1008, 1022 (Cal. 2021); Valdez-Jimenez v. Eighth Jud. Dist. Ct., 460 P.3d 976, 988 (Nev. 2020); see California Bail Reform Efforts Coming up Short, According to Study by UCLA Law, Berkeley Law, UCLA L. (Oct. 26, 2022), https://law.ucla.edu/news/california-bail-reform-efforts-coming-short-according-study-ucla-law-berkeley-law [https://perma.cc/46V2-FYAK]; Riley Snyder, Advocates Say Many Courts Not Adhering to Supreme Court Decision That Restricted Cash Bail, Nev. Indep. (June 5, 2020, at 02:00 CT), https://thenevadaindependent.com/article/advocates-say-many-courts-not-adhering-to-supreme-court-decision-that-restricted-cash-bail [https://perma.cc/KZ4Y-85PJ].

  24. Exec. Order No. 14342, 90 Fed. Reg. 42129 (Aug. 25, 2025); Exec. Order No. 14340, 90 Fed. Reg. 42125 (Aug. 25, 2025). Setting aside any moral or policy assessment of the Executive Orders, it is impressive hypocrisy to punish states and counties with “cashless bail” systems, especially D.C., when the federal government’s own bail system is a cashless one modeled on D.C. See The Fight Over Freedom in D.C., The Bail Project (Nov. 18, 2025), https://bailproject.org/learn/the-fight-over-freedom-in-d-c/ [https://perma.cc/R9AZ-6SBJ].

  25. Nearly all the litigation to date has centered on Bearden claims (which invoke a combination of equal protection and due process), and some suits have included separate procedural and/or substantive due process claims. “[N]otable for its absence,” as Funk has written, is the Excessive Bail Clause. Funk, supra note 3, at 1102–03, 1106.

  26. Pugh v. Rainwater, 572 F.2d 1053, 1055–56 (5th Cir. 1978); see Funk, supra note 3, at 1099, 1121–23.

  27. Supra notes 9–13 and accompanying text.

  28. See infra pp. 1103–04.

  29. See Wallace v. Kern, 520 F.2d 400, 405 (2d. Cir. 1975) (discussing the principal of comity).

  30. Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (citing Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

  31. See generally Kellen Funk, Equity’s Federalism, 97 Notre Dame L. Rev. 2057 (2022) (exploring the interpretive challenges that federal courts have faced in determining their obligation to regulate the constitutional wrongs of states); Funk, supra note 3, at 1112, 1124–25.

  32. O’Shea v. Littleton, 414 U.S. 488, 490, 495, 499 (1974); Gerstein v. Pugh, 420 U.S. 103, 105–07, 120 (1975).

  33. O’Shea, 414 U.S. at 488; Younger v. Harris, 401 U.S. 37, 53 (1971); see also Sprint Commc’ns, Inc., 571 U.S. at 78 (explaining that the lower federal courts’ mandatory jurisdiction is subject to narrow exceptions, Younger abstention being one of them).

  34. Younger, 401 U.S. at 45 (quoting Fenner v. Boykin, 271 U.S. 240, 243–44 (1926)). Since then, the Court has expanded Younger abstention to “certain ‘civil enforcement proceedings’” (like contempt proceedings) and “civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions” (such as orders directed at enforcing a civil judgment). Sprint Commc’ns, Inc., 571 U.S. at 78 (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 368 (1989)). Assuming one such proceeding is at issue, federal courts should abstain only if “(1) the federal proceeding would interfere with an ‘ongoing state judicial proceeding’ [of one of the specified kinds]; (2) the state has an important interest in regulating the subject matter of the claim; and (3) the plaintiff has ‘an adequate opportunity in the state proceedings to raise constitutional challenges’”—and even then, not under certain “extraordinary circumstances” warranting federal relief. Daves II, 64 F.4th 616, 624–25, 624 n.13 (5th Cir. 2023) (quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)); see also Malhan v. Sec’y U.S. Dep’t of State, 938 F.3d 453, 462 (3d Cir. 2019) (explaining how the Sprint categories and Middlesex test relate); Just City, Inc. v. Bonner, 758 F. Supp. 3d 785, 798–99 (W.D. Tenn. 2024) (providing concise statement of Younger doctrine).

  35. Gerstein, 420 U.S. at 105. The lower court opinions were Pugh v. Rainwater, 332 F. Supp. 1107, 1107 (S.D. Fla. 1971), supplemented by 336 F. Supp. 490 (S.D. Fla. 1972); Pugh v. Rainwater, 572 F.2d 1053, 1053 (5th Cir. 1978) (en banc); Pugh v. Rainwater, 557 F.2d 1189, 1189 (5th Cir. 1977). For a succinct chronology and discussion of the case in the context of Younger disputes in bail litigation, see Daves II, 64 F.4th at 639–41 (Southwick, J., concurring in the judgment).

  36. Gerstein, 420 U.S. at 111.

  37. Id. at 108 n.9.

  38. Id.

  39. See, e.g., ODonnell v. Harris County, 892 F.3d 147, 156 (5th Cir. 2018), overruled by Daves v. Dallas County, 22 F.4th 522 (5th Cir. 2022), and Daves II, 64 F.4th 616 (5th Cir. 2023); Walker v. City of Calhoun, 901 F.3d 1245, 1254 (11th Cir. 2018); Arevalo v. Hennessy, 882 F.3d 763, 766 (9th Cir. 2018); Schultz v. Alabama, 42 F.4th 1298, 1312 (11th Cir. 2022).

  40. Schultz, 42 F.4th at 1312 (first citing Walker, 901 F.3d at 1254; then citing Pugh v. Rainwater, 483 F.2d at 781–82; and then citing Gerstein, 420 U.S. 103).

