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CLOSED,SCHEDO,STAYED

U.S. District Court District of New Jersey [LIVE] (Camden) CIVIL DOCKET FOR CASE #: 1:17-cv-04317-JBS-KMW

HOLLAND et al v. ROSEN et al Assigned to: Judge Jerome B. Simandle Referred to: Magistrate Judge Karen M. Williams Case in other court: Third Circuit, 17-03104 Cause: 42:1983 Civil Rights Act

Date Filed: 06/14/2017 Date Terminated: 10/31/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
BRITTAN B HOLLAND individually and on behalf of all others similarly situated

represented by JUSTIN TAYLOR QUINN ROBINSON MILLER LLC ONE NEWARK CENTER 19th FLOOR NEWARK, NJ 07102 973-690-5400 Email: jquinn@rwmlegal.com ATTORNEY TO BE NOTICED

Plaintiff
LEXINGTON NATIONAL INSURANCE CORPORATION

MICHAEL F. WILLIAMS KIRKLAND & ELLIS LLP 655 FIFTEENTH STREET NW WASHINGTON, DC 20005 202-879-5000 Email: michael.williams@kirkland.com ATTORNEY TO BE NOTICED
represented by JUSTIN TAYLOR QUINN (See above for address) ATTORNEY TO BE NOTICED

MICHAEL F. WILLIAMS (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
KELLY ROSEN Pretrial Services Team Leader

represented by CHRISTOPHER JOSEPH RIGGS STATE OF NEW JERSEY OFFICE OF THE ATTORNEY

Defendant MARY E COLALILLO Camden County Prosecutor
Defendant CHRISTOPHER PORRINO Attorney General of New Jersey
Amicus AMERICAN CIVIL LIBERTIES UNION, ET AL.

GENERAL 25 MARKET STREET P.O. BOX 116 TRENTON, NJ 08625 609-292-6116 Email: christopher.riggs@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
STUART MARK FEINBLATT Ofﬁce of the Attorney General Hughes Justice Complex 25 W. Market Street Trenton, NJ 08625 (609) 984-9666 Fax: (609) 292-0690 Email: Stuart.Feinblatt@law.njoag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by CHRISTOPHER JOSEPH RIGGS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
STUART MARK FEINBLATT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by CHRISTOPHER JOSEPH RIGGS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
STUART MARK FEINBLATT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ALEXANDER R. SHALOM AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION 89 Market Street, 7th Floor P.O. BOX 32159 NEWARK, NJ 07102

973-854-1714 Email: ashalom@aclu-nj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/14/2017
06/14/2017 06/14/2017
06/14/2017 06/14/2017
06/14/2017 06/14/2017 06/15/2017
06/21/2017 06/21/2017 06/21/2017

# Docket Text
1 COMPLAINT against MARY E COLALILLO, CHRISTOPHER PORRINO, KELLY ROSEN ( Filing and Admin fee $ 400 receipt number 0312-7902618), ﬁled by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION. (Attachments: # 1 Civil Cover Sheet, # 2 Certiﬁcation Rule 11.2)(WILLIAMS, MICHAEL) (Entered: 06/14/2017)
2 Corporate Disclosure Statement by LEXINGTON NATIONAL INSURANCE CORPORATION. (WILLIAMS, MICHAEL) (Entered: 06/14/2017)
3 MOTION for Preliminary Injunction by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION. (Attachments: # 1 Brief in Support of Motion for Preliminary Injunction, # 2 Declaration of Holland, # 3 Declaration of Wachinski, # 4 Text of Proposed Order)(WILLIAMS, MICHAEL) (Entered: 06/14/2017)
Judge Renee Marie Bumb and Magistrate Judge Karen M. Williams added. (dd, ) (Entered: 06/14/2017)
CLERK'S QUALITY CONTROL MESSAGE - The case you electronically ﬁled has been processed, however, the following deﬁciencies were found: Party Information, . The Clerk's Ofﬁce has made the appropriate changes. Please refer to the Attorney Case Opening Guide for processing electronically ﬁled cases. (jbk, ) (Entered: 06/14/2017)
Notice of Judicial Preferences. Click here for the Judge's Individual Procedure Requirements. (jbk, ) (Entered: 06/14/2017)
4 NOTICE of Appearance by JUSTIN TAYLOR QUINN on behalf of BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION (QUINN, JUSTIN) (Entered: 06/14/2017)
5 SUMMONS ISSUED as to MARY E COLALILLO, CHRISTOPHER PORRINO, KELLY ROSEN Attached is the ofﬁcial court Summons, please ﬁll out Defendant and Plaintiffs attorney information and serve. Issued By *JAIME KASSELMAN* (jbk, ) (Entered: 06/15/2017)
6 SUMMONS Returned Executed by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION. KELLY ROSEN served on 6/19/2017, answer due 7/10/2017. (QUINN, JUSTIN) (Entered: 06/21/2017)
7 SUMMONS Returned Executed by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION. CHRISTOPHER PORRINO served on 6/16/2017, answer due 7/7/2017. (QUINN, JUSTIN) (Entered: 06/21/2017)
8 SUMMONS Returned Executed by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION. MARY E COLALILLO served on 6/16/2017, answer due 7/7/2017. (QUINN, JUSTIN) (Entered: 06/21/2017)

06/27/2017 06/27/2017 06/27/2017 06/27/2017
06/29/2017 06/30/2017
07/21/2017
07/21/2017
07/25/2017 07/27/2017 07/28/2017

9 TEXT ORDER REASSIGNING CASE. Case reassigned to Judge Jerome B. Simandle for all further proceedings. Judge Renee Marie Bumb no longer assigned to case. So Ordered by Chief Judge Jose L. Linares on 6/27/2017. (mmb, ) (Entered: 06/27/2017)
10 NOTICE of Appearance by CHRISTOPHER JOSEPH RIGGS on behalf of MARY E COLALILLO, CHRISTOPHER PORRINO, KELLY ROSEN (RIGGS, CHRISTOPHER) (Entered: 06/27/2017)
11 NOTICE of Appearance by STUART MARK FEINBLATT on behalf of MARY E COLALILLO, CHRISTOPHER PORRINO, KELLY ROSEN (FEINBLATT, STUART) (Entered: 06/27/2017)
12 TEXT ORDER : All counsel are requested to participate in a telephone conference with the undersigned regarding Plaintiffs' Motion for Preliminary Injunction [Docket Item 3] for the purposes of setting the brieﬁng schedule and hearing date and addressing any logistical concerns. Plaintiffs' counsel, Justin Quinn, Esq., is requested to arrange the conference call on Friday, June 30, 2017 at 11:00 A.M. So Ordered by Judge Jerome B. Simandle on 6/27/17. (mb, ) (Entered: 06/27/2017)
13 Letter from Justin T. Quinn, Esq. to the Honorable Jerome B. Simandle, U.S.D.J. re 12 Order,. (QUINN, JUSTIN) (Entered: 06/29/2017)
14 SCHEDULING ORDER: Telephone Conference set for 8/14/2017 at 1:00 PM before Judge Jerome B. Simandle. Deadlines as to 3 MOTION for Preliminary Injunction . Responses due by 7/28/2017, Replies due by 8/7/2017., Motion hearing set for 8/17/2017 at 10:00 AM in Camden - Courtroom 4A before Judge Jerome B. Simandle. Signed by Judge Jerome B. Simandle on 6/30/2017. (dmr, ) (Entered: 06/30/2017)
15 MOTION for Leave to Appear Pro Hac Vice by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION. (Attachments: # 1 Statement of Justin T. Quinn, Esq. Pursuant to L. Civ. R. 7.1(d)(4), # 2 Declaration of Justin T. Quinn, Esq., # 3 Declaration of Paul D. Clement, Esq., # 4 Declaration of Christopher G. Michel, Esq., # 5 Declaration of Andrew C. Lawrence, Esq., # 6 Text of Proposed Order, # 7 Certiﬁcate of Service)(QUINN, JUSTIN) (Entered: 07/21/2017)
Set/Reset Deadlines as to 15 MOTION for Leave to Appear Pro Hac Vice . Motion set for 8/21/2017 before Magistrate Judge Karen M. Williams. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Ofﬁce and does not supersede any previous or subsequent orders from the Court. (dmr) (Entered: 07/21/2017)
16 Letter from Defendants requesting permission to ﬁle an overlength brief. (FEINBLATT, STUART) (Entered: 07/25/2017)
17 TEXT ORDER : The Court is in receipt of Defendants' July 25, 2017 letter [Docket Item 16] requesting permission to ﬁle a brief of 50 pages, rather than the 40 pages allowed under L. Civ. R. 7.2(b). The Court grants the request, for good cause shown. So Ordered by Judge Jerome B. Simandle on 7/27/17. (mb, ) (Entered: 07/27/2017)
18 First MOTION for Leave to Appear Amicus Curiae by AMERICAN CIVIL LIBERTIES UNION, ET AL.. (Attachments: # 1 Certiﬁcation Certiﬁcation of Alexander Shalom, # 2 Brief, # 3 Text of Proposed Order, # 4 Certiﬁcate of Service) (SHALOM, ALEXANDER) (Entered: 07/28/2017)

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07/28/2017
07/28/2017 07/28/2017 07/28/2017 07/28/2017 07/31/2017
08/02/2017

19 First MOTION for Leave to Appear Pro Hac Vice by AMERICAN CIVIL LIBERTIES UNION, ET AL.. (Attachments: # 1 Certiﬁcation Certiﬁcation of Brandon J. Buskey, # 2 Certiﬁcation Certiﬁcation of Alexander Shalom, # 3 Text of Proposed Order) (SHALOM, ALEXANDER) (Entered: 07/28/2017)
20 Second MOTION for Leave to Appear Pro Hac Vice by AMERICAN CIVIL LIBERTIES UNION, ET AL.. (Attachments: # 1 Certiﬁcation Certiﬁcation of Andrea Woods, # 2 Certiﬁcation Certiﬁcation of Alexander Shalom, # 3 Text of Proposed Order)(SHALOM, ALEXANDER) (Entered: 07/28/2017)
Set/Reset Deadlines as to 20 Second MOTION for Leave to Appear Pro Hac Vice , 19 First MOTION for Leave to Appear Pro Hac Vice , 18 First MOTION for Leave to Appear Amicus Curiae . Motion set for 8/21/2017 before Magistrate Judge Karen M. Williams. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Ofﬁce and does not supersede any previous or subsequent orders from the Court. (dmr) (Entered: 07/28/2017)
CLERK'S QUALITY CONTROL MESSAGE - The Certiﬁcations of Brandon J. Buskey, and Andrea Woods in Support of the Motions to Appear Pro Hac Vice 19 amd 20 submitted by ALEXANDER R. SHALOM on 7/28/2017 contains an improper signature. Only Registered Users are permitted to sign electronically ﬁled documents with an s/. PLEASE RESUBMIT THE DOCUMENT WITH A PROPER SCANNED SIGNATURE using the "Certiﬁcation" event found under Responses and Replies. This submission will remain on the docket unless otherwise ordered by the court. (dmr) (Entered: 07/28/2017)
21 CERTIFICATION in Support ﬁled by AMERICAN CIVIL LIBERTIES UNION, ET AL. re 19 First MOTION for Leave to Appear Pro Hac Vice (SHALOM, ALEXANDER) (Entered: 07/28/2017)
22 CERTIFICATION in Support ﬁled by AMERICAN CIVIL LIBERTIES UNION, ET AL. re 20 Second MOTION for Leave to Appear Pro Hac Vice (SHALOM, ALEXANDER) (Entered: 07/28/2017)
23 BRIEF in Opposition ﬁled by MARY E COLALILLO, CHRISTOPHER PORRINO, KELLY ROSEN re 3 MOTION for Preliminary Injunction (Attachments: # 1 Declaration Leo Feldman, # 2 Declaration Michelle Smith, # 3 Certiﬁcate of Service) (FEINBLATT, STUART) (Entered: 07/28/2017)
24 MOTION to Dismiss in lieu of Answer by MARY E COLALILLO, CHRISTOPHER PORRINO, KELLY ROSEN. Responses due by 8/7/2017 (Attachments: # 1 Brief, # 2 Text of Proposed Order, # 3 Certiﬁcate of Service)(FEINBLATT, STUART) (Entered: 07/28/2017)
Set/Reset Deadlines as to 24 MOTION to Dismiss in lieu of Answer. Motion set for 8/21/2017 before Judge Jerome B. Simandle. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Ofﬁce and does not supersede any previous or subsequent orders from the Court. (dmr) (Entered: 07/31/2017)
25 Letter from Justin T. Quinn, Esq. to the Honorable Jerome B. Simandle, U.S.D.J. (QUINN, JUSTIN) (Entered: 08/02/2017)

08/02/2017 08/03/2017 08/07/2017 08/07/2017 08/07/2017 08/08/2017 08/08/2017 08/09/2017 08/09/2017 08/10/2017
08/10/2017 08/14/2017 08/14/2017 08/15/2017 08/17/2017

26 Letter from Defendants re 18 First MOTION for Leave to Appear Amicus Curiae . (FEINBLATT, STUART) (Entered: 08/02/2017)
27 ORDER granting letter request for permission to ﬁle a 20 page reply brief in support of Plaintiff's motion for preliminary injunction. Signed by Judge Jerome B. Simandle on 8/2/2017. (dmr) (Entered: 08/03/2017)
28 Letter from Justin T. Quinn, Esq. to the Honorable Jerome B. Simandle, U.S.D.J.. (Attachments: # 1 Stipulation & Consent Order)(QUINN, JUSTIN) (Entered: 08/07/2017)
29 REPLY BRIEF to Opposition to Motion ﬁled by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION re 3 MOTION for Preliminary Injunction (WILLIAMS, MICHAEL) (Entered: 08/07/2017)
30 Letter from Counsel for Amici Curiae. (SHALOM, ALEXANDER) (Entered: 08/07/2017)
31 ORDER granting 18 Motion to Appear Amicus Curiae. Signed by Judge Jerome B. Simandle on 8/8/2017. (dmr) (Entered: 08/08/2017)
32 STIPULATION AND CONSENT ORDER re brieﬁng schedule as to 24 MOTION to Dismiss. Responses due by 9/15/2017, Replies due by 10/4/2017. Signed by Judge Jerome B. Simandle on 8/8/2017. (dmr) (Entered: 08/09/2017)
33 ORDER granting 19 Motion for Leave to Appear Pro Hac Vice as to Brandon J. Buskey,. Signed by Judge Jerome B. Simandle on 8/9/2017. (dmr) (Entered: 08/09/2017)
34 ORDER granting 20 Motion for Leave to Appear Pro Hac Vice as to Andrea Woods. Signed by Judge Jerome B. Simandle on 8/9/2017. (dmr) (Entered: 08/09/2017)
35 TEXT ORDER : The Court adjourns the Thursday, August 17, 2017 preliminary injunction hearing until Tuesday, August 22, 2017 at 3:00 PM or Wednesday, August 23, 2017 at 2:00 PM. The Court will still hold the telephone conference scheduled for Monday, August 14, 2017 at 2:00 PM, and the parties should be prepared to discuss the new hearing date at that time. So Ordered by Judge Jerome B. Simandle on 8/10/17. (mb, ) (Entered: 08/10/2017)
36 ORDER granting 15 Motion for Leave to Appear Pro Hac Vice as to Paul D. Clement, Christopher G. Michel, and Andrew C. Lawrence. Signed by Magistrate Judge Karen M. Williams on 8/10/2017. (dmr) (Entered: 08/10/2017)
37 TEXT ORDER : The Court will now hold the preliminary injunction hearing on Tuesday, August 22, 2017 at 3:00 PM in Courtroom 4A. So Ordered by Judge Jerome B. Simandle on 8.14.17. (mb, ) (Entered: 08/14/2017)
38 Minute Entry for proceedings held before Judge Jerome B. Simandle: Telephone Conference held on 8/14/2017. Preliminary Injunction hearing set for August 22, 2017 at 3:00 pm. (tf, ) (Entered: 08/15/2017)
Pro Hac Vice fee of $150 received as to Brandon J. Buskey, Esq., receipt number TRE083294 (mps) (Entered: 08/15/2017)
Pro Hac Vice fee of $150 received as to Andrea Woods, Esq., receipt number TRE083414 (mps) (Entered: 08/17/2017)

