CINCINNATI (CN) – A Tennessee county argued Tuesday before the Sixth Circuit to overturn an injunction requiring it to provide bail hearings for indigent defendants who would otherwise be unable to secure their release from jail after being arrested.
A class of arrestees who could not afford bail or bond payments sued Giles County and several private probation companies in federal court last year, claiming their practice of setting bail amounts without hearings violated criminal defendants’ due process and equal protection rights.
The lawsuit called the county’s process “wealth-based detention,” and argued it allows several for-profit probation companies “to transform the county’s misdemeanor probation system into a machine for generating their own profit on the backs of Giles County’s most impoverished residents.”
U.S. District Judge William Campbell Jr., appointed by President Donald Trump, found the plaintiffs were likely to succeed on the merits of their claims and granted the class motion for a preliminary injunction in February.
The injunction prevents the detainment of someone arrested on misdemeanor probation violations “based on a secured financial condition of release” until after the person has been granted a hearing to determine “the arrestee’s ability to pay, alternatives to secured bail, and whether pre-revocation detention is necessary to meet a compelling governmental interest.”
In his opinion, Campbell cited a lack of evidence that the current system of imposing bail without a hearing furthers any governmental interest.
“Detention of these arrestees, who are otherwise deemed eligible for release, solely due to the inability to pay the secured bail amount on the arrest warrant can result in loss of work, separation from family, undue pressure to plead guilty, and other negative consequences,” the judge wrote.
Giles County and its sheriff’s office appealed the decision, and attorney Cassandra Crane argued on their behalf Tuesday before a Sixth Circuit panel.
The attorney told the judges that the county and its sheriff cannot be held liable because they are simply enforcing orders handed down by judges.
She noted similar cases are being litigated across the country, and said that “typically, the entity setting the bail is also a party,” which in this case would be the judges who set bail for the indigent criminal defendants.
Crane also said that under a Monell theory of liability in civil rights claims, the entity being sued must be the one that created the policy at issue.
“The judges must be loving your position,” said U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee.
Crane reiterated several times in her arguments that her clients do not concede the bail practices used in Giles County are unconstitutional, only that there is no municipal liability because the sheriff is enforcing orders from a separate entity.
Attorney Elizabeth Rossi argued on behalf of the indigent probation violators and was peppered with questions from the panel about whether state defendants, including Tennessee’s attorney general, should have been named in the suit.
Rossi told the court state actors were not named because her clients are not challenging a state statute, but rather “the private probation system in Giles County.”
The attorney argued that when the Giles County Sheriff’s Office enforces unlawful orders – including refusing to release indigent detainees who cannot afford to pay bail – it acts on behalf of the county and is therefore subject to municipal liability.
Rossi also told the panel that the judges who set bail for her clients were not named in the suit because of the emergency nature of the relief they sought, at least in part because the U.S. Supreme Court has never recognized a right to seek declaratory relief against judges at the federal level.
In her rebuttal, Crane told the panel her clients cannot be enjoined by the preliminary injunction because there is no evidence in the record that any employees of the sheriff’s office knew the orders handed down by the courts were unlawful.
“The inability to pay bail,” she said, “is not the same as being indigent and in a protected class.”
U.S. Circuit Judges John Nalbandian and Chad Readler, both Trump appointees, rounded out the panel.
Rossi said in a statement after the hearing, “We think the district court got it right and we’re hopeful the Sixth Circuit will affirm so that people accused of misdemeanor probation violations won’t be jailed just because they can’t pay money bail.”
Crane was unable to be reached for comment.
No timetable has been set for the court’s decision.