  41. Id. (quoting Gerstein, 420 U.S. at 108 n.9); Gerstein, 420 U.S. at 108 n.9. For a thoughtful discussion of how federalism concerns might be “distributed” throughout the phases of litigation that is premised on the diagnosis, in 2021, that federal courts were “pivoting away from Younger abstention . . . opening the possibility that federal courts could become an important venue for criminal justice reform,” see Anne Rachel Traum, Distributed Federalism: The Transformation of Younger, 106 Corn. L. Rev. 1759, 1759 (2021). Interestingly, in individual § 1983 claims challenging state bail process, the trend was the opposite. Alezeh Rauf, Comment, Abstaining from Abstention: Why Younger Abstention Does Not Apply in 42 U.S.C. § 1983 Bail Litigation, 171 U. Pa. L. Rev. 535, 560 (2023) (“Over the past ten years, there have been twenty-six individual § 1983 challenges to bail proceedings. In all twenty-six cases, courts applied Younger abstention and declined to hear litigants’ bail claims.”).

  42. Daves II, 64 F.4th 616, 616 (5th Cir. 2023).

  43. Daves v. Dallas County, 341 F. Supp. 3d 688, 693–95 (N.D. Tex. 2018).

  44. Id. at 697 (granting preliminary injunction as to equal protection and procedural due process claims).

  45. Daves v. Dallas County, 984 F.3d 381, 388 (5th Cir. 2020).

  46. Daves v. Dallas County, 988 F.3d 834, 835 (5th Cir. 2021).

  47. Daves v. Dallas County (Daves I), 22 F.4th 522, 531, 544, 548 (5th Cir. 2022) (vacating the injunction because “[t]he Plaintiffs’ theory of causation applicable to the District Judges and the County Judges is too speculative to support standing” as to those defendants); id. at 545 (reserving judgment on “whether there is standing to sue the Sheriff or to make the County a party”); id. at 546–50 (rejecting the plaintiffs’ contention that the defendants had waived any Younger objection, remanding for the district court to determine whether abstention was warranted, and instructing the district court to ignore Fifth Circuit precedent in the analysis); id. at 548 (noting that “[a]fter the remand, the en banc court will take a fresh look at Younger, at which time we will have authority to re-evaluate our own precedent”). The decision sparked a fiery dissent by four judges. Id. at 551 (Haynes, J., dissenting).

  48. Daves v. Dallas County, 2022 WL 2473364, at *3–4 (N.D. Tex. July 6, 2022) (holding that Younger did not require abstention because the plaintiffs lacked an adequate opportunity to litigate their constitutional claims in state court); id. at *3 (“In order for an alternative mechanism to press federal claims in state court to qualify as adequate, it must be timely.”).

  49. Daves II, 64 F.4th 616, 620, 623, 633 (5th Cir. 2023).

  50. Id. at 620; see also id. at 636 (Southwick, J., concurring in the judgment) (“An appeal that no longer contains a live controversy is an especially poor vehicle for issuing a significant additional holding.”).

  51. Id. at 620, 626–27, 631, 633 (majority opinion). The opinion additionally noted that the Daves plaintiffs had “presumably violated the criminal law,” a fact of dubious relevance to the Younger analysis.

  52. Id. at 633.

  53. Id. at 636 (Richman, J., concurring in the judgment); id. (Southwick, J., concurring in the judgment); id. at 655–56 (Higginson, J., concurring in part, dissenting in part).

  54. Wallace v. Kern, 520 F.2d 400, 409 (2d Cir. 1975). The Second Circuit had relied on Wallace as recently as 2014. Jordan v. Bailey, 570 F. App’x 42, 44 (2d Cir. 2014). The Fifth Circuit itself had previously invoked Younger to abstain from hearing bail-related claims raised by a pro se petitioner, but his claims were much broader and more amorphous than those in Daves. Tarter v. Hury, 646 F.2d 1010, 1010, 1013–14 (5th Cir. 1981).

  55. Supra notes 35–38 and accompanying text; Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 78–79 (2013).

  56. See Fred O. Smith, Jr., Younger and Older Abstention, 123 Mich. L. Rev. 1449, 1454 (2025) (“[T]he Fifth Circuit’s pivotal 2023 decision in Daves v. Dallas County significantly expanded the scope of criminal abstention doctrine and reshaped the access-to-justice landscape.”).

  57. E.g., H.C. v. Chudzik, No. 5:22-CV-01588, 2025 WL 2312324, at *1–2, *8, *10, *12 (E.D Pa. Aug. 11, 2025) (dismissing on Younger abstention ground because “Plaintiffs’ ask here would necessarily require open-ended federal court oversight of disputed state bail determinations, an area in which the state has a significant interest, and for which its laws provide numerous paths for review”).

  58. Daves II, 64 F.4th at 631–32; Wallace, 520 F.2d at 404–05; Schultz v. Alabama, 42 F.4th 1298, 1312 (11th Cir. 2022); Arevalo v. Hennessy, 882 F.3d 763, 767 (9th Cir. 2018). The First Circuit held Younger not to apply in a case challenging pretrial detention process in the context of juvenile delinquency process. Fernandez v. Trias Monge, 586 F.2d 848, 851 n.2, 853 (1st Cir. 1978) (reasoning that plaintiffs’ “challenge to pretrial detention procedures could not be raised as a defense at trial,” and plaintiffs were not seeking “continuing federal judicial supervision of local criminal procedures”). Fernandez was not a challenge to money-bail process, however.

  59. O’Shea v. Littleton, 414 U.S. 488, 501–02 (1974).

  60. The Daves II court described the Houston situation as precisely “the kind of continuing surveillance [the Court] found to be objectionable in O’Shea.” Daves II, 64 F.4th at 628, 631 (quoting and citing Wallace, 520 F.2d at 406).

  61. John Harland Giammatteo, The New Comity Abstention, 111 Cal. L. Rev. 1705, 1722–23 (2023); Fred O. Smith, Jr. & Peter O’Neill, The Forgotten Face of “Our Federalism”, 135 Yale L.J. 17, 101–02 (2025); Peter R. O’Neill, Note, Younger and the Youth: The Younger Abstention Doctrine in the Child-Welfare Context, 76 Stan. L. Rev. 1323, 1371–72 (2024); Rauf, supra note 41, at 549–50; Funk, supra note 31, at 2092–93; Fred O. Smith, Jr., Abstaining Equitably, 97 Notre Dame L. Rev. 2095, 2106–07 (2022); Smith, supra note 8, at 2309–11.