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09/05/2017
09/08/2017

39 Notice of Request by Pro Hac Vice Paul D. Clement, Esq. to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number 0312-8035318.) (QUINN, JUSTIN) (Entered: 08/18/2017)
40 Notice of Request by Pro Hac Vice Christopher G. Michel, Esq. to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number 0312-8035342.) (QUINN, JUSTIN) (Entered: 08/18/2017)
41 Notice of Request by Pro Hac Vice Andrew C. Lawrence, Esq. to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number 0312-8035366.) (QUINN, JUSTIN) (Entered: 08/18/2017)
Pro Hac Vice counsel, PAUL D. CLEMENT, CHRISTOPHER G. MICHEL and ANDREW C. LAWRENCE, have been added to receive Notices of Electronic Filing. Pursuant to L.Civ.R. 101.1, only local counsel are entitled to sign and ﬁle papers, enter appearances and receive payments on judgments, decrees or orders. (js) (Entered: 08/18/2017)
42 Minute Entry for proceedings held before Judge Jerome B. Simandle: Preliminary Injunction Hearing held on 8/22/2017 re 3 MOTION for Preliminary Injunction ﬁled by Brittan Holland and Lexington National Insurance. Ordered Decision Reserved. (Court Reporter/Recorder Lisa Marcus.) (dmr) (Entered: 08/23/2017)
43 LETTER addressed to Counsel re; PSA score and NCVA ﬂag. Signed by Judge Jerome B. Simandle on 8/23/2017. (dmr) (Entered: 08/24/2017)
44 NOTICE by AMERICAN CIVIL LIBERTIES UNION, ET AL. Request to Receive Electronic Notiﬁcation (SHALOM, ALEXANDER) (Entered: 08/31/2017)
45 NOTICE by AMERICAN CIVIL LIBERTIES UNION, ET AL. Request to Receive Electronic Notiﬁcation (SHALOM, ALEXANDER) (Entered: 08/31/2017)
Pro Hac Vice counsel, ANDREA WOODS and BRANDON BUSKEY, have been added to receive Notices of Electronic Filing. Pursuant to L.Civ.R. 101.1, only local counsel are entitled to sign and ﬁle papers, enter appearances and receive payments on judgments, decrees or orders. (dmr) (Entered: 08/31/2017)
CLERK'S QUALITY CONTROL MESSAGE - The Notices of Request for Pro Hac Vice Counsel to Receive Electronic Notiﬁcations ﬁled by Alexander Shalom on 8/31/2017 were submitted incorrectly using the wrong Notice event. For future reference, the correct event to use is "Notice of Pro Hac Vice to Receive NEF" found under Notice. This submission will remain on the docket unless otherwise ordered by the court. This message is for informational purposes only. (dmr) (Entered: 08/31/2017)
46 TEXT ORDER : The Court previously set a brieﬁng schedule [Docket Item 32] pertaining to Defendants' Motion to Dismiss [Docket Item 24]. The Court hereby modiﬁes the brieﬁng schedule as follows: Plaintiffs shall ﬁle their opposition to Defendants' motion to dismiss on or before the date seven (7) days after the ﬁling date of the Court's forthcoming Opinion and Order regarding Plaintiffs' Motion for Preliminary Injunction [Docket Item 3]. Defendants shall ﬁle their respective reply within twenty (20) days of the ﬁling of Plaintiffs' Opposition.. So Ordered by Judge Jerome B. Simandle on 9/5/17. (mb, ) (Entered: 09/05/2017)
47 Letter from State Defendants advising of District of New Mexico opinion.

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09/12/2017
09/12/2017 09/13/2017 09/13/2017 09/13/2017 09/13/2017 09/14/2017 09/14/2017

(Attachments: # 1 Exhibit)(FEINBLATT, STUART) (Entered: 09/08/2017)
48 NOTICE by All Plaintiffs OF WITHDRAWAL OF PRO HAC VICE COUNSEL (CHRISTOPHER G. MICHEL, ESQ.) (QUINN, JUSTIN) (Entered: 09/11/2017)
49 Consent MOTION for Leave to Appear Pro Hac Vice by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION. (Attachments: # 1 Statement of Justin T. Quinn, # 2 Declaration of Justin T. Quinn, # 3 Declaration of Edmund G. LaCour Jr., # 4 Text of Proposed Order)(QUINN, JUSTIN) (Entered: 09/11/2017)
50 Transcript of Proceedings held on 8/22/17, before Judge Simandle. Court Reporter/Transcriber Lisa Marcus (856-968-4986). NOTICE REGARDING (1) REDACTION OF PERSONAL IDENTIFIERS IN TRANSCRIPTS AND (2) MOTION TO REDACT AND SEAL: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this Transcript to comply with Fed.R.Civ.P.5.2(a) (personal identiﬁers). Parties seeking to redact and seal this Transcript, or portions thereof, pursuant to L.Civ.R. 5.3(g) must e-ﬁle a Motion to Redact and Seal utilizing the event `Redact and Seal Transcript/Digital Recording`. Redaction Request to Court Reporter/Transcription Agency due, but not ﬁled, by 10/2/2017. Redacted Transcript Deadline set for 10/12/2017. Release of Transcript Restriction set for 12/11/2017. (dd, ) (Entered: 09/12/2017)
Set/Reset Deadlines as to 49 Consent MOTION for Leave to Appear Pro Hac Vice . Motion set for 10/16/2017 before Magistrate Judge Karen M. Williams. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Ofﬁce and does not supersede any previous or subsequent orders from the Court. (dmr) (Entered: 09/12/2017)
51 Letter from Justin T. Quinn, Esq. to the Honorable Jerome B. Simandle, U.S.D.J. requesting leave to ﬁle sur-reply. re 47 Letter. (QUINN, JUSTIN) (Entered: 09/12/2017)
52 Letter from Defendants in response to Plaintiffs' September 12, 2017 letter re 51 Letter. (FEINBLATT, STUART) (Entered: 09/13/2017)
53 ORDER granting 49 Motion for Leave to Appear Pro Hac Vice as to Edmund G. LaCour, Jr. Signed by Magistrate Judge Karen M. Williams on 9/13/2017. (dmr) (Entered: 09/13/2017)
54 ORDER granting Plaintiff's letter request for leave to submit a sur-reply of no more than 2 pages regarding each holding of Colins, etc. Signed by Judge Jerome B. Simandle on 9/13/2017. (dmr) (Entered: 09/13/2017)
55 Notice of Request by Pro Hac Vice Edmund G. LaCour Jr., Esq. to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number 0312-8087392.) (QUINN, JUSTIN) (Entered: 09/13/2017)
Pro Hac Vice counsel, EDMUND G. LACOUR, JR, has been added to receive Notices of Electronic Filing. Pursuant to L.Civ.R. 101.1, only local counsel are entitled to sign and ﬁle papers, enter appearances and receive payments on judgments, decrees or orders. (dmr) (Entered: 09/14/2017)
56 ORDER granting letter request to ﬁle a bruef in response to Plaintiff's sur reply. Signed by Judge Jerome B. Simandle on 9/13/2017. (dmr) (Entered: 09/14/2017)

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09/26/2017 09/26/2017 09/27/2017 09/28/2017 09/28/2017 09/29/2017

57 Letter from Justin T. Quinn, Esq. to the Honorable Jerome B. Simandle, U.S.D.J. re 54 Order, 51 Letter. (Attachments: # 1 Collins v. Daniel, No. 1:17-cv-0076-RJ-KK (D.N.M. Sept. 7, 2017))(QUINN, JUSTIN) (Entered: 09/14/2017)
58 Letter from Defendants in response to Plaintiffs' sur-reply dated September 14, 2017 re 57 Letter. (FEINBLATT, STUART) (Entered: 09/18/2017)
59 OPINION. Signed by Judge Jerome B. Simandle on 9/21/2017. (dmr) (Entered: 09/21/2017)
60 ORDER denying Plaintiffs' 3 Motion for Preliminary Injunction. Signed by Judge Jerome B. Simandle on 9/21/2017. (dmr) (Entered: 09/21/2017)
61 NOTICE OF APPEAL as to 59 Opinion, 60 Order on Motion for Preliminary Injunction by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION. Filing fee $ 505, receipt number 0312-8112551. The Clerk's Ofﬁce hereby certiﬁes the record and the docket sheet available through ECF to be the certiﬁed list in lieu of the record and/or the certiﬁed copy of the docket entries. (QUINN, JUSTIN) (Entered: 09/25/2017)
63 Transcript of Proceedings held on 8/22/2017, before Judge JEROME B. SIMANDLE. Court Reporter/Transcriber Lisa Marcus (856-968-4986). NOTICE REGARDING (1) REDACTION OF PERSONAL IDENTIFIERS IN TRANSCRIPTS AND (2) MOTION TO REDACT AND SEAL: The parties have seven (7) calendar days to ﬁle with the Court a Notice of Intent to Request Redaction of this Transcript to comply with Fed.R.Civ.P.5.2(a) (personal identiﬁers). Parties seeking to redact and seal this Transcript, or portions thereof, pursuant to L.Civ.R. 5.3(g) must e-ﬁle a Motion to Redact and Seal utilizing the event `Redact and Seal Transcript/Digital Recording`. Redaction Request to Court Reporter/Transcription Agency due, but not ﬁled, by 10/16/2017. Redacted Transcript Deadline set for 10/26/2017. Release of Transcript Restriction set for 12/26/2017. (tf, ) (Entered: 09/26/2017)
62 Letter from Justin T. Quinn, Esq. to the Honorable Jerome B. Simandle, U.S.D.J. requesting stay of proceedings re 61 Notice of Appeal (USCA),. (QUINN, JUSTIN) (Entered: 09/26/2017)
64 ORDER directing Defendants to submit a letter-brief in response to Plaintiffs' application for stay pending appeal before the close of business on 9/28/2017, etc. Signed by Judge Jerome B. Simandle on 9/26/2017. (dmr) (Entered: 09/26/2017)
65 USCA Case Number 17-3104 for 61 Notice of Appeal (USCA), ﬁled by LEXINGTON NATIONAL INSURANCE CORPORATION, BRITTAN B HOLLAND. USCA Case Manager Carmella (Document Restricted - Court Only)(ca3cw,) (Entered: 09/27/2017)
66 TRANSCRIPT REQUEST by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION for proceedings held on 08/22/2017 before Judge Jerome B. Simandle.. (WILLIAMS, MICHAEL) (Entered: 09/28/2017)
67 Letter from Defendants in response to Plaintiffs' application for a stay re 64 Order, 62 Letter. (FEINBLATT, STUART) (Entered: 09/28/2017)
68 ORDER For Temporary Stay Pending Appeal; ORDERED that Defendants' motion to dismiss 24 is ADMINISTRATIVELY TERMINATED, etc. Signed by Judge Jerome B. Simandle on 9/29/2017. (dmr) (Entered: 09/29/2017)

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69 USCA JUDGMENT as to 61 Notice of Appeal (USCA), ﬁled by LEXINGTON NATIONAL INSURANCE CORPORATION, BRITTAN B HOLLAND (ca3cw) (Entered: 07/09/2018)
Pursuant to Local Rule 79.4, notice is hereby given of the Appellate ruling ﬁled on 7/9/2018. In the event that the mandate or judgment provides for costs or directs a disposition other than an afﬁrmance, the prevailing party shall prepare and submit an order implementing the mandate or judgment. (js) (Entered: 07/09/2018)
70 Letter from Defendants. (Attachments: # 1 Exhibit, # 2 Exhibit)(FEINBLATT, STUART) (Entered: 07/24/2018)
71 Letter from Justin T. Quinn, Esq. to the Honorable Jerome B. Simandle, U.S.D.J. re 70 Letter. (QUINN, JUSTIN) (Entered: 07/25/2018)
72 MANDATE of USCA as to 61 Notice of Appeal (USCA), ﬁled by LEXINGTON NATIONAL INSURANCE CORPORATION, BRITTAN B HOLLAND (Finance notiﬁed) (Attachments: # 1 Clerk's Letter to District Court, # 2 Opinion)(ca3jk, ) (Entered: 07/31/2018)
73 ORDER Extending Temporary Stay. Signed by Judge Jerome B. Simandle on 8/7/2018. (dmr) (Entered: 08/07/2018)
74 NOTICE of Voluntary Dismissal by BRITTAN B HOLLAND, LEXINGTON NATIONAL INSURANCE CORPORATION (QUINN, JUSTIN) (Entered: 10/31/2018)
***Civil Case Terminated. (rss, ) (Entered: 10/31/2018)

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1:17-cv-04317-JBS-KMW Start date: 1/1/1971 End date: 5/11/2020

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PAUL D. CLEMENT* MICHAEL F. WILLIAMS CHRISTOPHER G. MICHEL* ANDREW C. LAWRENCE* KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, DC 20005 (202) 879-5000 michael.williams@kirkland.com

JUSTIN T. QUINN ROBINSON MILLER LLC One Newark Center 19th Floor Newark, NJ 07102 (973) 690-5400 jquinn@rwmlegal.com

Counsel for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BRITTAN B. HOLLAND, individually and )

on behalf of all others similarly )

situated, and LEXINGTON NATIONAL )

INSURANCE CORPORATION;

)

Plaintiffs,

) )

v.

) )

KELLY ROSEN, Pretrial Services Team Leader; MARY E. COLALILLO, Camden County Prosecutor; CHRISTOPHER S. PORRINO, Attorney General of New Jersey;

) ) ) ) ) )

Defendants.

) )

No. ______

CLASS ACTION COMPLAINT * Pro hac vice motions to be filed.

