Pugh v. Rainwater, 72-1223

• Decision Date: 22 August 1977
• Docket Number: No. 72-1223,72-1223
• Citation: 557 F.2d 1189
• Parties: Robert PUGH and Nathaniel Henderson et al., Plaintiffs-Appellants, v. James RAINWATER et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1189

557 F.2d 1189

Robert PUGH and Nathaniel Henderson et al., Plaintiffs-Appellants, v. James RAINWATER et al., Defendants-Appellees.

No. 72-1223.

United States Court of Appeals Fifth Circuit.

Aug. 22, 1977.

Rehearing En Banc Granted Oct. 18, 1977. See 562 F.2d 362.

Phillip A. Hubbart, Public Defender, Bennett H. Brummer, Asst. Public Defender, Eleventh Judicial Circuit of Fla., Bruce S. Rogow, Miami, Fla., for plaintiffs-appellants.

Peter Nimkoff, Pearson & Josefsberg, Lewis M. Jepeway, Jr., Miami, Fla., amicus curiae, for Dade County Bar Assn.

Duke Winsor, Legal Unit, Public Safety Dept., James R. Jorgenson, Stuart Simon, County Atty., Alan T. Dimond, Asst. County Atty., Miami, Fla., for Purdy.

Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Fla., for Sutton, Rainwater, Ferguson, Adair, Snowden, and Berkman.

Frank Miles, City Atty., Hialeah, Fla., for Maynard.

Aaron Foosaner, Miami Beach, Fla., for Perry.

Joseph Pardo, Miami, Fla., for Segall.

Jack Blumenfeld, Milton Robbins, Asst. State's Atty., Miami, Fla., for Gerstein.

Joseph A. Wanick, City Atty., and Henry Edgar, Asst. City Atty., Miami Beach, Fla., for Pomerance.

Alan H. Rothstein, Larry J. Hirsch, Asst. City Atty., Montague Rosenberg, Asst. City Atty., Miami, Fla., for Bernard Garmire.

Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before GEWIN and SIMPSON, Circuit Judges. ^*

SIMPSON, Circuit Judge:

Since Florida's admission to the Union persons charged in the courts of that state with bailable offenses were entitled to obtain pretrial freedom by paying or having a surety pay to the court a sum of money refundable upon appearance at trial. Plaintiffs in the instant case, indigent pretrial detainees ¹ suing on behalf of themselves and others similarly situated, maintain that this traditional practice denies them equal protection of the law by conditioning their right to pretrial freedom on wealth-based criteria. We agree and hold that equal protection is not satisfied unless a judge is required to consider less financially onerous forms of pretrial release before he imposes money bail. ²

I. INTRODUCTION

We preface our opinion by noting that we are asked to resolve a small part of a much larger problem. ³ The practice of incarcerating indigent defendants prior to trial has sparked a flood of litigation in recent years. At first, advocates of bail reform brought their case before the state legislatures and Congress. Despite initial success, ⁴ the movement became stalled. ⁵ Perhaps as a result, vindication of the rights of pretrial detainees was increasingly sought in the federal courts. Almost without exception, the cases challenged the conditions, not the fact of pretrial detention. ⁶ The guiding principle in each case has been that prior to trial a defendant is presumed innocent; his incarceration during that period is permissible only to assure his appearance at trial, not to inflict punishment. See e.g. Miller v. Carson, 401 F.Supp. 835, 865-67 (S.D.Fla.1975). On this basis the courts have ordered sweeping changes ⁷ in the character and administration of state prisons to assure that pretrial detainees, most often those with little or no resources, are not punished before they are found guilty.

Today we decide a narrow issue: whether the imprisonment of an indigent prior to trial solely because he cannot afford to pay money bail violates his right to equal protection under the Fourteenth Amendment. At least therefore we do not face the unpleasant task of considering the number of roaches and rats, the extent of disease, lack of sanitary facilities and overcrowding tolerable under minimal constitutional safeguards. But we cannot escape awareness that conditions in many pretrial detention centers have shocked the conscience of courts across the nation. ⁸ Without unlimited state funds it is questionable whether any number of federal court orders can transform such pestholes into proper accommodations which do not punish those presumed to be innocent. ⁹ The issue before us boils down to whether an indigent, already denied the material comforts many of us take for granted, may be condemned to pretrial imprisonment under barbaric conditions for no other reason than his poverty.