  62. Younger v. Harris, 401 U.S. 37, 38–39, 53 (1971) (emphasis added).

  63. Daves II, 64 F.4th at 652 (Southwick, J., concurring in the judgment). One of the Supreme Court’s Younger cases apart from O’Shea did involve the legality of a bond, but it was an appeal bond closely tethered to enforcing a civil monetary judgment (also, plaintiff was Texaco and injury was not a deprivation of liberty). Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 3 (1987) (“The principal issue in this case is whether a federal district court lawfully may enjoin a plaintiff who has prevailed in a trial in state court from executing the judgment in its favor pending appeal of that judgment to a state appellate court.”); Gerstein v Pugh, 420 U.S.103, 108 n.9 (1974).

  64. Daves II, 64 F.4th at 626.

  65. Or, as Justice Blackmun characterized it, “an advisory opinion that we are powerless to render.” O’Shea v. Littleton, 414 U.S. 488, 504 (1974) (Blackmun, J., concurring in part).

  66. Id. at 490–94.

  67. Id. at 495, 501.

  68. Id. at 504.

  69. Id.

  70. Younger v. Harris, 401 U.S 37, 37, 46 (1971).

  71. Arevalo v. Hennessy, 882 F.3d 763, 767 (9th Cir. 2018) (finding that detention for “six months without a constitutionally adequate bail hearing . . . easily falls within the irreparable harm exception to Younger”).

  72. See Daves II, 64 F.4th 616, 632–33 (5th Cir. 2023); Little v. Doguet, 71 F.4th 340, 347 (5th Cir. 2023).

  73. Daves v. Dallas County, 341 F. Supp. 3d 688, 696 (N.D. Tex. 2018).

  74. Daves II, 64 F.4th at 633 (“The gist of Younger’s test for availability, however, lies in the fact that errors can be rectified according to state law, not that they must be rectified virtually immediately.”); id. (endorsing the position that technically available state court remedies constitute an adequate opportunity regardless of their actual availability in practice). But see id. at 636 (Richman, J., concurring in the judgment) (“I cannot say, categorically, that Younger abstention will always be required when a defendant brings federal claims challenging bail bond procedures,” because it may depend on whether there exists an “adequate avenue under state law to challenge bail procedures or pre-trial detentions on federal grounds”).

  75. Just City, Inc. v. Bonner, 758 F. Supp. 3d 785, 800 (W.D. Tenn. 2024) (“Unlike O’Shea, the relief Just City seeks is discrete.”); Feltz v. Regalado, 751 F. Supp. 3d 1198, 1224 (N.D. Okla. 2024) (finding that, in contrast to a Daves injunction, the proposed injunction “would do little more than impose . . . the constitutional obligations any court has to an indigent arrestee who is confronted with an initial bail determination predicated on a preset bond schedule”); see also Daves I, 22 F.4th 522, 548–51 (5th Cir. 2022) (Higginson, J., concurring only in judgment to remand) (suggesting that an injunction requiring “a simple, nondiscretionary procedural safeguard” would not run afoul of Younger) (quoting Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. 1981)).

  76. See, e.g., Rauf, supra note 41, at 557 (arguing on the basis of case law as of 2022 that “where litigants narrowly tailor their requested relief for bail procedures to preserve state court discretion, courts should not and likely will not apply Younger abstention.”); Giammatteo, supra note 61, at 1709 (arguing that “any valid comity and federalism concerns are properly considered at the remedial stage of litigation challenging state court procedure.”).

  77. E.g., Daves II, 64 F.4th at 648 (Southwick, J., concurring in the judgment) (“Abstention requires fact-based analysis on what the plaintiffs seek and how burdensome it would be.”).

  78. For a discussion in this volume, see generally Kellen Funk, Uncomfortably Reminiscent: ODonnell v. Harris County in History and Memory, 63 Hou. L. Rev. 981 (2026) (discussing the historical background of federal civil rights bail suits).

  79. Smith, supra note 56, at 1455.

  80. Funk, supra note 31, at 2085; see also Smith, supra note 56, at 1455 (arguing that “recent judicial efforts to broaden criminal abstention not only conflict with the established framework of Younger and its progeny, but also represent a significant departure from centuries-old legal principles that balanced respect for state proceedings with necessary exceptions to protect fundamental rights.”).

  81. Daves II, 64 F.4th at 623.

  82. Id.

  83. Id. at 623–24.

  84. Funk, supra note 31, at 2089–90; Funk, supra note 78, at 994.

  85. Smith & O’Neill, supra note 61, at 22–23.

  86. O’Shea v. Littleton, 414 U.S. 488, 490 (1974); Gerstein v. Pugh, 420 U.S. 103, 106–08 (1975).

  87. See generally Alison Hung, Municipal Liability for Judicially Promulgated Bail Schedules after Daves v. Dallas County, 122 Colum. L. Rev. F. 177, 180 (2022) (arguing that the tool used to address judicial racial disparity is 42 U.S.C. § 1983); Smith, supra note 8, at 2309 (quoting the Harris County Sheriff) (“When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately black and Hispanic, that’s not a rational system.”)

  88. Smith & O’Neill, supra note 61, at 102–03.

  89. See Stark v. Wickard, 321 U.S. 288, 310 (1944); O’Shea, 414 U.S. at 498.

  90. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 106–07, 109 (1975). See also Just City, Inc. v. Bonner, 758 F. Supp. 3d 785, 805, 807, 819 (W.D. Tenn. 2024) (holding that third party bail fund organization could not adequately demonstrate standing on a “diversion of resources” theory to warrant a preliminary injunction on money bail system); Holland v. Rosen, 895 F.3d 272, 287–88 (3d Cir. 2018) (holding that bail bond agency lacked standing to join a lawsuit challenging New Jersey’s post-reform bail regime).

