Shannon Daves was arrested for a misdemeanor offense in Dallas County, Texas on January 17, 2018.[1] She was taken to the county jail and brought before a magistrate for a “hearing” to determine the amount of money bail she would be required to come up with to secure her release pending trial.[2] Daves’ hearing took place in a closed room inside the jail and was over in less than 60 seconds.[3] She was told that she could be released immediately if she paid the amount corresponding to her alleged offense in the county’s bail schedule – in this case $500 dollars.[4] Otherwise, she would be detained pending trial. No inquiry was made into her ability to pay or the risk that she would not later appear in court.[5] Because Ms. Daves could not come up with the cash, she remained in custody; and because she is transgender, she was kept in solitary confinement in the men’s unit according to jail policy.[6]

Texas law at the time did not require that Dallas County operate in this way – they could have released detainees on unsecured bond (meaning that they only have to pay if they do not appear for court), permitted release on nonfinancial conditions, or even issued citations for certain misdemeanors rather than initiating arrests.[7] The county instead used a bail schedule – a set of “guidelines” for fixing bail to which magistrates rigidly adhered.[8] Bail amounts for misdemeanor offenses ranged from $500 to $3,000 (or higher if the arrestee was on felony probation), and from $500 to $1,000,000 for felony offenses.[9] This essentially meant that in Dallas County in 2018 a presumptively innocent arrestee’s freedom pending trial was dictated almost entirely by their financial means.

Ms. Daves, along with five other named plaintiffs, filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Northern District of Texas on behalf of themselves and all other similarly situated individuals.[10] They asserted in their complaint that the defendants had violated their rights under the Fourteenth Amendment’s Equal Protection and Due Process Clauses by “jailing them because they cannot afford a monetary payment.”[11] The district court granted relief in the form of a preliminary injunction, requiring that Dallas County institute bail procedures that “protect the rights currently in jeopardy” by providing “notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decision-maker.”[12]

An en banc panel of the Fifth Circuit, however, vacated the injunction.[13] It determined that the case “should never have been brought in federal court,” because “a string of consistent Supreme Court authority commencing with Younger v. Harris, requires federal courts to abstain from revising state bail bond procedures on behalf of those being criminally prosecuted, when state procedures allow the accused adequate opportunities to raise their federal claims.”[14]

The Fifth Circuit’s decision relied on a doctrine called Younger abstention, which largely prevents federal courts from intervening in ongoing state criminal proceedings even where there are potential constitutional claims involved.[15] Younger abstention has been particularly troublesome to proponents of bail reform, because, when invoked in cases like Daves v. Dallas County, it leaves pretrial detainees with limited options to vindicate their constitutional rights. This, however, is not the necessary outcome of Younger.

Younger v. Harris, the case for which the doctrine is named, was decided in 1971 and was justified mainly on federalism grounds.[16] Justice William O. Douglas’s critique of the majority in dissent remains the most popular critique of the doctrine to this day: that it undermines the ability of federal courts to police constitutional rights violations in the states.[17] The decision has since evolved and expanded into the current formulation of the Younger abstention doctrine.

The threshold requirements for abstention are (1) that federal intervention would interfere with an ongoing state judicial proceeding, (2) that the proceedings implicate important state interests, and (3) that there is an adequate opportunity in the state proceedings to raise constitutional challenges.[18] If these requirements are not met, the Court cannot decline to exercise its otherwise valid jurisdiction.[19] Even if the court finds that the requirements are met, however, it can still hear the case if it determines that one of the exceptions applies. First, courts need not abstain if the facts suggest that the state is engaging in bad faith prosecution or harassment.[20] Second, abstention may be unwarranted where the state law at issue is “flagrantly and patently” unconstitutional.[21] Lastly, the Younger court recognized that there may be “[o]ther unusual situations calling for federal intervention,” “where the danger of irreparable loss is both great and immediate.”[22]

The most important Younger decision from the past 20 years is Sprint Communications, Inc., v. Jacobs.[23] Decided in 2013, Sprint seemed an attempt to cabin the expansion of Younger, and keep it from swallowing more and more cases.[24] Justice Ruth Bader Ginsburg, author of the unanimous opinion, began by highlighting the “‘virtually unflagging’” obligation of the federal courts to hear and decide cases over which they have jurisdiction.[25] Federal courts, she noted, “have ‘no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.’”[26]