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Local Civil Rule 10.1(a) Statement Pursuant to Local Civil Rule 10.1(a), the mailing addresses of the parties to
this action are as follows: Brittan B. Holland 3 Madeley Court Sicklerville, NJ 08081 Lexington National Insurance Corporation 11426 York Road Cockeysville MD 21030 Kelly Rosen Superior Court of New Jersey, Camden Vicinage 101 South 5th Street Camden, NJ 08103 Mary E. Colalillo Camden County Prosecutor’s Office 25 North 5th Street Camden, NJ 08102 Christopher Porrino Richard J. Hughes Justice Complex 25 Market Street P.O. Box 080 Trenton, NJ 08625
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Plaintiff Brittan B. Holland, on behalf of himself and all others similarly situated, and Plaintiff Lexington National Insurance Corporation (collectively “Plaintiffs”), bring this action against Defendants Kelly Rosen, Mary Colalillo, and Christopher S. Porrino (collectively “Defendants”), and allege the following:
PRELIMINARY STATEMENT 1. Plaintiff Holland stands accused but unconvicted of a crime. Under bedrock principles of American law, he is presumed innocent. And like all innocent people, he is presumptively entitled to liberty from any pre-trial restraint. 2. For centuries, the mechanism for ensuring a defendant’s liberty from pre-trial restraint was monetary bail. A person accused but unconvicted of a bailable offense could not be subject to any pre-trial deprivation of liberty without the option of bail, unless the government showed that no amount of money would serve the government’s interest in securing the defendant’s future appearance (or, more recently, that detention was necessary to protect the community from danger). Bail is thus a liberty-preserving mechanism as old as the Republic. 3. The availability of bail is enshrined in the Bill of Rights. The Eighth Amendment forbids “[e]xcessive bail,” a protection that presupposes the option of bail. And the vast majority of state constitutions throughout American history, including New Jersey’s, have likewise guaranteed defendants (in all but capital cases) the option of bail before being subjected to pre-trial deprivations of liberty.
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4. The option of bail to avoid pre-trial deprivations of liberty no longer exists in New Jersey. Under the Criminal Justice Reform Act (“CJRA”), which took effect January 1, 2017, New Jersey courts may not consider releasing a defendant on bail unless they first conclude that no combination of non-monetary conditions— including substantial deprivations of pre-trial liberty like home detention or 24-hour electronic monitoring through an “ankle bracelet”—will ensure the defendant’s appearance at trial. Thus, no matter how much an accused would prefer posting bail and securing his liberty, New Jersey law mandates that home detention or an electronic monitoring device be imposed instead.
5. Plaintiff Holland’s experience is illustrative. He was arrested after an alleged bar fight and charged with assault. He has a job, a supportive family, a residence in the community, and part-time custody of his son. Given his ties to the community and lack of a criminal record, he would have been eligible for release on bail before New Jersey’s enactment of the CJRA. And he could have paid a nonexcessive amount of bail to secure his future appearance, likely with the help of a surety company like Plaintiff Lexington National. He then would have enjoyed his full pre-trial liberty, just like any other presumptively innocent member of society.
6. Instead, under the CJRA, the court never had the option to set bail, let alone to give Plaintiff Holland the opportunity to post it. Instead, relying on a new “risk assessment tool,” the court concluded that Plaintiff Holland’s appearance could
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be secured by a set of restrictive non-monetary conditions, including home detention, an electronic monitor that he must wear around his ankle constantly and that tracks his movement 24 hours a day, and a requirement that he report to the pretrial services office every two weeks—even if it disrupts his job. As a result, Plaintiff Holland’s liberty is sharply curtailed. Among other things, he cannot shop for food or basic necessities and cannot take his son to baseball practice, an important aspect of his custodial responsibilities and his efforts to bond with his child.
7. Thousands of other New Jersey defendants have been, and will continue to be, subjected to similar life-altering, liberty-restricting conditions without ever receiving the option of bail. And they are not the only ones harmed. The CJRA largely eliminates the business of commercial sureties like Plaintiff Lexington National, which help criminal defendants obtain their pre-trial freedom without infringing on their civil liberties.
8. The CJRA deviates from three centuries of American criminal practice. The state believes its new approach will reduce the number of detained defendants who cannot afford bail, and Plaintiffs have no quarrel with that general objective. But the state can achieve that goal while offering both monetary bail and other conditions, as appropriate. What New Jersey may not do is restrict the liberty of presumptively innocent defendants without offering the one alternative to substantial pre-trial deprivations that the Constitution expressly protects—monetary bail.
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JURISDICTION AND VENUE 9. This action seeks declaratory and injunctive relief, damages, and other relief pursuant to 28 U.S.C. §§2201 and 2202 and 42 U.S.C. §§1983 and 1988. 10. This Court has subject-matter jurisdiction over Plaintiffs’ federal constitutional claims pursuant to 28 U.S.C. §§1331 and 1343(a)(3). 11. Venue is proper pursuant to 28 U.S.C. §1391(b)(2). 12. There is an active, justiciable controversy between the parties over whether Defendants’ imposition of liberty-restricting conditions of pre-trial release on Plaintiff Holland and other presumptively innocent criminal defendants— including prospective clients of sureties like Plaintiff Lexington National—without providing the option of monetary bail violates the Constitution. 13. Declaratory relief will resolve this controversy and eliminate the burden imposed on Plaintiffs’ constitutional rights. 14. A preliminary injunction preventing Defendants from enforcing the challenged statutory provisions will shield Plaintiffs’ constitutional rights from ongoing harm while this litigation is pending. 15. A permanent injunction against Defendants, preventing them from enforcing the challenged statutory provisions, will protect Plaintiffs’ rights prospectively after final resolution of this matter.
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PARTIES 16. Plaintiff Brittan B. Holland is a citizen of New Jersey who resides in Sicklerville. Plaintiff was arrested April 6, 2017, and charged with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), based on his alleged role in a bar fight. Plaintiff has a job, a supportive family, and a residence in the community, and he could have paid a non-excessive amount of bail required to assure his future appearance. Under New Jersey law, however, the court could not offer him that option, but instead had to consider whether non-financial conditions would assure his appearance before considering bail. The court determined that a combination of non-financial conditions—including home detention, mandatory electronic monitoring through a GPS-tracking ankle bracelet worn 24 hours a day, and rigid pre-trial reporting requirements—would do so, and accordingly imposed those conditions without giving Plaintiff Holland the option of posting bail. 17. Plaintiff Lexington National is a Florida corporation based in Maryland and licensed to do business and operating extensively in New Jersey. Lexington National operates through independent bail bondsmen who are licensed by the New Jersey Department of Insurance and registered with the Superior Court clerk. Lexington National stands ready, willing, and able to issue and post a bail bond to Plaintiff Holland and others similarly situated.
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18. Defendant Kelly Rosen is the Team Leader for Pretrial Services in the Criminal Division of the Superior Court of New Jersey, Camden Vicinage. Defendant Rosen is responsible for enforcing the conditions of release against Plaintiff Holland. Defendant Rosen is sued for declaratory and injunctive relief in her official capacity and for damages in her personal capacity.
19. Defendant Mary Colalillo is the Camden County Prosecutor. Defendant Colalillo is responsible for enforcing New Jersey laws in Camden County, including the provisions of the CJRA challenged here. N.J.S.A. 2A:158-5. Defendant Colalillo would be responsible for any additional prosecution or other action taken against Plaintiff Holland in conjunction with the conditions of his pretrial release. Defendant Colalillo is sued for declaratory and injunctive relief in her official capacity and for damages in her personal capacity.
20. Defendant Christopher S. Porrino is the Attorney General of New Jersey. Defendant Porrino is responsible for enforcing New Jersey laws statewide, including the provisions of the CJRA challenged here. Defendant Porrino would be responsible for any additional prosecution or other action taken against Plaintiff Holland in conjunction with the conditions of his pre-trial release. Defendant Porrino is sued for declaratory and injunctive relief in his official capacity and for damages in his personal capacity.
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FACTUAL ALLEGATIONS A. Historical and Constitutional Background 21. “Bail … is basic to our system of law.” Schilb v. Kuebel, 404 U.S. 357, 365 (1971). With roots tracing to the “ancient practice[s]” of English common law and the Magna Carta, bail has preserved the “traditional right to freedom before conviction” for almost a thousand years. Stack v. Boyle, 342 U.S. 1, 4 (1951). 22. The defining documents of English liberty—the Statute of Westminster of 1275, the Petition of Right of 1628, the Habeas Corpus Act of 1679, and the English Bill of Rights of 1689—all recognize a defendant’s right to bail. See Cobb v. Aytch, 643 F.2d 946, 958 n.7 (3d Cir. 1981) (en banc). 23. Early American authorities likewise recognized the right to bail. The Northwest Ordinance, adopted by the Continental Congress in 1787, provided that “[a]ll persons shall be bailable, unless for capital offenses where the proof should be evident, or the presumption great.” 1 Stat. 50, 52. The Judiciary Act of 1789, adopted on the same day that Congress proposed the Bill of Rights to the States for ratification, directed that “upon all arrests in criminal cases, bail shall be admitted except where the punishment may be death.” 1 Stat. 73, 91. 24. Against this backdrop in which the right to bail was presumed, the People ratified the Eighth Amendment, which provides “[e]xcessive bail shall not be required.”
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25. State constitutions, too, have overwhelmingly recognized a right to bail as an option to avoid pre-trial deprivations of liberty. “[E]very state that entered the Union after 1789, except West Virginia and Hawaii, guaranteed a right to bail in its original state constitution.” Donald B. Verrilli, Jr., The Eighth Amendment and the Right to Bail: Historical Perspectives, 82 Colum. L. Rev. 328, 351 (1982).
26. The right to bail is not absolute. Courts may deny bail to a defendant if no amount of money will assure his appearance at trial or the safety of the community. United States v. Salerno, 481 U.S. 739, 746-55 (1987). And legislatures may define categories of crimes, such as capital offenses, or other “special circumstances” in which detention without bail may be permitted. Id. at 749.
27. But outside such “carefully limited” exceptions, id. at 755, the Constitution has always guaranteed a defendant the opportunity to avoid pre-trial deprivations of liberty through non-excessive monetary bail.
B. Bail in New Jersey 28. For more than three centuries, New Jersey recognized the “right of the individual to bail” as “a fundamental right founded in freedom and human dignity, reflected in the everpresent presumption of innocence, and requiring firm articulation in [state] Constitutions.” State v. Johnson, 61 N.J. 351, 355, 360 (1972).
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29. The 1682 Laws of the Province of East Jersey provided that “all persons arrested shall be bailable by sufficient sureties,” with a narrow exception for “capital offenses, where proof is evident or presumption great.” Id. at 354.
30. New Jersey’s 1844 Constitution incorporated that same protection for monetary bail, providing that “[a]ll persons shall, before conviction, be bailable by sufficient sureties, except for capital offences, when the proof is evident or presumption great.” N.J. Const. of 1844, art. I, §10.
31. New Jersey’s 1947 Constitution retained the same longstanding right to bail “by sufficient sureties, except for capital offences, when the proof is evident or presumption great.” Id.; N.J. Const., art. I, §11.
32. Consistent with the historic purpose of bail to ensure the appearance of the defendant at trial, New Jersey for more than three centuries did not permit courts to consider a defendant’s potential dangerousness in setting bail.
C. The Challenged Law 33. In 2012, Governor Christie called for a state constitutional amendment to reverse New Jersey’s historic practice and permit pre-trial detention of defendants deemed likely to commit future crimes. 34. New Jersey’s Chief Justice then established and chaired the Joint Committee on Criminal Justice, which included members from all three branches of state government. In March 2014, the committee produced a report recommending
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that the state authorize pre-trial detention based on a defendant’s perceived dangerousness and that the state replace the traditional system of release on monetary bail with a new “risk-based instrument” that would “aid judges as they craft conditions of release … like electronic monitoring, house arrest, and reporting.” N.J. Judiciary, Report of the Joint Committee on Criminal Justice 2-3 (Mar. 10, 2014), available at http://bit.ly/2pyNFUV (“Joint Committee Report”).
35. Soon after publication of the Joint Committee Report, the New Jersey legislature passed (in a special session, through procedurally deficient mechanisms) and Governor Christie signed the CJRA, which dramatically changed the state’s pretrial detention and release procedures, largely in keeping with the committee’s recommendations. See P.L. 2014, c.31, §1 (codified at N.J.S.A. 2A:162-15 et seq.).
36. The CJRA creates a five-stage, hierachical process for courts to follow in making pre-trial custody determinations for defendants charged with offenses through a complaint-warrant. N.J.S.A. 2A:162-16d(1); see State v. Robinson, No. 078900, 2017 WL 1908548, at *6 (N.J. May 10, 2017) (describing this “hierarchy”).
37. First, the court “shall order” the pre-trial release of the defendant on personal recognizance or execution of an unsecured appearance bond (in essence, a promise to appear) when the court finds that such a release would “reasonably assure the eligible defendant’s appearance in court when required, the protection of the
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safety of any other person or the community, and that the eligible defendant will not
obstruct or attempt to obstruct the criminal justice process.” N.J.S.A. 2A:162-17a.
38. Second, if the court finds at stage one that release on personal
recognizance or an unsecured appearance bond will not provide the requisite
assurance, the court “may order” pre-trial release subject to the conditions that the
defendant “not commit any offense during the period of release … avoid all contact
with an alleged victim of the crime … [and] avoid all contact with” witnesses who
may testify concerning the offense. N.J.S.A. 2A:162-17b(1).
39. The court may then add “the least restrictive condition, or combination
of conditions, that the court determines will reasonably assure the eligible
defendant’s appearance in court when required, the protection of the safety of any
other person or the community, and that the eligible defendant will not obstruct or
attempt to obstruct the criminal justice process.” N.J.S.A. 2A:162-17b(2); see
Robinson, 2017 WL 1908548 at *6. Those conditions “may include,” inter alia:
• remaining “in the custody of a designated person”; • restrictions “on personal associations, place of abode, or travel”; • reporting “on a regular basis to a designated law enforcement” or other
government agency; • complying “with a specified curfew”; • refraining from possessing a firearm; • undergoing medical or psychological treatment; • returning “to custody for specified hours following release for
employment, schooling, or other limited purposes”;
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• placement “in a pretrial home supervision capacity with or without the use of an approved electronic monitoring device,” including at the defendant’s expense; and
• “any other condition” necessary to provide the requisite assurances. N.J.S.A. 2A:162-17b(2).
40. Third, if the court “does not find, after consideration” at stage two of all the conditions described above that release subject to any combination of these conditions “will reasonably assure the eligible defendant’s appearance in court when required,” the court then, and only then, “may order the pretrial release of the eligible defendant on monetary bail.” N.J.S.A. 2A:162-17c(1). In other words, “[m]onetary bail may be set for an eligible defendant only when it is determined that no other conditions of release will reasonably assure the eligible defendant’s appearance in court when required.” N.J.S.A. 2A:162-15 (emphasis added).
41. In addition, the court “may only impose monetary bail … to reasonably assure the eligible defendant’s appearance.” N.J.S.A. 2A:162-17c(1). “The court shall not impose the monetary bail to reasonably assure the protection of the safety of any other person or the community or that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, or for the purpose of preventing the release of the eligible defendant.” Id.
42. Fourth, if the court “does not find, after consideration” that either nonmonetary conditions alone (as assessed at stage two) or monetary bail alone (as
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assessed at stage three) will provide the requisite assurances, the court may order pre-trial release subject to a combination of non-monetary conditions and monetary bail. N.J.S.A. 2A:162-17d(1).
43. Finally, if the prosecutor seeks pre-trial detention and the court finds by “clear and convincing evidence that no amount of monetary bail, non-monetary conditions of pretrial release or combination of monetary bail and conditions would reasonably assure the eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process,” the court can order pre-trial detention. N.J.S.A. 2A:162-18a(1).
44. At every stage, the process includes consideration of the result of a statutorily mandated “risk assessment” conducted with a new “risk assessment instrument” that is purportedly “objective, standardized, and developed based on analysis of empirical data and risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release.” N.J.S.A. 2A:162-25.
45. In November 2014, New Jersey voters approved a constitutional amendment replacing the centuries-old guarantee that “[a]ll persons shall … be bailable by sufficient sureties,” except in some capital cases, with a provision that “[p]retrial release may be denied to a person if the court finds that no amount of
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monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person’s appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process.” N.J. Const. art. I, §11.
46. In sum, the CJRA “changed the landscape of the State’s criminal justice system,” replacing a system that guaranteed a monetary bail determination to all defendants except those in certain capital cases with a system that authorizes pretrial detention based on perceived dangerousness and imposition of severely restrictive conditions such as electronic monitoring and home detention without any opportunity to post monetary bail. Robinson, No. 078900, 2017 WL 1908548, at *4.
47. Defendant Porrino has confirmed that the “Bail Reform Law is intended to end New Jersey’s historical reliance on monetary bail.” Christopher S. Porrino, Attorney General of New Jersey, Attorney General Law Enforcement Directive No. 2016-6, at 55 (Oct. 11, 2016), available at http://bit.ly/2pjHDeP.
48. According to Defendant Porrino, monetary bail is “a last resort” that is reserved only for “limited situations”—i.e., “when the court finds that release on non-monetary conditions will not reasonably assure the defendant’s appearance in court when required.” Id. In other words, “there shall be a presumption against seeking monetary bail.” Id. at 56.
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49. New Jersey’s courts are also instructed to prioritize non-monetary conditions of pre-trial release over monetary bail. Under the New Jersey Rules of Court, a court has no authority to consider monetary bail unless and until it considers and rejects non-monetary pre-trial release options. See, e.g., Rule 3:26-1(a)(1) (“[M]onetary conditions may be set for a defendant but only when it is determined that no other conditions of release will reasonably assure the defendant’s appearance in court when required.”).
50. Criminal defendants subject to non-monetary conditions of release have no authority to challenge the conditions unless “there has been a material change in circumstance that justifies a change in conditions.” Rule 3:26-2(c).
D. The Impact of the Challenged Law 51. New Jersey’s new pre-trial release and detention procedures took effect January 1, 2017. 52. According to the state’s preliminary statistics, in the first three months of 2017, New Jersey courts granted 1,262 pre-trial detention motions from prosecutors—a procedural mechanism that allows detention without the consideration of bail and that did not exist before the new law. N.J. Courts, Criminal Justice Reform Statistics: January 2017-March 2017, Chart A, http://bit.ly/2q68u9Y. 53. According to the same statistics, approximately 7,579 individuals were released subject to non-monetary conditions in the first three months of 2017,
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including 1,286 who were released subject to the most severe conditions including home detention and electronic monitoring. Id.
54. Although New Jersey appears not to have issued official statistics on the number of defendants released on monetary bail under the new law, one prominent newspaper reported that of “the 3,382 cases statewide that were processed in the first four weeks of January, judges set bail only three times.” Lisa W. Foderaro, New Jersey Alters its Bail System and Upends Legal Landscape, N.Y. Times (Feb. 6, 2017), http://nyti.ms/2llmeMR.
55. Thus, while bail remains a theoretical option, “the reality is that judges have nearly done away with it.” Id.; see also Nicole Hong & Shibani Mahtani, Cash Bail, a Cornerstone of the Criminal-Justice System, Is Under Threat, Wall St. J. (May 22, 2017), http://on.wsj.com/2qHz5hb (describing impact on bail industry).
56. Plaintiff Lexington National is one of many commercial sureties that has been severely harmed by the drastic reduction in the number of defendants given the option of monetary bail under the new law.
57. If New Jersey criminal defendants had the option of monetary bail, Plaintiff Lexington National would help them to take advantage of that option.
58. Plaintiff Lexington National thus asserts both its own constitutional rights and those of potential customers. See, e.g., Dep’t of Labor v. Triplett, 494 U.S. 715, 720 (1990).
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E. The Challenged Law Applied to Plaintiff Holland 59. On April 6, 2017, Plaintiff Brittan B. Holland was arrested for his alleged participation in a bar fight. 60. Plaintiff Holland was then detained in the Camden County jail. 61. Plaintiff Holland was charged with second-degree aggravated assault in violation of N.J.S.A. 2C:12-1b(1). 62. Plaintiff Holland has a job and lives in the community. 63. Plaintiff Holland has no prior criminal record. 64. Plaintiff Holland has a supportive family and part-time custody over his son. 65. Under the system of monetary bail that existed in New Jersey for more than three hundred years before January 1, 2017, a court could have set reasonable, non-excessive monetary bail to ensure Plaintiff Holland’s appearance at trial. 66. Under the bail schedules promulgated by the Administrative Office of the Courts, bail likely would have been set at $35,000 to $100,000, with a 10 percent cash bail option. See Revised Statewide Bail Schedules at 23 (Dec. 30, 2016), available at http://bit.ly/2pwj4qy. 67. If bail had been set, Plaintiff Holland would have used his own financial resources and/or those of his family (likely with a surety company such as Plaintiff Lexington National) to pay the required amount for release.
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68. The CJRA barred the court from setting monetary bail unless it first determined that no combination of non-monetary conditions—including highly restrictive conditions such as home detention and electronic monitoring—would reasonably assure Plaintiff Holland’s appearance at trial.
69. Prosecutors initially sought to detain Plaintiff Holland pending trial. 70. Faced with the threat of pre-trial detention and no prospect of release on monetary bail, Plaintiff Holland agreed to accept release subject to several of the most draconian non-monetary conditions, which the court found (unsurprisingly) would ensure his appearance at trial. 71. The court ordered Plaintiff Holland’s release subject to non-monetary conditions including home detention, electronic monitoring through a GPS-tracking ankle bracelet that he must wear 24 hours a day, and regular reporting to pre-trial services—even if the trips would create “work issues.” Hr’g Audio 1:48-1:52, State v. Holland, No. W-2017-390-436 (N.J. Super. Ct. Law Div. Apr. 11, 2017). 72. The court did not—and could not, under the CJRA, court rules, and directives—consider releasing Plaintiff Holland subject to monetary bail. 73. Home detention is a severe restriction of Plaintiff Holland’s liberty. Among other burdens, home detention means that Plaintiff Holland cannot shop for basic necessities such as food.