  91. Daves I, 22 F.4th 522, 540–41, 544 (5th Cir. 2022). In Hester v. Gentry (Shultz v. Alabama), Sheriff Gentry filed a motion to dismiss the suit against him on similar grounds but did not prevail. Schultz v. Alabama, 42 F.4th 1298, 1313–14 (11th Cir. 2022).

  92. E.g., Walker v. City of Calhoun, 901 F.3d 1245, 1270–72 (11th Cir. 2018) (holding, pursuant to voluntary cessation doctrine, that the defendant city’s voluntary changes to its bail policy did not moot the original claims and the district court could enjoin a return to the original policy (citing Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, 868 F.3d 1248, 1255 (11th Cir. 2017) (en banc) (“[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.” (internal quotation marks omitted)))).

  93. E.g., Daves II , 64 F.4th 616, 635 (5th Cir. 2023) (holding that the passage of S.B. 6 rendered the plaintiffs’ challenge to the previous policy moot, although the plaintiffs alleged that some claims applied to S.B. 6 as well); Schultz, 42 F.4th at 1308–09, 1319; Russell v. Harris County, No. H-19-226, 2023 WL 5658936, at *4 (S.D. Tex. Aug. 31, 2023) (reluctantly following Daves and dismissing case as moot).

  94. For one illustration, see the debate between the Eleventh Circuit majority and dissenting opinions in Shultz v. Alabama. Sixteen days before a hearing on the plaintiffs’ motion for a preliminary injunction, Cullman County had issued a “Standing Bail Order” that revamped its bail process. Finding that constitutional violations persisted, the district court preliminarily enjoined the new process. On appeal, the Eleventh Circuit held that the named plaintiff, Hester, still had standing because he had standing when the suit was filed, and, invoking the voluntary cessation doctrine, the Eleventh Circuit held that the Standing Order did not moot the case. Schultz, 42 F.4th at 1318–22. But given that Hester had been detained under the old system, and could not allege any injury attributable to the new Standing Bail Order, the Eleventh Circuit construed the suit as a facial challenge to the new process because treating it as an as-applied challenge to the process “would violate core justiciability principles.” Id. at 1319. Judge Rosenbaum, in dissent, argued that if there was no reason to suspect ongoing constitutional violations under the Standing Bail Order, the case was moot, and if there was reason to suspect ongoing violations, as the district court had concluded, then the majority was inappropriately disregarding the findings of fact below. Id. at 1339–40 (Rosenbaum, J., dissenting).

  95. Cf. Just City, Inc. v. Bonner, 758 F. Supp. 3d 785, 795, 807–08 (W.D. Tenn. 2024) (declining to preliminarily enjoin procedures pursuant to a new statute, not on mootness grounds, but because in the absence of past practice evidence the plaintiffs had not shown a sufficient likelihood of success on the merits).

  96. Dixon v. City of St. Louis, 950 F.3d 1052, 1056 (8th Cir. 2020).

  97. Dixon v. City of St. Louis, No. 4:19-cv-0112-AGF, 2021 WL 4709749, at *11 (E.D. Mo. Oct. 8, 2021) (“Defendants’ practices have evolved dramatically such that further proceedings on the merits in this Court would offend doctrines of mootness and comity.”).

  98. Bearden v. Georgia, 461 U.S. 660, 660 (1983).

  99. See generally Funk, supra note 3 (surveying the troubled history of American bail and the constitutional theories formed from litigations about it).

  100. See Walker v. City of Calhoun, 901 F.3d 1245, 1259 (11th Cir. 2018) (“[Courts] are cognizant that the Supreme Court’s Graham decision ‘requires that if a constitutional claim is covered by a specific constitutional provision, such as the . . . Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.’” (quoting United States v. Lanier, 520 U.S. 259, 272 n.9 (1997)) (citing Graham v. Connor, 490 U.S. 386 (1989))).

  101. Brief for Am. Bail Coal. et al. as Amici Curiae Supporting Defendant-Appellant at 27–29, Walker, 901 F.3d 1245 (11th Cir. June 21, 2016) (No. 16-10521).

  102. See Funk, supra note 3, at 1120–22.

  103. E.g., United States v. Salerno, 481 U.S. 739, 746–52 (1987) (conducting analyses pursuant to substantive and procedural due process); Bell v. Wolfish, 441 U.S. 520, 535 (1979) (holding that “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law” and assessing challenged conditions of confinement accordingly).

  104. See Walker, 901 F.3d at 1266. The broader argument is that “[b]efore a finding of probable cause, the Fourth Amendment protects an arrestee; after such a finding, the Fourteenth Amendment protects a pretrial detainee.” McGee v. Parsano, 55 F.4th 563, 569 (7th Cir. 2022) (quoting Pulera v. Sarzant, 966 F.3d 540, 549 (7th Cir. 2020)). If the Fourth Amendment provides the exclusive protection before a finding of probable cause, it would eliminate any other constitutional constraints on what the state may do to arrestees in the first two days after arrest. This seems implausible (unless the entire slate of additional constitutional protections is incorporated, as it were, by way of the Fourth Amendment’s reasonableness requirement). See Funk, supra note 3, at 1123, for additional discussion.

  105. Feltz v. Regalado, 751 F. Supp. 3d 1198, 1226–27 (N.D. Okla. 2024) (rejecting defendants’ Fourth Amendment argument and noting that “no case adjudicating a challenge to bail practices does so (regardless of outcome) on the basis of a Fourth Amendment analysis”).

  106. Stack v. Boyle, 342 U.S. 1, 5 (1951). In Salerno, the Court additionally held that the Clause does not preclude detention without bail on grounds of dangerousness. Salerno, 481 U.S. at 755.