The Sprint Court warned against the application of Younger too far outside the criminal context in which it was originally conceived. Justice Ginsburg cautioned that “[d]ivorced from their quasi-criminal context, the three Middlesex conditions would extend Younger to virtually all parallel state and federal proceedings.”[27] Such a conception of Younger would be “irreconcilable” with the general mandate that abstention be the “‘exception, not the rule.’”[28] Sprint thus provided an important clarification to all federal courts that their application of Younger should remain within the quasi-criminal context, and should not excessively intrude upon the obligation to hear cases.

The practical concerns underlying Younger abstention are not unfounded. Perhaps if criminal defendants could invoke the power of the federal courts at any time during their proceedings, the state criminal system would be damaged beyond repair. But, as the Daves case demonstrates, the doctrine has been invoked to block potentially meritorious constitutional claims from ever seeing the light of day. However, the doctrine need not be eliminated or even overhauled in order to allow bail-related claims such as those in Daves to be heard in federal court. The Supreme Court’s decision in Sprint was a clear directive to the federal courts to limit the reach of Younger and to preserve the federal forum in all but the most “exceptional circumstances.”[29] Judge Leslie Southwick’s concurrence in Daves disagreed with the majority as to Younger in large part because he felt that “a clear purpose of Sprint was to stop abstention proliferation.”[30] “Certainly,” he opined, “Sprint did not announce that Younger was dying. Instead, the Court was saying Younger had gotten older; its reach had fully matured; it should not be given more tasks.”[31]

Read in light of that understanding I see three possible avenues to ensure that, as the Sprint court commanded, “abstention from the exercise of federal jurisdiction is the ‘exception, not the rule,’” at least in the context of bail litigation.[32] Each forms a justification available to federal courts for hearing and deciding bail cases even if Younger is raised.

First, as a categorical matter, bail litigation should be considered wholly outside of the “quasi-criminal context” to which Younger applies.[33] This, I think, would be most consistent with the original decision in Younger v. Harris, and most faithful to the commands of Sprint. Judge Southwick’s concurrence in Daves raised this point: that “the validity of equal protection claims about bail would not affect the validity of or intrude into the criminal prosecution.”[34] The Eleventh and Ninth Circuits have also endorsed this position in recent cases determining that bail reform claims are distinct from underlying criminal prosecutions.[35]

Failing that, courts could determine that pretrial detainees have no adequate opportunity to have their claims heard in state court, such that the threshold requirements for Younger abstention are not met. This argument was advanced by the Daves plaintiffs in their petition for certiorari.[36] They contended that “Dallas County does not provide arrested individuals a timely opportunity to raise federal constitutional challenges on pretrial detention.”[37] In my view, the Younger decision itself supports this position. The Court there specified that federal courts could intervene in ongoing state criminal prosecutions where the would-be defendants risked irreparable injury “‘both great and immediate.’”[38] Immediacy is a function of time, therefore an analysis of whether a plaintiff faces “immediate” injury necessarily turns on the timeliness of available relief. And, as the petitioners in Daves pointed out, the injury facing pre-trial detainees accrues on an extraordinarily short timeline: even a few days of missed work or an inability to care for young children can be “catastrophic.”[39]

Finally, as a last resort, courts could invoke the “extraordinary circumstances” exception to Younger, and hold that the injustices imposed by unconstitutional pretrial detention are of the kind that allow intervention even where Younger would otherwise apply. The Ninth Circuit referenced this exception in a recent case.[40] However, the Younger exceptions have been so rarely applied by the Supreme Court that it is hard to confidently ground a reform movement in their use. Further, it is not entirely clear how the extraordinary circumstances exception differs from the adequacy prong of the threshold requirements described above. Nevertheless, if a federal court does find itself asking whether unconstitutional pretrial detention of presumptively innocent indigent people constitutes the kind of extraordinary circumstance that should allow for federal court intervention, I think the answer is clearly yes.