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74. In addition, Plaintiff Holland cannot participate in important family activities like taking his son to baseball practice—an important aspect of his custodial responsibilities and his efforts to bond with his child.
75. An ankle bracelet—a modern-day scarlet letter—is also a serious deprivation of Plaintiff Holland’s liberty. As one district judge explained, “[r]equired wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person not yet convicted as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans.” United States v. Polouizzi, 697 F. Supp. 2d 381, 389 (E.D.N.Y. 2010).
76. Among other burdens of the ankle bracelet, Plaintiff Holland must endure pain and discomfort from the bulky and heavy device, must sit next to an outlet for multiple hours a day to charge the monitor, may not fly on a commercial airline, cannot swim in a pool, suffers severe social stigma if he exposes his ankle bracelet in public, and automatically transmits every movement in his life to the state. See Riley v. N. J. State Parole Bd., 423 N.J. Super. 224, 240 (App. Div. 2011) (discussing burden of an ankle bracelet); M.M., Living With an Ankle Bracelet, Marshall Project (July 16, 2015), http://bit.ly/2pr3Dnt (same); Maya Schenwar, The Quiet Horrors of House Arrest, Electronic Monitoring, and Other Alternative Forms of Incarceration, Mother Jones (Jan. 22, 2015), http://bit.ly/1GCHoxO.
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77. The United States Supreme Court has unanimously held that requiring a person to wear a GPS electronic monitor constitutes a Fourth Amendment search. Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015) (per curiam).
78. The New Jersey Supreme Court has held that retroactively altering a convicted sex offender’s conditions of sentence to include wearing an ankle bracelet is punitive and violates the Ex Post Facto Clause. See Riley v. N. J. State Parole Bd., 219 N.J. 270 (2014).
79. The requirement to report in person to the pretrial services office is also a restriction on Plaintiff Holland’s liberty. Among other things, the condition interferes with his job because he must perform the in-person reporting even if he has conflicting work obligations.
80. Collectively, the restrictive conditions imposed on Plaintiff Holland are severely disruptive, cause him to worry about his job security, disrupt his family life and relationship with his son, and make him feel that his life is up in the air.
81. Yet under the CJRA, the court was not even allowed to consider the liberty-preserving option of monetary bail before imposing these liberty-restricting conditions on Plaintiff Holland.
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CLASS ACTION ALLEGATIONS A. General Class Action Allegations 82. Plaintiff Holland brings this action, on behalf of himself and all others similarly situated, for the purpose of asserting the claims alleged in this complaint on a common basis. 83. A class action is a superior means, and the only practicable means, by which Plaintiff Holland and unknown class members can challenge New Jersey’s unconstitutional law restricting the liberty of Plaintiff Holland and similarly situated class members without providing the constitutionally required option of monetary bail. 84. This action is brought and may properly be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(2), and 23(b)(3). 85. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a), as well as the predominance and superiority requirements of Rule 23(b)(2) and (b)(3), where applicable. 86. Plaintiff Holland proposes a class seeking declaratory and injunctive relief and a class seeking damages relief. 87. The Declaratory and Injunctive Relief Class is defined as: All New Jersey criminal defendants who are or will be subject to the liberty-restricting
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conditions of pre-trial release permitted by N.J.S.A. 2A:162-17b(2) without having the opportunity to be considered for release on monetary bail.
88. The Damages Class is defined as: All New Jersey criminal defendants who are are or who were (but are no longer) subject to the liberty-restricting conditions of pre-trial release permitted by N.J.S.A. 2A:162-17b(2) without having the opportunity to be considered for release on monetary bail, and who have suffered compensable harm as a result.
B. Rule 23(a)(1): Numerosity 89. The class is so numerous that joinder is impracticable. The most recent available data shows that, in the first three months of 2017, approximately 7,579 individuals in New Jersey’s Pretrial Monitoring System were released subject to non-monetary conditions, including 1,286 who were released subject to the most severe conditions including home detention and electronic monitoring. N.J. Courts, Criminal Justice Reform Statistics at 3, http://bit.ly/2q68u9Y. 90. The vast majority of these individuals were subjected to libertyrestricting conditions of pre-trial release without having the opportunity to be considered for release on monetary bail. 91. The total number of individuals subjected to the challenged law—either in the past, currently, or in the future—will likely number in the tens of thousands.
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C. Rule 23(a)(2): Commonality 92. Common questions of law or fact exist as to all members of the class. 93. All class members seek relief on the common legal question whether New Jersey’s law violates their constitutional rights by subjecting them to libertyrestricting conditions of release without providing them with an opportunity to be considered for release on monetary bail. 94. All class members also present a common factual question in that they were released subject to liberty-restricting conditions without a consideration of bail. 95. All members of the declaratory and injunctive relief class seek relief on the common legal question whether a declaratory judgment and injunctive relief are appropriate relief for the asserted constitutional violation. 96. All members of the damages class seek relief on the common legal question whether damages are available for the asserted constitutional violation. D. Rule 23(a)(3): Typicality 97. Plaintiff Holland’s claims are typical of the claims of other members of the class. 98. Like all members of the class, Plaintiff Holland was released subject to liberty-restricting conditions without having the opportunity to be considered for release on monetary bail.
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99. Like all members of the class, Plaintiff Holland claims that New Jersey’s law barring consideration of monetary bail before imposing libertyrestricting conditions violates his constitutional rights.
100. Like all members of the declaratory and injunctive relief class, Plaintiff Holland seeks a declaratory judgment that the law is unconstitutional and an injunction preventing New Jersey from enforcing it.
101. Like all members of the damages class, Plaintiff Holland suffered compensable harm as a result of the liberty-restricting conditions imposed on him and seeks damages to remedy that harm.
102. There is nothing distinctive about Plaintiff Holland’s claim for declaratory relief, injunctive relief, or damages that would lead to a different result in his case than in any case involving other class members.
E. Rule 23(a)(4): Adequacy 103. Plaintiff Holland is an adequate representative of the class because his interest in the vindication of his constitutional rights is entirely aligned with the interests of the other class members, each of whom has the same constitutional claims. 104. Plaintiff Holland is a member of the class, and his interests do not conflict with those of the other class members with respect to any claims.
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105. Plaintiff Holland is represented by attorneys from Kirkland & Ellis LLP and Robinson Miller LLC, who have extensive experience litigating complex civil rights matters in federal court and detailed knowledge of New Jersey’s law and other relevant issues.
106. Class counsel has undertaken a detailed investigation of New Jersey’s policies, practices, and procedures as they relate to federal constitutional requirements.
107. Class counsel has developed and continues to develop relationships with Plaintiff Holland and others similarly situated. The interests of the members of the class will be fairly and adequately represented by Plaintiff Holland and his attorneys.
F. Rule 23(b)(2): Declaratory and Injunctive Relief Class 108. A class action is appropriate for the declaratory and injunctive relief class under Rule 23(b)(2) because New Jersey has acted on grounds that apply generally to the class—namely the new statute forbidding consideration of monetary bail if any combination of non-monetary conditions would reasonably assure a defendant’s appearance at trial. 109. The class seeks declaratory and injunctive relief to enjoin enforcement of the unconstitutional provisions of the statute. That relief will necessarily apply to every member of the class and is thus appropriate respecting the class as a whole.
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110. Class status is particularly appropriate because there is an acute risk that any individual class member’s claim for declaratory and injunctive relief will become moot before the litigation is finally resolved.
G. Rule 23(b)(3): Damages Class 111. A class action is appropriate for the damages class under Rule 23(b)(3) because questions of law or fact common to class members predominate over any questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. 112. The predominant question in the case is whether the provisions of the CJRA allowing liberty-restricting conditions of release to be imposed without consideration of monetary bail is consistent with the Constitution. This question of law and the most important questions of fact—that the class members were subjected to liberty-restricting conditions without consideration of bail—are common to all members of the class. These questions predominate over any questions affecting only individual members, such as potential variations in damages. 113. A class action is a superior mechanism for fairly and efficiently adjudicating the controversy because individual damage claims are likely to be relatively small, which would severely limit any individual class member’s ability to obtain relief (especially considering that many class members are unlikely to be able to retain attorneys to pursue their small civil claims).
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114. A class action is also superior because litigating thousands of individual damages claims would be unnecessarily burdensome for the state and the courts and could produce unfair and inconsistent results.
115. Individual members of the damages class do not have a strong interest in controlling the prosecution of separate lawsuits. See Fed. R. Civ. P. 23(b)(3)(A). To the contrary, given the small claims at issue, they are unlikely to obtain any relief at all without aggregation. And the class members’ interests are wholly aligned with Plaintiff Holland’s. Finally, class counsel is highly experienced and competent to represent the members’ individual and collective interests.
116. Class counsel is not aware of any other pending litigation on the same issue. See Fed. R. Civ. P. 23(b)(3)(B).
117. It is desirable to concentrate this litigation in the District of New Jersey because the lawsuit concerns the constitutionality of a New Jersey law, all of the operative events take place in New Jersey, and any relevant evidence is likely to be found in New Jersey. See Fed. R. Civ. P. 23(b)(3)(C).
118. Class litigation would be manageable. The Class is not so large as to be unwieldy, common questions predominate over individual issues, the Class is geographically concentrated, and aggregation will not present any difficulties related to notice. See Fed. R. Civ. P. 23(b)(3)(D).
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COUNT ONE VIOLATION OF RIGHT TO BAIL (Eighth and Fourteenth Amendments) 119. Plaintiffs hereby re-allege and incorporate by reference the allegations in paragraphs 1-118. 120. The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 121. The Supreme Court has stated and the Third Circuit has held that the Eighth Amendment protection against excessive bail applies to the States. See McDonald v. City of Chicago, 561 U.S. 742, 764 n.12 (2010); Sistrunk v. Lyons, 646 F.2d 64, 71 (3d Cir. 1981). 122. The Eight Amendment’s protection against “excessive bail” has always been understood to refer to monetary bail. See, e.g., Salerno, 481 U.S. at 754 (“bail must be set by a court at a sum designed to ensure” statutory objective) (emphasis added); Stack, 342 U.S. at 5 (describing bail as a “bond or the deposit of a sum of money subject to forfeiture”) (emphasis added). 123. The Eighth Amendment protection against pre-trial deprivation of liberty through “[e]xcessive bail” necessarily implies the option of bail to avoid a pre-trial deprivation of liberty in the first place, just as the Sixth Amendment right to a speedy trial implies the option of a trial. Otherwise, the prohibition on excessive bail could be rendered superfluous by denying bail in all cases.
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124. The only way to give meaning to the Eighth Amendment protection against excessive bail is to recognize the logically antecedent “right to bail before trial.” Stack, 342 U.S. at 4; see United States v. Motlow, 10 F.2d 657, 659 (7th Cir. 1926) (Butler, Circuit J.) (Eighth Amendment “implies, and therefore safeguards, the right to give bail”); Sistrunk, 646 F.3d at 70 n.23 (“The constitutional right to be free from excessive bail thus shades into a protection against a denial of bail.”).
125. In other words, the Eighth Amendment “bail clause should be interpreted to protect and ratify the … right to bail as a fundamental principle of American criminal jurisprudence.” Verrilli, Right to Bail, 82 Colum. L. Rev. at 354.
126. Although a court may deny bail when no amount of money will reasonably assure the defendant’s presence at trial or when releasing the defendant would endanger the community, the Eighth Amendment requires that the option of bail remain available before a defendant is deprived of pre-trial liberty outside such “carefully limited exception[s].” Salerno, 481 U.S. at 753-55.
127. The CJRA violates the Eighth Amendment by permitting judges to consider monetary bail “only when it is determined that no other conditions of release will reasonably assure the eligible defendant’s appearance in court when required.” N.J.S.A. 2A:162-15; see N.J.S.A. 2A:162-17c(1).
128. Moreover, because the permissible “conditions of release” that courts must consider before offering monetary bail include extremely restrictive conditions
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like electronic monitoring and home detention, the law not only subordinates monetary bail to other conditions (which are not constitutionally protected), but effectively takes monetary bail off the table as an option entirely.
129. New Jersey’s law is unprecedented. Even jurisdictions like the District of Columbia, where monetary bail does not exist as a practical matter, do not formally subordinate bail to other, more restrictive conditions in the way that New Jersey does. See D.C. Code §23-1321(c)(1)(B)(xiii) (allowing consideration of monetary bail alongside other conditions).
130. By imposing substantial deprivations of pre-trial liberty on Plaintiff Holland and other presumptively innocent defendants without offering the option of non-excessive bail to assure their appearance at trial, Defendants violate Plaintiffs’ Eighth Amendment rights.
131. Defendants’ violation of Plaintiffs’ Eighth Amendment rights has caused them substantial damages.
COUNT TWO DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS OF LAW
(Fourteenth Amendment) 132. Plaintiffs hereby re-allege and incorporate by reference the allegations in paragraphs 1-131. 133. The Fourteenth Amendment Due Process Clause provides that no State shall “deprive any person of life, liberty, or property, without due process of law.”
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134. The Due Process Clause’s protection of “liberty” has “always … been thought to encompass freedom from bodily restraint and punishment.” Ingraham v. Wright, 430 U.S. 651, 673-74 (1977).
135. The protection against bodily restraint includes not only freedom from “government custody, detention, or other forms of physical restraint,” Zadvydas v. Davis, 533 U.S. 678, 690 (2001), but also “the right to move freely about one’s neighborhood or town,” Lutz v. City of York, 899 F.2d 255, 268 (3d Cir. 1990); see also 1 William Blackstone, Commentaries *134 (“personal liberty consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law”).
136. The Due Process Clause’s protection of liberty applies to criminal defendants awaiting trial, who “remain clothed with a presumption of innocence and with their constitutional guarantees intact.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc).
137. Under the Due Process Claus, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Salerno, 481 U.S. at 755.
138. As a “general rule,” therefore, “the government may not detain a person prior to a judgment of guilt in a criminal trial.” Id. at 749.
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139. By subjecting Plaintiff Holland and other presumptively innocent criminal defendants to restrictive conditions of release, including home detention and GPS monitoring through an ankle bracelet, Defendants intrude on the constitutionally protected right to liberty—“freedom from bodily restraint.” Ingraham, 430 U.S. at 674.
140. “Every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, … and when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is.” Wallace v. Kato, 549 U.S. 384, 388-89 (2007) (quotation marks omitted).
141. By imposing liberty-restricting conditions on Plaintiff Holland and other presumptively innocent criminal defendants without offering them the historically-required option of non-excessive monetary bail that would reasonably assure their appearance at trial and protect the community, Defendants violate the procedural component of the Due Process Clause.
142. Defendants also violate Plaintiffs’ substantive rights under the Due Process Clause because the option of non-excessive bail for a bailable offense is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald, 561 U.S. at 767.
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143. The Supreme Court has held that bail is “basic to our system of law,” Schilb, 404 U.S. at 365, and a “constitutional privilege” to which pre-trial defendants are “entitled,” United States v. Barber, 140 U.S. 164, 167 (1891).
144. The Supreme Court has equated the “traditional right to freedom before conviction” with the “right to bail before trial.” Stack, 342 U.S. at 4.
145. The Third Circuit has similarly held that “bail constitutes a fundament of liberty underpinning our criminal proceedings” that “has been regarded as elemental to the American system of jurisprudence.” Sistrunk, 646 F.2d at 70.
146. Likewise, bail is deeply rooted in this Nation’s history and tradition. The right to bail predates the Constitution, having been recognized in the Massachusetts Body of Liberties in 1641 and other fundamental documents of the Founding Era; having been protected by federal law since the Northwest Ordinance of 1787 and the Judiciary Act of 1789; and having been protected in the overwhelming majority of state constitutions.
147. The right to bail enjoys a historical pedigree that is as wellestablished—if not more so—than other rights protected by the Due Process Clause. For example, when the Fourteenth Amendment was ratified in 1868, 22 of 37 state constitutions included the right to keep and bear arms that the Supreme Court found protected by the Due Process Clause in McDonald, 561 U.S. at 777. An even greater number—29 state constitutions—protected a right to bail. See Matthew J.
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Hegreness, America’s Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 934-35 (2013).
148. In sum, if a defendant’s right to be free from restrictions on his liberty without first being offered the option of non-excessive monetary bail is not directly protected by the Eighth Amendment, it must be protected by the Due Process Clause of the Fourteenth Amendment.
149. Defendants’ violation of Plaintiffs’ rights under the Due Process Clause has caused them substantial damages.
COUNT THREE UNREASONABLE SEARCH AND SEIZURE
(Fourth and Fourteenth Amendments) 150. Plaintiffs hereby re-allege and incorporate by reference the allegations in paragraphs 1-149. 151. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” 152. The Fourth Amendment applies against the States through the Fourteenth Amendment. See, e.g., Camara v. Mun. Ct. of City & Cty. of S.F., 387 U.S. 523, 528 (1967). 153. Subjecting a person to a GPS-tracking electronic monitor constitutes a Fourth Amendment “search.” Grady, 135 S. Ct. at 1369.
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154. Likewise, pre-trial release conditions such as home detention and mandatory reporting to pre-trial services constitute a Fourth Amendment “seizure.” United States v. Jacobsen, 466 U.S. 109, 113 n.5 (1984) (a “meaningful interference, however brief, with an individual’s freedom of movement” is a seizure).
155. A criminal defendant who has been released before trial “does not lose his or her Fourth Amendment right to be free of unreasonable” searches and seizures. United States v. Scott, 450 F.3d 863, 868 (9th Cir. 2006).
156. Moreover, a defendant’s consent to Fourth Amendment searches or seizures as a condition of release does not immunize the restrictions from constitutional scrutiny. Id. at 866.
157. The reasonableness of a Fourth Amendment search or seizure is determined “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300 (1999).
158. The degree to which the search and seizure, particularly the 24-hour GPS electronic monitoring through an ankle bracelet, intrudes on Plaintiff Holland’s privacy is severe. Not only does the ankle bracelet severely restrict Plaintiff’s freedom of movement—requiring him, for example, to stay within cord-length of a power outlet while the device is charging for multiple hours a day and preventing
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him from traveling on a commercial airplane—but the device also discloses a massive amount of private information about Plaintiff Holland’s life to the state.
159. “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).
160. The intrusion on Plaintiff’s privacy is particularly severe because it reaches into his home, where his interest in privacy is “at its zenith.” Scott, 450 F.3d at 871; see United States v. Karo, 468 U.S. 705, 714 (1984).
161. On the other side of the balance, Defendants cannot show that intrusive electronic monitoring of the kind imposed on Plaintiff Holland is “needed for the promotion of” their “legitimate governmental interest[]” in securing his appearance at trial when state law prohibited consideration of a less restrictive mechanism that has been used to promote precisely that governmental interest for almost the entire history of Anglo-American law: monetary bail. Houghton, 526 U.S. at 300 (emphasis added).
162. It is particularly unreasonable to prohibit consideration of monetary bail to fulfill the state’s legitimate governmental interest when monetary bail is protected by the Constitution.
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164. Defendants’ violation of Plaintiffs’ Fourth Amendment rights has caused them substantial damages.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: A. Enter judgment in their favor; B. Certify a class as described above, pursuant to Plaintiff Holland’s forthcoming class certification motion; C. Declare that the CJRA violates the Eighth Amendment right of Plaintiff Holland and other presumptively innocent criminal defendants to the option of nonexcessive monetary bail that will reasonably assure their appearance at trial before being subjected to severe restrictions of their pre-trial liberty; D. Declare that the CJRA violates the procedural and substantive due process rights of Plaintiff Holland and other presumptively innocent criminal defendants to the option of non-excessive monetary bail that will reasonably assure their appearance at trial before being subjected to severe restrictions of their pre-trial liberty; E. Declare that the CJRA violates the Fourth Amendment rights of Plaintiff Holland and other presumptively innocent criminal defendants to be free from unreasonable searches and seizures;
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F. Enter a preliminary injunction preventing Defendants and their agents from enforcing the provisions of the CJRA that allow them to impose severe restrictions on the pre-trial liberty of Plaintiff Holland and other presumptively innocent criminal defendants without offering the option of non-excessive monetary bail that will reasonably assure their appearance at trial;
G. Enter a permanent injunction preventing Defendants and their agents from enforcing the provisions of the CJRA that allow them to impose severe restrictions on the pre-trial liberty of Plaintiff Holland and other presumptively innocent criminal defendants without offering the option of non-excessive monetary bail that will reasonably assure their appearance at trial;
H. Award Plaintiffs damages to compensate for the injuries they have suffered as a result of Defendants’ unconstitutional conduct;
I. Award Plaintiffs the costs of their suit, including attorney fees and costs, pursuant to 42 U.S.C. §1988;
J. Grant any other and further relief that the Court deems just and proper.
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JUSTIN T. QUINN ROBINSON MILLER LLC One Newark Center 19th Floor Newark, NJ 07102 973-690-5400