  107. Feltz, 751 F. Supp. 3d at 1228 (quoting Walker v. City of Calhoun, 901 F.3d 1245, 1259 (11th Cir. 2018)).

  108. Id. at 1228.

  109. Id.

  110. Bearden v. Georgia, 461 U.S. 660, 663 (1983).

  111. ODonnell v. Harris County, 892 F.3d 147, 152, 163 (5th Cir. 2018), overruled by Daves I, 22 F.4th 522 (5th Cir. 2022), and Daves II, 64 F.4th 616 (5th Cir. 2023); Walker, 901 F.3d at 1272; In re Humphrey, 482 P.3d 1008, 1013, 1018 (Cal. 2021); Valdez-Jimenez v. Eighth Jud. Dist. Ct., 460 P.3d 976, 983–84, 988 (Nev. 2020); Simpson v. Miller, 387 P.3d 1270, 1278 (Ariz. 2017); Brangan v. Commonwealth, 80 N.E.3d 949, 963–65 (Mass. 2017); State v. Blake, 642 So. 2d 959, 968 (Ala. 1994); Lee v. Lawson, 375 So. 2d 1019, 1023 (Miss. 1979).

  112. Brandon L. Garrett, Wealth, Equal Protection, and Due Process, 61 Wm. & Mary L. Rev. 397, 425 (2019). See generally id., for extended discussion of composite Bearden-type claims and relevant case law.

  113. Bearden, 461 U.S. at 660, 663.

  114. Griffin v. Illinois, 315 U.S. 12, 13, 19 (1956); Tate v. Short, 401 U.S. 395, 396–97, 400 (1971); Williams v. Illinois, 399 U.S. 235, 236, 244 (1970).

  115. Bearden, 461 U.S. at 660–61.

  116. Id. at 663, 665–67 (“Due process and equal protection principles converge in the Court’s analysis in these cases.”); see also Garrett, supra note 112, at 407, 411, 414 (discussing composite equal protection and due process claims).

  117. Bearden, 461 U.S. at 666–67 (quoting Williams, 399 U.S. at 260 (Harlan, J., concurring)).

  118. Id. at 672.

  119. Buffin v. City & County of San Francisco, No. 15-CV-04959, 2018 WL 424362, at *9 (N.D. Cal. Jan. 16, 2018).

  120. Bearden, 461 U.S. at 672.

  121. Pierce v. City of Velda City, No. 4:15-CV-570, 2015 WL 10013006, at *3 (E.D. Mo. June 3, 2015) (issuing declaratory judgment and finding that “[n]o person may, consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, be held in custody after an arrest because the person is too poor to post a monetary bond.”); Cooper v. City of Dothan, No. 1:15-CV-425, 2015 WL 10013003, at *1–2 (M.D. Ala. June 18, 2015) (granting a temporary restraining order in plaintiffs’ favor on the basis of equal protection and due process claim); Jones v. City of Clanton, No. 2:15-CV-34, 2015 WL 5387219, at *4 (M.D. Ala. Sep. 14, 2015) (inter alia, granting declaratory and injunctive relief on basis of a Bearden claim); Thompson v. Moss Point, No. 1:15CV182, 2015 WL 10322003, at *1 (S.D. Miss. Nov. 6, 2015) (granting declaratory judgment on basis of a Bearden claim).

  122. Robert William Gordon Wright, Pretrial Detention of Indigents: A Standard Analysis of Due Process and Equal Protection Claims, 54 Ga. L. Rev. 707, 722 (2020).

  123. Bearden, 461 U.S. at 466–67; Odonnell v. Harris County, 227 F. Supp. 3d 706, 729–30 (S.D. Tex. 2016). Pursuant to the Supreme Court’s equal protection doctrine, the degree of scrutiny courts should apply turns on whether the challenged law relies on a “suspect” classification or implicates a “fundamental” right. E.g., United States v. Skrmetti, 145 S. Ct. 1816, 1828 (2025).

  124. Odonnell, 227 F. Supp. 3d at 729–30 (“The ‘careful inquiry’ the Court requires in this type of case calls for a more demanding review.” (quoting Bearden, 461 U.S. at 666)); ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1135 (S.D. Tex. 2017) (“Bearden made finding the least-restrictive alternative a constitutional requirement in cases in which inability to pay a fine results in imprisonment.”); see Funk, supra note 3, at 1113–20.

  125. ODonnell v. Harris County, 892 F.3d 147, 162 (5th Cir. 2018), overruled by Daves I, 22 F.4th 522 (5th Cir. 2022), and Daves II, 64 F.4th 616 (5th Cir. 2023).

  126. Id. at 161–62 (quoting S.A. Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973)).

  127. San Antonio, 411 U.S. at 17, 20, 29 (noting that the Court had “never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny”). This “absolute deprivation” exception is how the San Antonio Court reconciled its holding with the Tate-Williams line of cases that later culminated in Bearden. Id. at 20–22.

  128. ODonnell, 892 F.3d at 162–63.

  129. Walker v. City of Calhoun, 901 F.3d 1245, 1245 (11th Cir. 2018).

  130. The divergence was all the more marked because both courts were bound by the same central circuit precedent, Pugh v. Rainwater, 572 F.2d 1053, 1058 (5th Cir. 1978), which was issued before the Fifth and Eleventh Circuit divided. Walker, 901 F.3d at 1262, 1258.

  131. Walker, 901 F.3d at 1251–53.

  132. See Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 733 (2017) (finding that in data reflecting the years 2003–2008, “about 53% of misdemeanor defendants in Harris County are detained for more than seven days”).

  133. Walker, 901 F.3d at 1269, 1279.

  134. Id. at 1261–62 (citing S.A. Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973)).

  135. Id. at 1260–63 (citing San Antonio, 411 U.S. 1 (1973)). The circuit court found that two-day imprisonment did not infringe any “fundamental” right, which would have been a separate trigger for heighted scrutiny in due process analysis. Id. at 1262–63. The court reasoned that, although freedom from imprisonment “lies at the heart of the liberty that [the Due Process] Clause protects,” Zadvydas v. Davis, 533 U.S. 678, 690 (2001), the right at issue was the right to pretrial liberty, Walker, 901 F.3d at 1262–63.

