Pugh v. Rainwater

Citation572 F.2d 1053
Decision Date10 May 1978
Docket NumberNo. 72-1223,72-1223
PartiesRobert PUGH and Nathaniel Henderson et al., Plaintiffs-Appellants, v. James RAINWATER et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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

Peter L. Nimkoff, Daniel S. Pearson, Louis M. Jepeway, Jr., Miami, Fla., for Dade County Bar.

Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, Fla., Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, Fla., for Sutton, Rainwater, Ferguson, Adair, Snowden & Berkman.

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

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

Joseph Pardo, Miami, Fla., for Segall.

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

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

Alan H. Rothstein, Miami, Fla., for Bernard Garmire.

Larry J. Hirsch, Asst. City Atty., Montague Rosenberg, Asst. City. Atty., Miami, Fla., Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, Fla., for Bernard Garmire.

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

Before BROWN, Chief Judge, and GEWIN, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, SIMPSON, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges. *

VANCE, Circuit Judge:

The panel opinion, 557 F.2d 1189, traces the complicated history of this litigation. 1 Before the Court on rehearing en banc is plaintiffs' contention and the panel's holding that Florida Rule of Criminal Procedure 3.130(b)(4), does not pass constitutional muster. The rule was adopted by the Supreme Court of Florida while the case was pending in this Court. Effective on July 1, 1977 it established the pretrial bail system which is the present successor to the bail practices upheld by the Southern District of Florida in the judgment from which this appeal originally was taken.

The new rule 2 enumerates six forms of release which come within the definition of bail in non-capital cases. Number five is the posting of a bail bond with sureties or the deposit of cash in lieu thereof. It is urged that in the case of indigents, equal protection standards require a presumption against money bail and favoring the other enumerated forms of release. 3 The panel held that Florida's new rule is constitutionally defective by reason of its failure to express such a presumption. We disagree.

At the outset we accept the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible. Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). The punitive and heavily burdensome nature of pretrial confinement has been the subject of convincing commentary. 4 We view such deprivation of liberty of one who is accused but not convicted of crime as presenting a question having broader effects and constitutional implications than would appear from a rule stated solely for the protection of indigents.

Resolution of the problems concerning pretrial bail requires a delicate balancing of the vital interests of the state with those of the individual. Florida has a compelling interest in assuring the presence at trial of persons charged with crime. 5 Yet such individuals remain clothed with a presumption of innocence and with their constitutional guarantees intact. The Supreme Court speaking through Chief Justice Vinson observed in Stack, et al. v. Boyle, United States Marshal, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951):

"From the passage of the Judicial Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1) (18 U.S.C.A.) federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 1895, 156 U.S. 277, 285 (15 S.Ct. 450, 39 L.Ed. 424) (1895). Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

"The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex parte Milburn, 1835, 9 Pet. 704, 710 (9 L.Ed. 280) (1835). Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth Amendment. See United States v. Motlow, 10 F.2d 657 (1926, opinion by Mr. Justice Butler as Circuit Justice of the Seventh Circuit).

"Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. * * * "

In another context the rule was established in Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974), that:

"The demands of equal protection of the laws and of due process prohibit depriving pre-trial detainees of the rights of other citizens to a greater extent than necessary to assure appearance at trial and security of the jail; * * * "

See to the same effect: Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976); Duran v. Elrod, 542 F.2d 998 (7th Cir. 1976); United States, ex rel. Tyrrell v. Speaker, 535 F.2d 823 (3rd Cir. 1976). Such requirement as is necessary to provide reasonable assurance of the accused's presence at trial is constitutionally permissible. Any requirement in excess of that amount would be inherently punitive and run afoul of due process requirements.

The argument favoring a specified priority sequence for the various forms of release overlooks the fact that its impact may vary under varying circumstances. By definition an indigent is incapable of meeting any money bail requirement. Similarly disfavored is the non-indigent whose money bail is set in an amount higher than he can provide. Money bail, however, may not be the most burdensome requirement in all cases. A moneyed visitor in a city far removed from his home might find certain of the alternative forms of release infinitely more onerous. Utilization of a master bond schedule 6 provides speedy and convenient release for those who have no difficulty in meetings its requirements. The incarceration of those who cannot, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.

Rules under which personal liberty is to be deprived are limited by the constitutional guarantees of all, be they moneyed or indigent, befriended or friendless, employed or unemployed, resident or transient, of good reputation or bad.

The ultimate inquiry in each instance is what is necessary to reasonably assure defendant's presence at trial. Systems which incorporate a presumption favoring personal recognizance avoid much of the difficulty inherent in the entire subject area. A mechanical consideration of priorities among various other modes of release may conform to constitutional requirements. 7 We perceive no reason, however, why less explicit requirements may not be applied in an altogether constitutional manner. We have no doubt that in the case of an indigent, whose appearance at trial could reasonably be assured by one of the alternate forms of release, pretrial confinement for inability to post money bail would constitute imposition of an excessive restraint. We do not read the State of Florida's new rule to require such a result.

It is here that we reach a fundamental point of departure from the panel's decision. The Supreme Court of Florida twice declined to incorporate a presumption against money bail as a part of its rule. It is argued that we therefore should conclude that a contrary result was intended, that the automatic setting of money bails will continue and that the unnecessary and therefore constitutionally interdicted pretrial detention of indigents will be the inevitable result.

We doubt that the Florida Supreme Court's failure to express such a presumption necessarily imputes to it a design thus to circumvent constitutional requirements. Its rule mandates that "all relevant factors" be considered in determining "what form of release is necessary to assure the defendant's appearance." If the same "is required" to accomplish that result, the rule provides that the judge will determine the amount of a monetary bail. Rule 3.130(b)(4) is new. The record before us reflects neither its interpretation nor application by the courts of Florida. If it is possible to do so, Rule 3.130(b)(4) is due to be construed so as to avoid constitutional infirmity. New York Times Company, et al v. Conner, 291 F.2d 492 (5th Cir. 1961); U. S. v. Boerner, 508 F.2d 1064 (5th Cir. 1975), cert. den. 421 U.S. 1013, 95 S.Ct. 2418, 44 L.Ed.2d 681. Courts do not consider a tendered constitutional question if the contended for result can be reached by statutory interpretation. Hagans, et al v. Lavine, Commissioner, New York Department of Social Services, et al, 415 U.S. 528, 546, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Benton-Volve-Metairie, Inc. v. Volvo Southwest, Inc., 479 F.2d 135 (5th Cir. 1973); Tolg v. Grimes, 355 F.2d 92 (5th Cir. 1966). It is our view that as now written, the rule is subject to constitutional interpretation and application. 8

The record before the Court contains only evidence of practices...

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