Respectfully submitted,
s/Michael F. Williams PAUL D. CLEMENT* MICHAEL F. WILLIAMS CHRISTOPHER G. MICHEL* ANDREW C. LAWRENCE* KIRKLAND & ELLIS LLP 655 Fifteenth Street, NW Washington, DC 20005 (202) 879-5000 michael.williams@kirkland.com

Counsel for Plaintiffs * Pro hac vice motions to be filed.

June 14, 2017

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 Case 1:17-cv-04317-JBS-KMW Document 18-2 Filed 07/28/17 Page 1 of 43 PageID: 165

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

BRITTAN B. HOLLAND, individually and on behalf of all others similarly situated, and LEXINGTON NATIONAL INSURANCE CORPORATION;
Plaintiffs,

Case No. 1:17-cv-04317 (JBS-KMW)

v.

KELLY ROSEN, Pretrial Services Team Leader; MARY E. COLALILLO, Camden County Prosecutor; CHRISTOPHER S. PORRINO, Attorney General of New Jersey;

Honorable Jerome B. Simandle, U.S.D.J.

Defendants.

BRIEF OF PROPOSED AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, DRUG POLICY ALLIANCE, LATINO ACTION NETWORK, AND
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP)

Alexander Shalom Edward L. Barocas Rebecca Livengood Jeanne LoCicero American Civil Liberties Union
of New Jersey Foundation P.O. Box 32159 Newark, New Jersey 07102 (973) 854-1714

Andrea Woods* Brandon J. Buskey* Criminal Law Reform Project American Civil Liberties Union Foundation 125 Broad St., 18th Floor New York, NY 10004

Counsel for Proposed Amici Curiae

*pro hac vice pending

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TABLE OF CONTENTS
TABLE OF AUTHORITIES..........................................iii PRELIMINARY STATEMENT...........................................1
BACKGROUND......................................................3
INTEREST OF AMICI...............................................7
ARGUMENT........................................................9
I. PLAINTIFF LEXINGTON NATIONAL LACKS STANDING...............10
A. Lexington Does Not Assert Violations of Its Own Constitutional Rights. .................................11
B. Lexington Cannot Satisfy the Requirements of ThirdParty Standing. ........................................12
1. Even if the Constitution Provided a Right to Money Bail, it Does Not Provide a Right to a Commercial Bail Bond. .............................13
2. As a Result, Lexington National Lacks Standing Under the Third-Party Standing Doctrine. ..........17
II. COURTS ARE PERMITTED TO CONSIDER DANGEROUSNESS IN SETTING TERMS OF RELEASE..................................20
III. MONEY BAIL DOES NOT PROTECT PUBLIC SAFETY AND RESULTS IN DISPROPORTIONATE HARM..................................24 A. No Credible Evidence Suggests That the Use of Money Bail Contributes to Public Safety. .....................24
B. Money Bail has a Demonstrated History of Harmful, Discriminatory Impact ..................................28
IV. WHERE COURTS SEEK TO PROTECT PUBLIC SAFETY, THEY NEED NOT OFFER CRIMINAL DEFENDANTS AN OPPORTUNITY TO PURCHASE THE ABILITY TO AVOID SUPERVISION..........................31
CONCLUSION.....................................................34

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Cases

TABLE OF AUTHORITIES

Ashcroft v. Iqbal, 556 U.S. 662 (2009).........................10

Barrows v. Jackson, 346 U.S. 249 (1953)........................18

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)............10

Benboe v. Carroll, 494 F. Supp. 462 (W.D. Ky. 1977)............16

Burks v. Scott County, Miss., 3:14-cv-00745-HTW-LRA (S.D. Miss. June 27, 2017)...........................................28

Burton v. Tomlinson, 527 P.2d 123 (Or. Ct. App. 1974).......14-15

Craig v. Boren, 429 U.S. 190 (1976)............................19

Dep’t of Labor v. Triplett, 494 U.S. 715 (1990).............11-18

Edwards v. Lexington County Sheriff’s Dep’t, 688 S.E.2d 125 (S.C. 2010)....................................................32

Eisenstadt v. Baird, 405 U.S. 438 (1972).......................19

Griswold v. Connecticut, 381 U.S. 479 (1965)...................19

Hedges v. United States, 404 F.3d 744 (3d Cir. 2005)...........10

Johnson Bonding Co. v. Kentucky, 420 F. Supp. 331 (E.D. Ky. 1976).........................................11-12, 16

Kahn v. McCormack, 299 N.W.2d 279 (Wis. Ct. App. 1980)......16-17

ODonnell v. Harris Cty., --- F. Supp. 3d ---, 2017 WL 1735456 (S.D. Tex. Apr. 28, 2017)...................................28-29

Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978)...............28

Rodriguez v. Providence Cmty. Corr., 155 F. Supp. 3d 758 (M.D. Tenn. Dec. 17, 2015)...........................................29

S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371 (3d Cir. 1992)..................................................9

Schilb v. Kuebel, 404 U.S. 357 (1971).......................15-16

iii

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Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 (1984) 13 Spinks v. State, 2007 Ind. App. Unpub. LEXIS 1802 (Ind. Ct. App. July 3, 2007).............................................32 Stack v. Boyle, 342 U.S. 1 (1951).......................20-21, 33 State v. Blake, 642 So. 2d 959 (Ala. 1994) ....................29 State v. Korecky, 169 N.J. 364 (2001)..........................23 State v. Siford, 2003-Ohio-1588, P2-P3, 2003 Ohio App. LEXIS 1522 (Ohio Ct. App., Geauga County Mar. 28, 2003)..............32 State v. Steele, 430 N.J. Super. 24 (N.J. Super. Ct. App. Div. 2013).....................................................23 Stephens v. Bonding Asso. of Kentucky, 538 S.W.2d 580 (Ky. 1976).....................................................16 Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969).....18 Thompson v. Moss Point, 2015 WL 10322003 (S.D. Miss. Nov. 6, 2015)......................................29 United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008)................................................33 United States v. Cachucha, 778 F. Supp. 2d 1172 (D.N.M. 2011)..................................................31 United States v. Chaplin's, Inc., 646 F.3d 846 (11th Cir. 2011) ..............................................12 United States v. Farris, 2008 U.S. Dist. LEXIS 36937 (W.D. Pa. May 1, 2008)........................................22, 31-32 United States v. Gatto, 750 F. Supp. 664 (D.N.J. 1990).........22 United States v. Giampa, 755 F. Supp. 665 (W.D. Pa. 1990)......22 United States v. Norman, 2014 U.S. Dist. LEXIS 107976 (E.D. Pa. Aug. 6, 2014)..............................................22 United States v. Payner, 447 U.S. 727 (1980)...................13
iv