  136. Walker, 901 F.3d at 1265.

  137. Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks omitted)).

  138. Id. at 1266. In a vigorous partial dissent, Justice Martin argued that subjecting indigent arrestees only to a two-day imprisonment was more than sufficient to trigger heightened review, and she took the majority to task for ignoring Bearden’s explicit instructions in favor of a loose due process analysis. Id. at 1272–78 (Martin, J., concurring in part and dissenting in part).

  139. Odonnell v. Harris County, 227 F. Supp. 3d 706, 730 (S.D. Tex. 2016).

  140. Schultz v. Alabama, 42 F.4th 1298, 1312, 1324, (11th Cir. 2022).

  141. Walker, 901 F.3d at 1261–62 (citing S.A. Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973)).

  142. Schultz, 42 F.4th at 1324–25, 1327, 1334.

  143. Id. at 1326–27.

  144. Edwards v. Cofield, No. 3:17-CV-321, 2018 WL 4101511, at *1–2 (M.D. Ala. Aug. 28, 2018); Hodges v. Hoffman, No. 8:22-cv-163, 2022 WL 992260, at *3 (M.D. Fla. Apr. 1, 2022).

  145. See Wade v. Lee County, No. 1:21-CV-98, 2023 WL 3276435, at *13 (N.D. Miss. May 5, 2023) (reasoning that ODonnell’s merits analysis is still persuasive authority). Nor did the Fifth Circuit repudiate the merits analysis of the district court in Daves itself, which had deployed heightened scrutiny according to the then-clearly-binding precedent of ODonnell. Daves v. Dallas County, 341 F. Supp. 3d 688, 695 (N.D. Tex. Sep. 20, 2018).

  146. Daves II, 64 F.4th 616, 620.

  147. E.g., Wade, 2023 WL 3276435, at *13.

  148. Feltz v. Regalado, 751 F. Supp. 3d 1198, 1242 (N.D. Okla. 2024).

  149. Id. at 1209.

  150. Id. at 1242.

  151. Id. at 1243–46. On April 3, 2024, the court issued an injunction to protect plaintiffs’ due process and equal protection rights. An appeal is likely.

  152. Valdez-Jimenez v. Eighth Jud. Dist. Ct., 460 P.3d 976, 984–85 (Nev. 2020).

  153. In re Humphrey, 482 P.3d 1008, 1017, 1019 (Cal. 2021). Humphrey relied on state constitutional as well as federal constitutional equal protection and substantive due process grounds.

  154. Valdez-Jimenez, 630 P.3d at 985; Humphrey, 482 P.3d at 1017.

  155. Does San Antonio condition Bearden, such that Bearden’s “no-alternative-means” test only applies if there’s an “absolute deprivation” of a criminal justice right or benefit? If so, is “liberty” or “pretrial liberty” the relevant right, and what counts as an “absolute deprivation”? Or does the “no-alternative-measures” test apply whenever a criminal justice outcome or right is explicitly conditioned on ability to pay? Is Bearden a form of heightened scrutiny, a form of procedural due process, or a sui generis framework?

  156. It remains true, as it was in 2019, that “no federal court that has reached the merits under heightened scrutiny has yet sustained these [formulaic cash-bail] systems against challenges demanding extensive remediation by the trial courts.” Funk, supra note 3, at 1114; cf. Liza Batkin, Wealth-Based Equal Process and Cash Bail, 96 N.Y.U. L. Rev. 1549, 1549 (2021) (arguing that “[c]ourts must apply heightened scrutiny when the government, by putting a price on a fundamental right that only the government can fulfill, entirely deprives an indigent person of that right”).

  157. Bearden v. Georgia, 461 U.S. 660, 664 (1983) (“This Court has long been sensitive to the treatment of indigents in our criminal justice system.”).

  158. On this interpretation, Bearden revises the exception to the general rule that claims of wealth discrimination trigger only rational basis review. It clarifies that the important feature of its predecessor cases (Griffin, Tate, and Williams) was not that they involved an “absolute deprivation” of any old right or benefit, but rather that they explicitly tethered an important right or benefit in criminal proceedings (a transcript necessary for appeal, liberty) to payment of a specified sum. Such direct and conscious wealth-based distribution of rights and liberty in criminal proceedings offends our foundational societal commitment to ensure “equal justice”. Id. at 664–66.

  159. Id. at 665–66.

  160. Id. at 664–66. Indeed, the parties in Bearden “argued the question primarily in terms of equal protection, and debate[d] vigorously whether strict scrutiny or rational basis is the appropriate standard of review.” Id. at 665.

  161. See, e.g., id. at 666 (framing the due process question as “whether and when it is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is unable to pay the fine”); id. at 668 (noting that the rule of Tate and Williams imposes a “substantive limitation” on when courts may imprison a convicted defendant for failure to pay a fine); id. at 672–73 (holding that imprisoning a probationer who cannot pay “would be contrary to the fundamental fairness required by the Fourteenth Amendment”). These are the terms of substantive, not procedural, due process. Admittedly, the Supreme Court itself has rarely been clear on the conceptual distinction and has sometimes characterized substantive complaints or requirements as procedural or combined the two. But see, e.g., Foucha v. Louisiana, 504 U.S. 71, 72, 82 (1992) (noting that “the substantive component of the Due Process Clause bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them” and holding that Louisiana had no substantively legitimate ground to continue Foucha’s civil commitment); Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 5, 8 (2003) (where plaintiffs challenged sex offender registration triggered automatically by conviction, and argued that procedural due process entitled them to a hearing to prove non-dangerousness, Court held that “States are not barred by principles of ‘procedural due process’” from tying registration to conviction alone, and that plaintiffs’ claim sounded instead in substantive due process).