The Supreme Court denied cert in Daves, so the decision of the Fifth Circuit relying on Younger abstention remains good law. But if given the opportunity in a future case, the Supreme Court should build on the wisdom of Sprint and confine the application of Younger to instances of true undue influence on state court criminal prosecutions. Bail litigation does not constitute such an instance, and the constitutional claims of Ms. Daves and others like her should be allowed to be heard in federal court.

 

[1] First Amended Complaint at 2, Daves v. Dallas Cnty., 64 F.4th 616 (5th Cir. 2023) (No. 3:18-cv-00154) [Daves Complaint].

[2] Id. at 10.

[3] Id.; see also Mustafa Z. Mirza, In Dallas County, Bail is Set in Secret – and Often in Seconds, Tex. Trib. (Sept. 5, 2018), https://www.texastribune.org/2018/09/05/Dallas-County-Bail-Machine/.

[4] Daves Complaint at 11. See also Exhibit 7 – Dallas County Criminal Courts Revised Misdemeanor Bond Guidelines at 1, Daves v. Dallas Cnty., 64 F.4th 616 (5th Cir. 2023) (No. 3:18-cv-00154) [Misdemeanor Bail Schedule].

[5] Daves Complaint at 10.

[6] Id. at 11.

[7] Id. at 14.

[8] See generally Misdemeanor Bail Schedule.

[9] See id.; Exhibit 8 – Felony bail schedule at 1, Daves v. Dallas Cnty., 64 F.4th 616 (5th Cir. 2023) (No. 3:18-cv-00154).

[10] See Daves Complaint at 6.

[11] Id. at 59. They also claimed that defendants had violated their First and Fourteenth Amendment rights by denying public access to bail proceedings.

[12] Daves v. Dallas Cnty., 341 F. Supp. 3d 688, 698 (N.D. Tex. 2018) (subsequent history omitted) (quoting ODonnell v. Harris County, 251 F. Supp. 3d (S.D. Tex., 2017), which fashioned similar relief for plaintiffs in a different Texas county).

[13] Daves v. Dallas Cnty., 64 F.4th 616, 620 (5th Cir. 2023).

[14] Id. at 620.

[15] Id.

[16] See Younger v. Harris, 401 U.S. 37, 44 (1971).

[17] Id. at 62 (Douglas, J., dissenting).

[18] See id.; see also Daves, 64 F.4th at 625.

[19] Id.

[20] Younger, 401 U.S. at 49-50.

[21] Id. at 53-54 (citing Watson v. Buck, 313 U.S. 387, 402 (1941)).

[22] Id. at 45, 54.

[23] Sprint Communications, Inc. v. Jacobs, 571 U.S. 69 (2013).

[24] Id. at 81.

[25] Id. at 77 (citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).

[26] Id. (citing Cohens v. Virginia, 19 U.S. 264, 404 (1821)). Cohens continues on even more forcefully: “the one or the other would be treason to the constitution.” 19 U.S. at 404.

[27] Sprint, 571 U.S. at 81.

[28] Id. at 81-82 (citing Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236 (1984)).

[29] Id. at 78.

[30] Daves, 64 F.4th at 639 (Southwick, J., concurring in the judgment). Judge Southwick concurred with the majority on the mootness question that is not at issue here but disagreed with the Younger analysis.

[31] Id.

[32] Sprint, 571 U.S. at 81-82 (quoting Midkiff, 467 U.S. at 236).

[33] Id. at 81.

[34] Daves, 64 F.4th at 638-39 (Southwick, J., concurring).

[35] See Walker v. City of Calhoun, 901 F.3d 1245, 1254 (2018); Arevalo v. Hennessey, 882 F.3d 763, 766 (2018). See also Alezeh Rauf, Abstaining from Abstention: Why Younger Abstention Does Not Apply in 42 U.S.C. Bail Litigation, U. Penn. L. Rev., 171:535 (2023) (arguing that pretrial bail procedures are not pending criminal prosecutions).

[36] See generally Petition for Writ of Certiorari, Daves v. Dallas Cnty., No. 23-97 (Jul. 31, 2023) [Daves Cert Petition].

[37] Id. at 23.

[38] Younger, 401 U.S. at 46 (quoting Fenner v. Boykin, 271 U.S. 240, 243 (1926)).

[39] Dave Cert Petition at 21.

[40] See Arevalo, 882 F.3d at 767.