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United States v. Perry, 788 F.2d 100 (3d Cir. 1986)............20 United States v. Salerno, 481 U.S. 739 (1987)...........20-21, 32 United States ex rel. Savitz v. Gallagher, 800 F. Supp. 228 (E.D. Pa. 1992)................................................22 Walker v. City of Calhoun, No. 4:15-CV-0170-HLM (N.D. Ga. June 16, 2017).................................................29 Statutes, Rules and Regulations 18 U.S.C. § 3142(a)–(b)........................................26 20 CFR § 725.362 (1989)........................................18 20 CFR § 725.363(a) (1989).....................................18 30 U.S.C. § 932(a).............................................18 Burns Ind. Code Ann. § 35-46-1-15.1(a)(5)......................32 Fla. Stat. § 903.047 ..........................................32 F.R.C.P. 12(b)(6)...............................................9 F.R.C.P. 23(a)(3)..............................................34 N.J.S.A. 2A:162-16b(2)(b)......................................31 N.J.S.A. 2A:162-17b(2).........................................33 N.J.S.A. 2A:162-19..............................................6 N.J.S.A. 2C:12-1b(1)............................................5 ORS § 135.265..................................................14 R. 2:2-4 .....................................................34 R. 3:26-1(a) (effective Sept. 1, 2013).........................23 R. 3:26-2(c)(2)................................................34
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Other Authorities ABA Standard 10-5.3(a) (commentary)........................... 24 Charles V. Bagli and Kevin Flynn, NEW YORK TIMES, “Durst Jumps Bail, and a Nationwide Dragnet Is On,” (Oct. 17, 2001).........24 Kristen Bechtel, et. al., Dispelling the Myths: What Policymakers Need to Know About Pretrial Research, Pretrial Justice Institute (Nov. 2012)..................................27 Michael K. Block, The Effectiveness and Cost of Secured and Unsecured Pretrial Release in California’s Large Urban Counties, 1990-2000 (2005).....................................27 John S. Boyle, Bail Under the Judicial Article, 17 DE PAUL L. REV. 267 (1968) ................................................16 Bureau of Justice Statistics, Data Risk Advisory: State Court Processing Statistics Data Limitations, March 2010.............27 Thomas H. Cohen & Brian A. Reaves, U.S. Dep’t of Justice, Bureau of Justice Statistics, Pretrial Release of Felony Defendants in State Courts (2007)..............................26 Color of Change & ACLU, Selling off our Freedom: How Insurance Corporations Have Taken Over Our Bail System, May 2017.........17 Caleb Foote, The Coming Constitutional Crisis in Bail: I and II, 113 UNIV. PA. L. REV. 959 ...................................14 Marvin D. Free, Jr., Race and Presentencing Decisions: The Cost of Being African American, in Racial Issues in Criminal Justice: The Case of African Americans 137 (Marvin D. Free, Jr. Ed., 2003).................................................30 Matthew Friedman, et. al., Crime Trends: 1990-2016, THE BRENNAN CENTER FOR JUSTICE (Apr. 18. 2017) ................................25
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Jeff Goldman, NJ.com, “Bloody bar fight over Eagles leads to arrest of father, son” April 7, 2017............................6
Hon. Glenn A. Grant, CRIMINAL JUSTICE REFORM, REPORT TO THE LEGISLATURE, JAN. 1, 2015 – DEC. 31, 2015 .........................3-5
Paul Heaton, et. al., The Downstream Consequences of Misdemeanor Pretrial Detention (July 2016).....................28
Helland & Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, Journal of Law & Economics, April 2004).........................................27
Cynthia E. Jones, “Give us Free”: Addressing Racial Disparities in Bail Determinations, 16 LEGISLATION & PUB. POL'Y 919 (2013)..................................................29-30
Michael R. Jones, Pretrial Justice Inst., Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option (Oct. 2013).............................................24-25, 27
Krahl & New Direction Strategies, An Analysis of the Financial Impact of Surety Bonding on Aggregate and Average Detention Costs and Cost Savings in the State of Florida for 2010 (2011)................................................27
Jason Lydon et al., Black & Pink, Coming out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey (2015)..................................................30
Robert G. Morris, Pretrial Release Mechanisms in Dallas County, Texas (Jan. 2013)......................................27
Pretrial Justice Institute, Race & Bail in America.............30
Pretrial Services Agency for the District of Columbia, Research and Data, Performance Measures.....................25-26
Rational and Transparent Bail Decision Making, Pretrial Justice Institute and the MacArthur Foundation (March 2012)....14
Timothy R. Schnacke, et al., The History of Bail and Pretrial Release (Sept. 23, 2010).......................................14
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Case 1:17-cv-04317-JBS-KMW Document 18-2 Filed 07/28/17 Page 8 of 43 PageID: 172 Marie VanNostrand, Ph.D. and Gena Keebler, Pretrial Risk Assessment in the Federal Court (April 14, 2009)...............26 Marie VanNostrand, Ph.D., NEW JERSEY JAIL POPULATION ANALYSIS (March 2013)....................................................3
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PRELIMINARY STATEMENT This brief is submitted on behalf of proposed amici curiae American Civil Liberties Union, American Civil Liberties Union of New Jersey, Drug Policy Alliance, Latino Action Network, and National Association for the Advancement of Colored People – New Jersey State Conference (amici) in support of Defendants’ motion to dismiss and in opposition to Plaintiffs’ motion for a preliminary injunction. Amici are civil rights organizations concerned with the individual rights of criminal defendants. Amici believe that increased reliance on money bail is neither constitutionally required nor desirable. Amici work to protect the statutory and constitutional rights of criminal defendants, including Plaintiff Holland, to be released on the least restrictive conditions possible, but acknowledge that those conditions must be able to achieve all of the permissible goals of pretrial release conditions. In this case, Plaintiffs imagine a right to money bail implicit in the Eighth Amendment and in so doing ignore the role that conditions of release can play in ensuring the protection of the community. Indeed, in an effort to obtain third-party standing on behalf of Lexington National Insurance Corporation (“Lexington National”), Plaintiffs implicitly argue that there is not only a constitutional right to money bail, but also a right to a commercial bail bond. As several states have recognized, no such
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right is enshrined in the United States Constitution. Because there exists no right to use a commercial entity to post a bail bond, Lexington National cannot demonstrate that criminal defendants have a legal entitlement to form a relationship with Lexington National or other bonding companies and therefore cannot satisfy the requirements of third-party standing.
The Eighth Amendment does not provide a right to money bail. New Jersey’s Criminal Justice Reform Act (“CJRA”), like many other pretrial justice schemes around the country, including the federal system, allows consideration of dangerousness in setting terms of release. Three decades ago the United States Supreme Court approved of the consideration of public safety in making release and detention decisions in the federal system. In the intervening years, many jurisdictions have followed suit without offending the Eighth Amendment. New Jersey’s system, which requires that conditions of release be the least restrictive conditions that achieve the purposes of the statute, does not offend the Eighth Amendment.
There is no evidence that the posting of money bail achieves the public safety results that the court sought to achieve in Plaintiff Holland’s case.
Finally, if Plaintiffs’ fundamental contention – that a criminal defendant who is not ordered detained has a right to pay money bail to avoid a pre-trial deprivation of liberty in the first
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place – were correct, courts could never impose conditions like no-contact orders without giving a criminal defendant the opportunity to purchase the ability to contact witnesses or victims. Such a result is plainly untenable.
BACKGROUND In March 2013, the Drug Policy Alliance released a study that confirmed what many New Jersey state court criminal law practitioners had known for a long time: New Jersey’s jails were filled with low-risk pretrial detainees who sat in jail simply because they lacked small amounts of money necessary to secure release. Marie VanNostrand, Ph.D., NEW JERSEY JAIL POPULATION ANALYSIS (March 2013) available at: https://www.pretrial.org/ download/research/New%20Jersey%20Jail%20Population%20Analysis%20 -%20VanNostrand%202013.pdf. Specifically, the study revealed that on a single day more than 5,000 people were in New Jersey jails, eligible for release on bail but remaining in custody, solely due to a lack of resources. Id. at 13. The report also showed the disparate impact on people of color: 71% of the population in New Jersey jails was composed of Black and Latino people. Id. Twelve percent of the population (more than 1,500 people) was held because of their inability to pay $2,500 or less. Id. Prompted by that report, among other things, in the summer of 2013, New Jersey Supreme Court Chief Justice Stuart Rabner established and chaired a special committee of the Supreme Court,
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the Joint Committee on Criminal Justice (“JCCJ”), which included the Attorney General, the Public Defender, private attorneys, judges, court administrators, and representatives of the Legislature and the Governor’s Office. Hon. Glenn A. Grant, CRIMINAL JUSTICE REFORM, REPORT TO THE LEGISLATURE, JAN. 1, 2015 – DEC. 31, 2015, available at: http://www.njcourts.gov/courts/assets/criminal/ 2015cjrannual.pdf. The JCCJ was tasked with examining issues relating to bail and the right to a speedy trial to determine if reforms were needed. Drawing on data from the Administrative Office of the Courts, the JCCJ determined that New Jersey’s wealth-based bail system, in which defendants must pay for their release, risks a “dual system error,” in that it leads to a system in which poor defendants who pose little risk to the community are unable to pay for release, while more dangerous individuals who have more substantial resources remain in the community. Id. at 26.
After a period of study of New Jersey’s existing system as well as systems that had implemented risk-based pretrial practices, the Committee concluded that reducing the number of pretrial detainees through the use of a more objective risk-based approach could lead to substantial cost savings, as well as a “society that is freer, fairer and safer.” Id. at 12. The JCCJ ultimately recommended significant changes to the criminal justice system. The recommendations, memorialized in a March 2014 report, “represented the most comprehensive set of proposed reforms to the
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state’s criminal justice system since the adoption of the 1947 constitution.” Id. at 1.
Specifically, the JCCJ recommended a shift from the wealthbased system of pretrial detention and release to a risk-based system, the creation of a system of pretrial supervision, the approval of preventive detention in rare circumstances where no condition or set of conditions could adequately protect the public and ensure that a defendant would appear in court, and the enactment of a statutory speedy trial scheme. Id. at 9.
Building on the JCCJ Report, in the summer of 2014 the Legislature passed and the Governor signed groundbreaking bail reform and speedy trial legislation – the CJRA – that adopts many of the recommendations of the JCCJ, which took effect on January 1, 2017. In November 2014, New Jersey voters approved a constitutional amendment, which also took effect on January 1, 2017, to allow certain defendants to be detained pretrial without bail.
Less than four months into the new pretrial justice scheme, Plaintiff Brittan Holland was arrested and charged with seconddegree aggravated assault, N.J.S.A. 2C:12-1b(1). Compl. ¶ 7. According to press accounts, police arrested Holland for his alleged role in the beating of a 36-year-old man that rendered the man unconscious, with a head injury and multiple facial fractures. Jeff Goldman, NJ.com, “Bloody bar fight over Eagles leads to arrest
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of father, son” April 7, 2017, available at: http://www.nj.com/camden/index.ssf/2017/04/2_arrested_after_bloo dy_bar_fight_among_eagles_cow.html.
Plaintiff Holland was arrested and brought to the Camden County Correctional Facility. Compl. ¶ 60. Prosecutors sought to detain Holland pursuant to N.J.S.A. 2A:162-19. Id. at ¶ 69. Before the trial court determined the appropriateness of detention, Plaintiff Holland, who was represented by counsel, agreed to certain conditions of release; in exchange, the State agreed not to seek detention. Id. at ¶¶ 60-70. Consequently, the trial court ordered Plaintiff Holland released subject to home detention and electronic monitoring through a GPS-tracking device. Id. at ¶ 70.
Plaintiff did not challenge the conditions of release in state court. Instead, he filed this class-action challenge to the CJRA. In addition to the challenge raised by Plaintiff Holland, Plaintiff Lexington National challenges the CJRA, contending that it has standing because under a money bail system “Plaintiff Holland would have used . . . financial resources . . . (likely with a surety company such as Plaintiff Lexington National) to pay the required amount for release.” Id. at ¶ 67. Plaintiffs sought a preliminary injunction. Id. at p. 40. Defendants opposed the issuance of the preliminary injunction and will file a motion to dismiss the Complaint. Document 14 (scheduling order).
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INTEREST OF AMICI Amici are civil rights organizations committed to the rights of criminal defendants, all of which believe that New Jersey’s transition away from money bail promotes fairness while sufficiently protecting individual rights by ensuring that conditions of release are no more onerous than necessary. The American Civil Liberties Union The American Civil Liberties Union is a nationwide, nonprofit, nonpartisan organization with more than 1.6 million members dedicated to the principles of liberty and equality embodied in the Constitution and the Nation’s civil rights laws. Since its founding in 1920, the American Civil Liberties Union has appeared in numerous cases before state supreme courts, both as counsel representing parties and as amicus curiae. The American Civil Liberties Union of New Jersey is the state affiliate of the American Civil Liberties Union. The ACLU-NJ was founded in 1960 and has more than 40,000 members in New Jersey. The ACLU-NJ was involved in the legislative process and continues to work to ensure the reform is fairly implemented. The Drug Policy Alliance is a nonprofit advocacy organization that works to advance policies that are grounded in science, compassion, health and human rights. DPA has a strong interest in protecting the rights of all New Jerseyans and in maintaining a fair and safe criminal justice system. In 2013, the DPA published
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a New Jersey jail population analysis that spurred conversations about bail reform in the state. The organization was involved in the legislative process and continues to work to ensure the reform is fairly implemented.
The New Jersey Latino Action Network is a grassroots organization composed of individuals and organizations that are committed to engaging in collective action at the local, state and national level in order to advance the equitable inclusion of the diverse Latino community in all aspects of American society. The organization was involved in the legislative process and continues to work to ensure the reform is fairly implemented.
The National Association for the Advancement of Colored People – New Jersey State Conference is the State conference of the nation’s oldest and largest Civil Rights organization in the country. It is committed to equality and justice for all. The organization was involved in the legislative process and continues to work to ensure the reform is fairly implemented.
Amici had long recognized that New Jersey’s pretrial release and speedy trial mechanisms were broken and amici therefore were – and are – stalwart supporters of the CJRA. Amici recognized that New Jersey’s failed systems of pretrial release and speedy trial disproportionately impacted communities of color throughout New Jersey and therefore view the CJRA as a statute that can ensure that the criminal justice system becomes more racially just. Fixing
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New Jersey’s criminal justice system and fighting racial injustice are core institutional missions of all amici.
Individually and collectively, amici have participated on the JCCJ, testified before legislative bodies, provided testimony on proposed New Jersey Court Rules, and participated as amicus curiae before the New Jersey Supreme Court on issues regarding pretrial release and speedy trial.
ARGUMENT Where a party moves for a preliminary injunction, the party must show four things:
When ruling on a motion for preliminary injunctive relief, the district court must consider four factors: (1) the likelihood that the applicant will prevail on the merits at final hearing; (2) the extent to which the plaintiffs are being irreparably harmed by the conduct complained of; (3) the extent to which the defendants will suffer irreparable harm if the preliminary injunction is issued; and (4) the public interest. S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 374 (3d Cir. 1992). For the reasons discussed herein, Amici focus on Plaintiffs’ inability to show the likelihood of success on the merits or that the public interest favor granting an injunction. Motions to dismiss should be granted where plaintiffs cannot establish the legal sufficiency of a complaint, that is, where plaintiffs do not state a claim upon which relief can be granted. F.R.C.P. 12(b)(6). The burden falls on defendants to show that
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plaintiffs have failed to state a claim. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). Dismissal is appropriate only where, accepting the facts alleged in the complaint as true, Plaintiffs fail to plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As discussed below, because – even when the facts in the Complaint are accepted as true – the behavior complained of does not violate the Constitution, Plaintiffs fail to state a claim upon which relief may be granted.
I. PLAINTIFF LEXINGTON NATIONAL LACKS STANDING. According to the Complaint, “Plaintiff Lexington National is
a Florida corporation based in Maryland and licensed to do business and operating (sic) extensively in New Jersey.” Compl. ¶ 17. It “operates through [licensed] independent bail bondsmen” and “stands ready, willing, and able to issue and post a bail bond to Plaintiff Holland and others similarly situated.” Id. In arguing that such a tenuous relationship to Plaintiff Holland’s case provides Lexington National standing, Lexington National argues that “[i]f New Jersey criminal defendants had the option of monetary bail, Plaintiff Lexington National would help them to
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take advantage of that option.” Id. at ¶ 57. Therefore, Lexington National claims to “assert[] both its own constitutional rights and those of potential customers.” Id. at ¶ 58 (citing Dep’t of Labor v. Triplett, 494 U.S. 715, 720 (1990)).
These arguments misconstrue the doctrines of ordinary standing and third-party standing.
A. Lexington Does Not Assert Violations of Its Own Constitutional Rights.
Count One of Plaintiffs’ Complaint alleges a violation of the right to bail as found in the Eighth Amendment and made applicable on the states through the Fourteenth Amendment. Compl. ¶¶ 119-131. Count Two of Plaintiffs’ Complaint alleges a violation of both procedural and substantive due process based on the contention that criminal defendants are deprived of liberty if denied the opportunity to pay to avoid supervision. Id. at ¶¶ 132-149. Count Three of the Plaintiffs’ Complaint alleges violations of the Fourth Amendment’s prohibition on unreasonable searches and seizures, as made applicable on the states through the Fourteenth Amendment. ¶¶ 150-164.
Merits aside, none of those claims directly addresses the rights of Lexington National. The Eighth Amendment’s bail clause protects the rights of criminal defendants, not corporations. See Johnson Bonding Co. v. Kentucky, 420 F. Supp. 331, 337 (E.D. Ky. 1976) (“It is obvious that [corporate] plaintiff does not seek to
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vindicate its right to be free from excessive bail. A corporation cannot go to jail.”); see also United States v. Chaplin's, Inc., 646 F.3d 846, 851 (11th Cir. 2011) (noting that in the context of the Eighth Amendment’s excessive fines clause, the “Supreme Court has never held that this amendment applies to corporations”). The Fourteenth Amendment’s liberty clause is likewise inapplicable to corporate sureties in this context. And the search or seizure burdens Plaintiffs allege relate to the requirement that Plaintiff Holland wear a GPS monitor. Those burdens, too, are borne by criminal defendants, not corporate entities. Therefore, Lexington National is patently incorrect when it contends that it “asserts . . . its own constitutional rights. . . .” Compl. at ¶ 58. The only rights asserted by Lexington National in each of the three causes of action are “those of potential customers.” Id.
B. Lexington Cannot Satisfy the Requirements of Third-Party Standing.
In support of its contention that it nonetheless has standing, Lexington National cites to Triplett, 494 U.S. at 720. Compl. ¶ 58. Amici generally support a broad conception of standing, especially to vindicate violations of constitutional rights. However, in the present case, Lexington National fails to meet the standing requirements. As the United States Supreme Court explained in that case: “Ordinarily, of course, a litigant must assert his own legal rights and interests, and cannot rest his
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claim to relief on the legal rights or interests of third parties.” Triplett, 494 U.S. at 720 (internal citations omitted). The requirement that a plaintiff must assert a violation of his own rights and interests applies equally where “the very same allegedly illegal act that affects the litigant also affects a third party.” Triplett, 494 U.S. at 720 (citing United States v. Payner, 447 U.S. 727, 731-732 (1980)).
Third-party standing exists as an exception to the general standing requirements. When “enforcement of a restriction against the litigant prevents a third party from entering into a relationship with the litigant (typically a contractual relationship), to which relationship the third party has a legal entitlement (typically a constitutional entitlement), third-party standing has been held to exist.” Triplett, 494 U.S. at 720 (citing Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 954958 (1984)). Lexington National cannot meet the standard for thirdparty standing.
1. Even if the Constitution Provided a Right to Money Bail, it Does Not Provide a Right to a Commercial Bail Bond.
Plaintiffs’ entire claim hinges on a contention – disputed at length below – that the United States Constitution provides an implicit guarantee of money bail, except in rare cases where courts detain defendants. Compl. ¶¶ 123, 126. But the Eighth Amendment
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does not provide a right to money bail, and it certainly does not
create a right to a money bail posted by a commercial bond company.1
Several states prohibit the use of commercial bail bond
companies. For example, Oregon’s statutes do not provide a
mechanism for the use of commercial sureties. ORS § 135.265. When
bail bondspeople challenged the statutory scheme contending that
it violated Oregon Constitution, Art I, § 14, which requires that
“Offences [sic] . . . shall be bailable by sufficient sureties[,]”
(a provision absent from both the New Jersey Constitution and the
United States Constitution) the Oregon Court of Appeals flatly
rejected the argument: “Nowhere does [the constitutional
provision] say that lawful release of a defendant may be
1 A brief look at the history of bail establishes quite the opposite. In the colonies and early U.S. history, bail was meant to ensure the liberal release of people accused of non-capital crimes, without judicial discretion or input, as a keystone of our right to be presumed innocent until proven guilty. Caleb Foote, The Coming Constitutional Crisis in Bail: I and II, 113 UNIV. PA. L. REV. 959, 975–76. The mechanics of monetary bail bonds have changed in the last century: in our original bail system, a security bond would only be owed after an accused person failed to show up for court (often referred to now as an “unsecured bond”), not before release. See Rational and Transparent Bail Decision Making, Pretrial Justice Institute and the MacArthur Foundation (March 2012), at 11. Only as the United States expanded west, and it became more difficult to find friends and family members to serve as an arrestee’s “surety”, did a commercial bail bonds industry began to emerge. Timothy R. Schnacke, et al., The History of Bail and Pretrial Release (Sept. 23, 2010) at 6–7. Commercial bonds, never allowed in the English system, started to flourish after the westward expansion of the mid-nineteenth century; in their current form they would not have been recognizable to the drafters of the Eighth Amendment.
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accomplished only through the medium of sureties. Were this
contention sound, release of a defendant on his own recognizance
or by any other means would be constitutionally prohibited – an
obvious absurdity.” Burton v. Tomlinson, 527 P.2d 123, 126 (Or.
Ct. App. 1974).
Illinois, too, eliminated the use of commercial bail bond
companies. Illinois did so by allowing criminal defendants to post
money bail with courts, in exchange for a small fee. Schilb v.
Kuebel, 404 U.S. 357, 372 (1971) (Marshall, J., concurring) (“All
agree that the central purpose of the statute was to restrict
severely the activities of professional bail bondsmen who had
customarily collected 10% of the amount of each bond as a fee and
retained all of it regardless of what happened.”). The United
States Supreme Court explained how the system worked in Illinois
prior to the reforms adopted by their Legislature:
Prior to 1964 the professional bail bondsman system with all its abuses was in full and odorous bloom in Illinois. Under that system the bail bondsman customarily collected the maximum fee (10% of the amount of the bond) permitted by statute, and retained that entire amount even though the accused fully satisfied the conditions of the bond. Payment of this substantial “premium” was required of the good risk as well as of the bad. The results were that a heavy and irretrievable burden fell upon the accused, to the excellent profit of the bondsman, and that professional bondsmen, and not the courts, exercised significant control over the actual workings of the bail system.
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Schilb 404 U.S. at 359-360 (internal citations omitted). After the reforms were enacted, “bail bondsman abruptly disappeared in Illinois ‘due primarily to the success of the ten percent bail deposit provision.’” Id. at 360 (quoting John S. Boyle, Bail Under the Judicial Article, 17 DE PAUL L. REV. 267, 272 (1968)).
Kentucky explicitly outlaws commercial bail bond companies from doing business in the state. KRS § 431.510. Commercial bail bond companies brought a series of constitutional challenges to the statutory prohibition, all of which were rejected. See, e.g., Johnson Bonding Co., 420 F. Supp. at 337; Stephens v. Bonding Asso. of Kentucky, 538 S.W.2d 580, 584 (Ky. 1976) (rejecting constitutional challenge to legislation that “[i]nstead of letting commercial sureties ‘die on the vine,’” determined to force “commercial bonding companies as surety for profit to go quickly and ‘gently into that good night.’”); Benboe v. Carroll, 494 F. Supp. 462, 466 (W.D. Ky. 1977) (awarding attorneys’ fees to defendants as a result of plaintiff bail bond companies repeated, unsuccessful constitutional challenges to Kentucky’s prohibition of commercial bail bond companies).
In Wisconsin, the Legislature amended a statute to preclude sureties from receiving compensation for serving as sureties, which effectively put commercial bail bonds companies out of business. Kahn v. McCormack, 299 N.W.2d 279, 281 (Wis. Ct. App. 1980). In Wisconsin, too, the commercial bail industry challenged
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the amended statute as a violation of due process and equal protection. Id. The Wisconsin Court of Appeals held that the Legislature “could in the exercise of its police power, reasonably conclude that outlawing the bail bonding business [advanced] . . . the public welfare.” Id. at 282.
That four states effectively prohibit commercial bail bonds – and that those prohibitions have survived constitutional challenges – is persuasive evidence that there exists no right to commercial bail bonds. And, indeed, Plaintiffs point to no authority to support the proposition that such a right exists. Finding a right to commercial bond would prevent states from exploring alternative forms of pretrial release. This seems especially imprudent given recent revelations about widespread abuses by bail bond agents. Color of Change & ACLU, Selling off our Freedom: How Insurance Corporations Have Taken Over Our Bail System, May 2017, available at: https://colorofchange.org/bailindustry-report/.
2. As a Result, Lexington National Lacks Standing Under the Third-Party Standing Doctrine.
Triplett establishes the test for third-party standing. There, an attorney challenged a Department of Labor regulation that limited his ability to collect certain fees from clients seeking recompense under the Black Lung Benefits Act of 1972. 494 U.S. at 717. In that case, no one disputed that the clients in the
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Black Lung Benefits Act action had a regulatory (20 CFR §§ 725.362, 725.363(a) (1989)), statutory (30 U.S.C. § 932(a)) and constitutional right (through the Due Process Clause of the Fifth Amendment) to be represented by counsel in those proceedings. Triplett, 494 U.S. at 717-718. Thus, the client (the rights holder) had an unquestionable right to form a relationship with the attorney (third-party litigant), and so the attorney was found to have standing.
As demonstrated above, Plaintiff Holland and other criminal defendants have no constitutional entitlement to engage Lexington National or any other commercial surety (supra, Point I.B.1). Because no such entitlement exists, Lexington National cannot meet the standard set forth in Triplett for third-party standing.
There exist other exceptions to general prohibition on standing for parties who can claim no violation of a right – not raised by Plaintiffs – that are equally inapplicable. For example, in Sullivan v. Little Hunting Park, Inc., the United States Supreme Court allowed a third party to challenge racial discrimination in housing where he was “the only effective adversary.” 396 U.S. 229, 237 (1969) (quoting Barrows v. Jackson, 346 U.S. 249, 259 (1953)). The same cannot be said for Lexington National: Holland has standing and an ability to assert all the claims raised by Lexington National.
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In cases addressing the rights of individuals to obtain contraception lawfully and other instances, courts have recognized the right of third-parties to challenge the contested laws because impacted people would otherwise be denied access to the courts or third parties would face criminal liability. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 446 (1972) (allowing clinic owner to challenge prohibition on distribution of birth control to unmarried people because unmarried people, who were not subject to criminal prosecution under the statute, would otherwise be denied a forum in which to assert their own rights); Griswold v. Connecticut, 381 U.S. 479, 481 (1965) (noting that Planned Parenthood Director had “standing to assert that the offense which he is charged with assisting is not, or cannot constitutionally be, a crime.”); Craig v. Boren, 429 U.S. 190, 195-196 (1976) (holding that where a beer vendor who faced a loss of license if he violated a law that treated young men and young women differently, he had third-party standing to challenge the statute on equal protection grounds). In this case there is neither a risk that there will be no forum for the litigation of the issues nor a threat of criminal prosecution.
Under neither the standard for third-party standing relied upon by Plaintiffs, nor any of the other third-party standing justifications, does Lexington National have standing to challenge the CJRA.
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II. COURTS ARE PERMITTED TO CONSIDER DANGEROUSNESS IN SETTING TERMS OF RELEASE.
Turning to the merits of Plaintiffs’ claims, Plaintiffs rely on a misunderstanding of the role dangerousness can play and has played in pretrial release determinations.2 Specifically, Plaintiffs contend that “[c]onsistent with the historic purpose of bail to ensure the appearance of the defendant at trial, New Jersey for more than three centuries did not permit courts to consider a defendant’s potential dangerousness in setting bail.” Compl. at ¶ 32. Such a contention overstates the historical prominence of assurance of appearance as a consideration for pretrial release and takes too narrow a view of the authority of New Jersey judges to consider dangerousness in the pretrial context.
In United States v. Salerno, the United States Supreme Court considered whether the Eighth Amendment’s prohibition on excessive bail “grants [criminal defendants] a right to bail calculated solely upon considerations of flight.” 481 U.S. 739, 752 (1987). In support of that contention, the criminal defendants relied upon “Stack v. Boyle, 342 U.S. 1, 5 (1951), in which the Court stated that ‘bail set at a figure higher than an amount reasonably calculated [to ensure the defendant’s presence at trial] is
2 Plaintiffs concede that there exists no absolute right to bail. Compl. ¶ 26. See also United States v. Perry, 788 F.2d 100, 112 (3d Cir. 1986) (“[E]ighth [A]mendment does not grant an absolute right to bail.
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“excessive” under the Eighth Amendment.’” Salerno, 481 U.S. at 752. Despite their reliance on Stack, the defendants in Salerno acknowledged that “a court may refuse bail when the defendant presents a threat to the judicial process by intimidating witnesses.” Id. at 753. The Salerno defendants therefore contended that there existed a singular purpose of bail: “to ensure the integrity of the judicial process.” Id.
While acknowledging that the predominant role of bail is to safeguard a defendant’s appearance, the Court “reject[ed] the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.” Id. Specifically, the Court approved the consideration of “preventing danger to the community” as a legitimate regulatory interest of the government. Id. at 747. The Court explicitly rejected the claim advanced by Plaintiffs here: “Nothing in the text of the Bail Clause limits permissible Government considerations solely to questions of flight.” Id. at 754.
Salerno remains good law and, despite Plaintiffs’ suggestion to the contrary, does not merely stand for the proposition that some people may be detained without bail. See Compl. ¶ 126. It also makes clear that the government may legitimately consider public safety in the regulation of pretrial release. 481 U.S. at 753. The regulation of pretrial release is not simply the question
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of whether a criminal defendant shall be released, but also on what terms such release should be granted. See, e.g., United States v. Norman, 2014 U.S. Dist. LEXIS 107976, at *6-7 (E.D. Pa. Aug. 6, 2014) (imposing “onerous obligations that severely restrict Defendants’ freedom and fully address the issues of dangerousness raised by the Government.”); United States v. Farris, 2008 U.S. Dist. LEXIS 36937, at *47 (W.D. Pa. May 1, 2008) (finding that “the combination of conditions being imposed serve to provide a reasonable assurance of safety to the community against the risk posed by defendant’s release”); United States ex rel. Savitz v. Gallagher, 800 F. Supp. 228, 233 (E.D. Pa. 1992) (denying petition for writ of habeas corpus where court used risk of future criminal conduct as a factor in setting the conditions of bail); United States v. Gatto, 750 F. Supp. 664, 672 (D.N.J. 1990) (granting defendants bail with stringent conditions, including house arrest with electronic surveillance and wiretaps on their telephones); United States v. Giampa, 755 F. Supp. 665, 670 (W.D. Pa. 1990) (imposing a series of liberty-restricting conditions as a condition of pretrial release).
That principle is equally applicable in New Jersey state courts. Prior to amendments approved in 2014, the New Jersey Constitution provided for an affirmative right to bail. N.J. Const., art. I, ¶11. Under that state constitutional provision, New Jersey courts prohibited consideration of potential
22