  162. E.g., ODonnell v. Harris County, 892 F.3d 147, 152, 157 (5th Cir. 2018), overruled by Daves I, 22 F.4th 522 (5th Cir. 2022), and Daves II, 64 F.4th 616 (5th Cir. 2023); Walker v. City of Calhoun, 901 F.3d 1245, 1265 (11th Cir. 2018).

  163. In re Humphrey, 482 P.3d 1008, 1018 (Cal. 2021).

  164. Plyler v. Doe, 457 U.S. 202, 216–18 (1982). Equal protection claims do embed the substantive judgment that a given classification is irrelevant to legitimate regulatory interests in a given context. See Funk, supra note 3, at 1109–10 (noting that equal protection claims involve substantive scrutiny); Peter Westen, The Empty Idea of Equality, 95 Harv. L. Rev 537, 559–60 (1982).

  165. S.A. Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 23, 29 (1973).

  166. Bearden, 461 U.S. at 672–73.

  167. Id. at 664.

  168. Id. at 674.

  169. Id. at 672.

  170. Id. at 674. Accord Wright, supra note 122, at 722 (arguing that the four-factor Bearden test can and should serve as a standard analysis for Bearden-type claims in bail suits).

  171. Pretrial detention is purportedly regulatory rather than punitive, so it is subject to the same substantive-due-process framework as other forms of regulatory detention. See, e.g., United States v. Salerno, 481 U.S. 739, 749 (1987); United States v. Montalvo-Murillo, 495 U.S. 711, 719–20 (1990) (citing Salerno, 481 U.S. 739 (1987)) (“We have sustained the Bail Reform Act of 1984 as an appropriate regulatory device to assure the safety of persons in the community and to protect against the risk of flight.”). In another context, the Court deemed regulatory detention for dangerousness subject to strict scrutiny. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (civil commitment of the mentally ill and dangerous). Substantive due process also protects against pretrial detention so extreme in its conditions or in length that the courts are forced to admit it is punitive. See, e.g., Bell v. Wolfish, 441 U.S. 520, 538 (1979); Salerno, 481 U.S. at 746–47, 759; United States v. Nero, 854 F. App’x 14, 16 (6th Cir. 2021); United States v. Torres, 955 F.3d 695, 708 (9th Cir. 2021) (warning that at some point excessively prolonged detention will be punitive and violate the Due Process Clause).

  172. Salerno, 481 U.S. at 739, 746, 752. See Funk, supra note 3, at 1105–07, for further discussion of this case in the bail litigation context.

  173. Salerno, 481 U.S. at 741.

  174. Id. at 646–47, 752.

  175. Id. at 646–47.

  176. Id. at 746.

  177. Id.

  178. Id. at 747.

  179. Id. at 749–50; see also id. at 755 (noting that pretrial detention must remain a “carefully limited exception” to the norm of liberty).

  180. Feltz v. Regalado, 751 F. Supp. 3d 1198, 1229 (N.D. Okla. 2024) (noting that “substantive due process has not gotten much traction in the Supreme Court or in the lower courts in cases involving indigence-based claims asserted by pretrial detainees.”); id. (concluding that “the substantive due process claim is a nonstarter” (quoting Shultz v. Alabama, 42 F.4d 1298, 1331 (11th Cir. 2022))).

  181. See, e.g., id. at 1129 (reasoning that the doctrine is inapplicable “where the complaining parties claim that, because of their indigence, they are coming out on the short end procedurally in the initial stage of the criminal process and that this maltreatment is untenable both as a matter of procedural due process” and of equal protection). As discussed above, this is a misconstrual of the complaint. See Funk, supra note 3, at 1109 (“If only procedural due process is in view, a jurisdiction could in theory continue to jail three-quarters of its pretrial population on the basis of wealth, so long as timely hearings and nominal consideration of evidence is provided.”).

  182. E.g., Daves v. Dallas County, 341 F. Supp. 3d 688, 696 (N.D. Tex. 2018) (“The moment that Plaintiffs transition from advocating for reformed procedures to advocating for the abolition of or lessening of monetary bail, they must traverse through the Eighth Amendment [rather than substantive due process].”); Walker v. City of Calhoun, 901 F.3d 1245, 1259, 1265 (11th Cir. 2018) (eschewing substantive due process analysis in favor of equal protection and procedural due process).

  183. E.g., Walker, 901 F.3d at 1262–63.

  184. Schultz, 42 F.4th at 1332 (“In Walker, this Court analyzed Salerno and concluded that it was a procedural due process case, not a substantive due process case.”); Walker, 901 F.3d at 1262 (opining that “the Salerno Court’s analysis was much closer to a relatively lenient procedural due process analysis than it was any form of heightened scrutiny [pursuant to substantive due process.]”).

  185. Salerno’s challenge, moreover, was very clearly to the government’s substantive right to detain people pretrial on grounds of dangerousness, and the content that government was required to prove (dangerousness), in addition to the process by which the statute authored such detention. United States v. Salerno, 481 U.S. 739, 746, 748–49, 751–52 (1987). In a later case, the Court reiterated that it had “upheld the substantive right to detain based upon the Government’s meeting the burden required by the statute.” United States v. Montalvo-Murillo, 495 U.S. 711, 720 (1990) (emphasis added).

  186. Funk, supra note 3, at 1107–08; Lopez-Valenzuela v. Arpaio,770 F.3d 772, 785 n.7, 789, 791 (9th Cir. 2014) (en banc) (holding that an Arizona state-constitutional amendment categorically denying bail to certain categories of noncitizen defendants failed heightened scrutiny and so violated substantive due process).

  187. Buffin v. City & County of San Francisco, No. 15-cv-04959, 2018 WL 424362, at *6 (N.D. Cal. Jan. 16, 2018); Welchen v. Bonta, 630 F. Supp. 3d 1290, 1299 (E.D. Cal. 2022).