II. PROCEDURAL HISTORY

This case comes to us after a complex procedural history.

In 1971, the plaintiffs brought a class action ¹⁰ against eight judges and other state officials including the State Attorney, Richard Gerstein, of Dade County, Florida, asking the federal district court to declare unconstitutional and to enjoin two practices of the defendants: (1) pretrial detention of arrestees without a judicial determination of probable cause, and (2) pretrial detention of indigent defendants solely because they were unable to post money bail as a condition of release. ¹¹ The trial court held for the plaintiffs on the first charge and for the defendants on the second. Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.Fla.1971). The State Attorney, Richard Gerstein, appealed on the probable cause question and the plaintiffs appealed on the bail question by separate appeals to this court. After oral argument, we remanded (by an unpublished order) for further findings on the probable cause issue and the district court reaffirmed its original ruling. Pugh v. Rainwater, 355 F.Supp. 1286 (S.D.Fla.1973). We then affirmed on the probable cause issue with modifications. Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973). After defendant Gerstein petitioned the Supreme Court for certiorari, we issued an order holding the bail issue in abeyance pending the Supreme Court's decision. The Court affirmed with modifications our holding on the probable cause issue. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

On November 11, 1975, we held oral arguments on the bail aspect of this case. At that time we suggested that counsel give the Supreme Court of Florida an opportunity to revise its rule of criminal procedure regarding pretrial release, thus obviating the need for action by this Court. The Florida Supreme Court had earlier rejected an amendment to its criminal rules that would have accommodated the plaintiffs' wishes. In re Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1972). On several occasions after the 1975 oral argument, plaintiffs' attorneys presented their case to the Florida Supreme Court and to appropriate committees of the integrated Florida Bar. Finally, the Florida Supreme Court promulgated a new rule concerning bail, The Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247 (Fla.1977) (Fla.R.Crim.P. 3.130), Note 11, supra, but declined to adopt the specific revisions requested by the plaintiffs.

III. THE ISSUE

It makes for clarity to delineate exactly what we are called upon to decide.

First, this case does not involve the right to bail per se. Regardless of whether there is a federal constitutional right to bail, cf. Carlson v. Landon, 342 U.S. 542, 72 S.Ct. 525, 96 L.Ed. 547 (1952), the plaintiffs here were entitled to bail by virtue of the Florida Constitution, Art. I, § 14, Note 11, supra. The State of Florida has chosen to guarantee bail to its citizens except in the case of crimes of the most serious nature. The issue before us is whether the state is invidiously discriminating in administering the right it has conferred.

Similarly, we are not called upon to decide whether any person is denied equal protection if he can make bail in some amount, but is unable to post the amount of bail set. We are confronted only with the question of the rights of indigents. As the Supreme Court has suggested in a different context, this distinction is not without constitutional significance:

The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit . . . (Earlier cases) do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. Sentencing judges may, and often do, consider the defendant's ability to pay, but in such circumstances they are guided by sound judicial discretion rather than by constitutional mandate. San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 20-22, 93 S.Ct. 1278, 1290-91, 36 L.Ed.2d 16, 35-36 (1973).

Clearly, all but the most trifling money bail would be meaningless to the indigent who lacks funds even to pay a bail bondsman. "(I)n the case of an indigent defendant, the fixing of bail in even a modest amount may have the practical effect of denying him release". Bandy v. United States, 81 S.Ct. 197, 198, 5 L.Ed.2d 218, 219 (1960) Douglas, J., sitting as Circuit Justice, ruling upon an application by a federal prisoner for release on personal recognizance pending appeal. The issue before us was framed concisely by Mr. Justice Douglas in Bandy :

(The) traditional right to freedom during trial and pending judicial review has to be squared with the possibility that the defendant may flee or hide himself. Bail is the device which we have borrowed to reconcile these conflicting interests. . . . It is assumed that the threat of forfeiture of one's goods will be an effective deterrent to the temptation to break the conditions of one's release.

But this theory is based on the assumption that a defendant has property. To continue to demand a substantial bond which the defendant is unable to secure raises considerable problems for the equal administration of the law . . . Can an indigent be denied freedom, where a wealthy man would not, because he does not happen to...