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dangerousness in setting bail but courts were empowered to consider dangerousness in setting conditions of release. State v. Steele, 430 N.J. Super. 24, 35-36 (N.J. Super. Ct. App. Div. 2013) (rejecting use of monetary bail to protect the public but noting that “to address concerns about community safety, the court may resort to reasonable non-monetary conditions.”), appeal dismissed as improvidently allowed by State v. Steele, 223 N.J. 284 (2014). See also State v. Korecky, 169 N.J. 364, 384 (2001) (holding that when “[u]sed with caution . . . conduct-related conditions may be appropriate.”).
Indeed, the New Jersey Rules of Court that existed prior to amendments designed to implement the CJRA explicitly provided that courts could set non-monetary conditions tailored to protect public safety. R. 3:26-1(a) (effective Sept. 1, 2013) (“The court may also impose terms or conditions appropriate to release including conditions necessary to protect persons in the community”). The Rules did not limit courts’ authority to set nonmonetary conditions of pretrial release to situations where money bail had been set. Id. It would make little sense to allow nocontact orders and other safety-protecting conditions when money bail is set but to disallow those conditions when it is not.
Thus, while Plaintiffs are technically correct that “New Jersey for more than three centuries did not permit courts to consider a defendant’s potential dangerousness in setting bail[,]”
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Plaintiffs ignore the critical issue: courts’ ability to set nonmonetary conditions of pretrial release to protect public safety independently, and, indeed, instead of money bail has been longaccepted, both in New Jersey and elsewhere.
III. MONEY BAIL DOES NOT PROTECT PUBLIC SAFETY AND RESULTS IN DISPROPORTIONATE HARM.
A. No Credible Evidence Suggests that the use of Money Bail Contributes to Public Safety.
It is now well-established that an upfront deposit of money bail does little to nothing to advance public safety goals. The ability to pay bail bears no relation to the safety threat a person presents. See, e.g., Charles V. Bagli and Kevin Flynn, NEW YORK TIMES, “Durst Jumps Bail, and a Nationwide Dragnet Is On,” (Oct. 17, 2001) available at: http://www.nytimes.com/2001/10/17/ nyregion/durst-jumps-bail-and-a-nationwide-dragnet-is-on.html. The American Bar Association (“ABA”) formally recognizes the lack of evidence to justify the imposition of pretrial financial conditions. See ABA Standard 10-5.3(a) (commentary) (“The policy reasons underlying this philosophy. . . include the absence of any relationship between the ability of a defendant to post a financial bond and the risk that a defendant may pose to public safety.”) (emphasis added).
A 2013 study demonstrates the disconnect between an upfront money bond and public safety. Researchers analyzed nearly two thousand bond decisions and corresponding pretrial outcomes based
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on 16 months’ worth of data in Colorado’s most populous counties.