  188. Buffin, 2019 WL 1017537, at *23; Welchen, 630 F. Supp. 3d at 1305.

  189. In re Humphrey, 482 P.3d 1008, 1018 (Cal. 2021).

  190. Valdez-Jimenez v. Eighth Jud. Dist. Ct., 460 P.3d 976, 984 (Nev. 2020).

  191. See Commonwealth v. Talley, 265 A.3d 485, 522–23 (Pa. 2021). The Arizona Supreme Court was an early mover on this front, in Simpson v. Miller, 387 P.3d 1270, 1277 (Ariz. 2017), followed by State v. Wein, 417 P.3d 787, 791 (Ariz. 2018).

  192. A recent circuit case addressing a substantive due process claim in a bail suit is Holland v. Rosen. Holland v. Rosen, 895 F.3d 272, 293 (3d Cir. 2018). There, the claimant, a person of some resources, had been assigned to home confinement as an alternative to detention and sought access to money bail instead. Id. at 288. The Third Circuit rejected his substantive due process claim on the ground that there is no fundamental right to money bail. Id. at 290–91. A more colorable claim might argue that home confinement also infringes the fundamental right to physical liberty and violates substantive due process where less-restrictive alternatives meet the state’s interests.

  193. Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976).

  194. Medina v. California, 505 U.S. 437, 445–46 (1992).

  195. Id. at 446 (quoting Patterson v. New York, 432 US. 197, 202 (1977)).

  196. E.g., United States v. Salerno, 481 U.S. 739, 746; see also Garrett, supra note 112, at 408–09, 409 n.52 (discussing examples of the Mathews standard’s application by the Court in administrative proceedings and a civil detention). One interpretation of the precedent is that Medina governs challenges to trial process, whereas Mathews remains the controlling test elsewhere. Another possibility is that Medina governs challenges to laws duly enacted by legislatures, whereas Mathews controls challenges to local practice or regulations not required by statute.

  197. Funk, supra note 3, at 1107.

  198. Id. at 1106–09.

  199. Caliste v. Cantrell, 329 F. Supp. 3d 296, 314 (E.D. La. 2018), aff’d, 937 F.3d 525 (5th Cir. 2019) (holding that counsel is required at a bail hearing); Valdez-Jimenez v. Eighth Jud. Dist. Ct., 460 P.3d 976, 987 (Nev. 2020) (holding that adversarial hearing is required for continued detention on an unaffordable bail); see generally Final Order Granting Declaratory and Injunctive Relief, Feltz v. Regalado, 751 F. Supp. 3d 1198 (N.D. Okla. Jan. 12, 2026) (No. 18-cv-0298) (explaining that a conclusory finding regarding ability to pay is insufficient to justify a secured bond).

  200. E.g., ODonnell v. Harris County, 892 F.3d 147, 160 (5th Cir. 2018) (holding verbal statement of reasons to be sufficient), overruled by Daves I, 22 F.4th 522 (5th Cir. 2022), and Daves II, 64 F.4th 616 (5th Cir. 2023); Valdez-Jimenez, 460 P.3d at 987 (holding “[t]ranscribed oral findings” to be sufficient); Final Order Granting Declaratory and Injunctive Relief, supra note 199, at 3 (requiring transcribable audio recordings).

  201. In re Humphrey, 432 P.3d 1008, 1013 (Cal. 2021); Caliste, 329 F. Supp. 3d at 313.

  202. E.g., Hodges v. Hoffman, No. 8:22-cv-163, 2022 WL 992260, at *8–9 (M.D. Fla. Apr. 1, 2022); Feltz v. Regalado, 751 F. Supp. 3d 1198, 1245 (N.D. Okla. 2024) (expressing skepticism of a “clear and convincing” evidence requirement); Final Order Granting Declaratory and Injunctive Relief, supra note 199, at 13, 16 (requiring a finding of necessity for an unaffordable cash bond without specifying a standard of proof).

  203. Mitchell v. Doherty, 37 F.4th 1277, 1289 (7th Cir. 2022).

  204. E.g., Valdez-Jimenez, 460 P.3d at 985.

  205. Feltz, 751 F. Supp. 3d at 1211, 1235.

  206. Funk, supra note 3, at 1102–1103, 1106.

  207. Colin Starger & Michael Bullock, Legitimacy, Authority, and the Right to Affordable Bail, 26 Wm. & Mary Bill Rts. J. 589, 604 (2018); see also, e.g., Walker, 901 F.3d at 1258 (“[W]e have implicitly held that bail is not excessive under the Eighth Amendment merely because it is unaffordable.”).

  208. E.g., United States v. James, 674 F.2d 886, 891 (11th Cir. 1982) (“As long as the primary reason in setting bond is to produce the defendant’s presence, the final amount, type, and other conditions of release are within the sound discretion of the releasing authority, and we may review only for an abuse of that discretion.”).

  209. Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. 1981) (“An injunction against excessive bail, no matter how carefully limited, would require a federal court to reevaluate de novo each challenged bail decision.”); Gardner v. Luckey, 500 F.2d 712, 715 (5th Cir. 1974).

  210. Starger & Bullock, supra note 207, at 613.

  211. Shultz v. Alabama, 42 F.4th 1298, 1324 (11th Cir. 2022).

  212. Stack v. Boyle, 342 U.S. 1, 5 & n.3 (1951) (asserting that “the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant,” and noting that the federal rules codified the “traditional standards,” including consideration of ability to pay).

  213. Kellen R. Funk & Sandra G. Mayson, Bail at the Founding, 137 Harv. L. Rev. 1816, 1837–45, 1893–94 (2024).

  214. Cf. Jerry C. Edwards, Using State Constitutions to End Wealth-Based Detention: Florida as a Case Study, 76 Fla. L. Rev. F. 28, 28, 49 (2024) (“This Essay seeks to move the conversation in a new direction—looking to state constitutions for inspiration. Using Florida as a case study, this Essay lays out originalist arguments for why wealth-based detention violates the Florida Constitution—specifically, Floridians’ rights to pretrial release and due process.”).