Michael R. Jones, Pretrial Justice Inst., Unsecured Bonds: The As

Effective and Most Efficient Pretrial Release Option at 6 (Oct.

2013) (hereinafter “Unsecured Bonds”). Drawing comparisons across

risk levels, the study found no statistically significant

difference between unsecured bonds and secured money bonds in

safeguarding public safety. Id. at 3, 10. Moreover, the study

concluded that “[h]igher monetary amounts of secured bonds are

associated with more pretrial jail bed use but not increased court

appearance rates.” Id. at 3.

By way of illustration, jurisdictions that have effectively

abolished or severely deprioritized money bail have done so while

maintaining both public safety and the integrity of the court

system. In 1992, Washington, D.C. abolished setting money bail

that would lead to pretrial detention, and since then crime rates

have only continued to decline (see, e.g. Matthew Friedman, et.

al., Crime Trends: 1990-2016, THE BRENNAN CENTER FOR JUSTICE (Apr. 18.

2017) at 27), while the pretrial success rate remains high.

Approximately 88 percent of defendants in Washington D.C. are

released on non-financial conditions, with the remaining

population detained. Pretrial Services Agency for the District of

Columbia, Research and Data, Performance Measures (hereinafter

“Performance

Measures”),

available

at:

https://www.psa.gov/?q=data/performance_measures. Between 2007

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and 2012, over 91 percent were not rearrested — for any reason — while in the community prior to their trial. Id. Of particular note, 98 percent of released defendants remained free of arrest for a violent crime while in the community awaiting trial. Id.
Similarly, the federal pretrial system demonstrates that money is not necessary to protect public safety. See 18 U.S.C. § 3142(a)–(b). Between 2001 and 2007, in the federal criminal system, just over 96 percent of the persons released pretrial — across all risk levels — had no documented conduct presenting a “danger to the community.” Marie VanNostrand, Ph.D. and Gena Keebler, Pretrial Risk Assessment in the Federal Court (April 14, 2009) at 22–3. Even considering the highest risk level identified by the Office of Probation and Pretrial Services, over 84 percent of persons released had complete success during the period before trial, meaning no failures to appear and no rearrests for dangerous conduct. Id.
Research advanced in contradiction of these principles is misleading. Proponents of money bail often rely on a 2007 Bureau of Justice Statistics (“BJS”) report that analyzed State Court Processing Statistics (“SCPS”) data to claim that secured money bail affords public safety benefits. Thomas H. Cohen & Brian A. Reaves, U.S. Dep’t of Justice, Bureau of Justice Statistics, Pretrial Release of Felony Defendants in State Courts at 8 (2007). However, in 2010, the BJS released an advisory warning specifically
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in response to abuses of its 2007 report, stating that, “[a]ny
evaluative statement about the effectiveness of a particular
program in preventing pretrial misconduct based on SPCS data is
misleading.” Bureau of Justice Statistics, Data Risk Advisory:
State Court Processing Statistics Data Limitations, March 2010,
available at: https://www.bjs.gov/content/pub/pdf/scpsdl_da.pdf.
Finally, the authors of a more recent study took care to note
shortcomings in past research purporting to demonstrate the
efficacy of money bail, from methodological or data concerns to
failure to account for alternate explanations.3 See Jones Unsecured
Bonds at 4. There is simply no sound evidence that money bail
promotes public safety.
3 As the authors of the Jones study explain, several such prior publications exhibit (a) “data or methodological limitations that limit the generalizability of the findings to other jurisdictions,” (for example, Robert G. Morris, Pretrial Release Mechanisms in Dallas County, Texas (Jan. 2013); Krahl & New Direction Strategies, An Analysis of the Financial Impact of Surety Bonding on Aggregate and Average Detention Costs and Cost Savings in the State of Florida for 2010 (2011)); (b) do not sufficiently account for possible alternate explanations of their findings (see, for example, Michael K. Block, The Effectiveness and Cost of Secured and Unsecured Pretrial Release in California’s Large Urban Counties, 1990-2000 (2005)); and/or (c) are “limited to measuring the effect of various forms of pretrial release on a singular outcome - court appearance, but not on. . . two [other] important pretrial outcomes - public safety and jail bed use” (see, for example, Helland & Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, Journal of Law & Economics, April 2004). See also Kristen Bechtel, et. al., Dispelling the Myths: What Policymakers Need to Know About Pretrial Research, Pretrial Justice Institute (Nov. 2012).
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B. Money Bail has a Demonstrated History of Harmful, Discriminatory Impact.
Not only does the imposition of a monetary bail requirement fail to advance the goal of public safety, but such an imposition has well-documented disparate and devastating effects on lowincome communities, People of Color, and the LGBT community.
Pretrial detention due to money bail requirements carries massive consequences for those unable to pay the bond, from the potential loss of employment, housing and child custody to the added difficulty of presenting a defense in one’s case. See Paul Heaton, et. al., The Downstream Consequences of Misdemeanor Pretrial Detention (July 2016) at 1. Courts across the country have recognized that operating systems of pretrial justice based on access to money contravenes the Fourteenth Amendment’s promise of equal protection. See Burks v. Scott County, Miss., 3:14-cv00745-HTW-LRA (S.D. Miss. June 27, 2017) (“In the pretrial context, it is well settled that jailing someone solely because they cannot satisfy a financial condition ‘is invidious discrimination and not constitutionally permissible.’”) (citing Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978)); ODonnell v. Harris Cty., --- F. Supp. 3d ---, 2017 WL 1735456, at *3 (S.D. Tex. Apr. 28, 2017) (“[U]nder federal and state law, secured money bail may serve to detain indigent misdemeanor arrestees only in the narrowest of cases, and only when, in those cases, due process safeguards the
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rights of the indigent accused.”); Walker v. City of Calhoun, No. 4:15-CV-0170-HLM (N.D. Ga. June 16, 2017) (enjoining city from detaining indigent arrestees who are otherwise eligible for release but are unable, because of their poverty, to pay secured money bail); Rodriguez v. Providence Cmty. Corr., 155 F. Supp. 3d 758, 786-69 (M.D. Tenn. Dec. 17, 2015) (enjoining a policy of detaining probationers who could not pay a predetermined amount of bail); Thompson v. Moss Point, 2015 WL 10322003, at *1 (S.D. Miss. Nov. 6, 2015) (“If the government generally offers prompt release from custody after arrest upon posting a bond pursuant to a schedule, it cannot deny prompt release from custody to a person because the person is financially incapable of posting such a bond.”); see also State v. Blake, 642 So. 2d 959, 966 (Ala. 1994) (“Putting liberty on a cash basis was never intended by the founding fathers as the basis for release pending trial”).
Moreover, “nearly every study on the impact of race in bail determinations has concluded that African Americans are subjected to pretrial detention at a higher rate and are subjected to higher bail amounts than are white arrestees with similar charges and similar criminal histories.” Cynthia E. Jones, “Give us Free”: Addressing Racial Disparities in Bail Determinations, 16 LEGISLATION & PUB. POL'Y 919, 938 (2013). A meta-analysis of 25 studies on the impact of race in bail determinations published between 1970 and 2000 noted that 18 studies found black defendants were subjected
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to harsher treatment than whites. Id. at 940 (citing Marvin D. Free, Jr., Race and Presentencing Decisions: The Cost of Being African American, in Racial Issues in Criminal Justice: The Case of African Americans 137, 140-41 (Marvin D. Free, Jr. Ed., 2003). And the Pretrial Justice Institute reports that bond amounts are 35 percent higher for Black male defendants and 19 percent higher for Latino male defendants than similarly situated white male defendants. Pretrial Justice Institute, Race & Bail in America, available at http://projects.pretrial.org/racialjustice/.
Finally, LGBT people are also disproportionately impacted by the money bail system. In a 2015 survey of 1,118 incarcerated LGBT people, 74 percent of those being held in jail pretrial claimed it was because they could not afford to post bail, as compared to the 40 percent of the overall New Jersey jail population who were incarcerated due to an inability to pay bail. Jason Lydon et al., Black & Pink, Coming out of Concrete Closets: A Report on Black & Pink’s National LGBTQ Prisoner Survey 6 (2015). In the LGBT survey, over half of those incarcerated pretrial were held for a year or longer. Id.
In summary, money bail as an upfront requirement prior to release bears no relationship to public safety. Rather than serving a public goal, the use of secured money bail discriminates against those who cannot afford it, and disproportionately harms People of Color and the LGBT community.
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IV. WHERE COURTS SEEK TO PROTECT PUBLIC SAFETY, THEY NEED NOT OFFER CRIMINAL DEFENDANTS AN OPPORTUNITY TO PURCHASE THE ABILITY TO AVOID SUPERVISION.
Plaintiffs do not merely allege that the trial court failed to specifically tailor conditions in Plaintiff Holland’s case to ensure that they were the least restrictive conditions that would protect the public and ensure his presence in court when required. Instead, they go much further and contend that unless a court finds that the case represents one of the “carefully limited exception[s]” to pretrial release, criminal defendants must be given an opportunity to pay money in lieu of any pretrial deprivation of liberty. Compl. ¶ 126. Such a reading is at odds with both common sense and significant jurisprudence.
Such a reading of the Eighth Amendment would significantly hamper states’ ability to confront and eliminate the inequality caused by overreliance on money bail and, critically, would undermine states’ authority to impose conditions that actually address public safety. In New Jersey, as elsewhere, courts have long been empowered to impose conditions of pretrial release designed to protect public safety, without regard to the amount of money bail, if any. N.J.S.A. 2A:162-16b(2)(b). See also United States v. Cachucha, 778 F. Supp. 2d 1172, 1179 (D.N.M. 2011) (releasing defendant, who was not a flight risk but who was a threat to the community, on GPS monitoring and other conditions); Farris, 2008 U.S. Dist. LEXIS 36937 at *33-34 (releasing defendant
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to parents’ custody, with GPS monitoring, computer monitoring, and mandated mental health treatment); Burns Ind. Code Ann. § 35-461-15.1(a)(5) (Indiana criminal statute prohibits violations of nocontact orders and allows for the issuance of such an order when a defendant is released in his own recognizance); Spinks v. State, 2007 Ind. App. Unpub. LEXIS 1802 (Ind. Ct. App. July 3, 2007) (noting that defendant released on his own recognizance was placed on GPS monitoring with no-contact provision); Fla. Stat. § 903.047 (in Florida, conditions of pretrial release, including libertyrestricting conditions designed to promote public safety such as no-contact orders, attach to defendants released on surety bail bonds, on their own recognizance, or in other forms); Edwards v. Lexington County Sheriff’s Dep’t, 688 S.E.2d 125, 127 (S.C. 2010) (defendant released on his own recognizance, subject to a nocontact order); State v. Siford, 2003-Ohio-1588, P2-P3, 2003 Ohio App. LEXIS 1522 at *2 (Ohio Ct. App., Geauga County Mar. 28, 2003) (same).
The Eighth Amendment does not prohibit the imposition of such conditions. See Salerno, 481 U.S. at 753 (noting that Eighth Amendment does not foreclose the government from pursuing public safety “through regulation of pretrial release.”). But, that does not mean that New Jersey – or any other state – has carte blanche
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to impose onerous4 conditions of pretrial release. The excessive bail clause of the Eighth Amendment prohibits the imposition of conditions – monetary or non-monetary – that are not necessary to achieve the legitimate purposes of pretrial release. See Stack 342 U.S. at 5 (“bail set at a figure higher than an amount reasonably calculated to [ensure the defendant’s presence at trial] is ‘excessive’ under the Eighth Amendment.”); United States v. Arzberger, 592 F. Supp. 2d 590, 605 (S.D.N.Y. 2008) (“if the Excessive Bail Clause has any meaning, it must preclude bail conditions that are (1) more onerous than necessary to satisfy legitimate governmental purposes and (2) result in deprivation of the defendant's liberty.”).
The New Jersey CJRA provides greater protection than the excessive bail clause: “The non-monetary condition or conditions of a pretrial release ordered by the court . . . shall be the least restrictive condition, or combination of conditions, that . . . [achieve the three legitimate purposes of the CJRA].” N.J.S.A. 2A:162-17b(2). In other words, a court must make an individualized determination that specific conditions are both necessary and the least restrictive to achieve the purposes of the CJRA, including the protection of the community, prior to imposing a condition on any criminal defendant. New Jersey also affords robust procedural
4 Amici do not dispute that GPS monitoring represents a substantial limitation on liberty. Compl. ¶¶ 75-78.
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protections if a criminal defendant contends that a court failed to follow the statutory (or constitutional) requirements.5 He or she may file either a motion to reconsider the conditions, alleging a material change in circumstances (R. 3:26-2(c)(2)) or an interlocutory appeal to the Appellate Division “in the interest of justice.” R. 2:2-4.
Plaintiffs rely on a fundamental misconception about the Eighth Amendment. That constitutional provision does not provide a right to money bail and does not preclude states from imposing non-monetary conditions tailored to protect public safety.
CONCLUSION The CJRA provides criminal defendants with constitutionally required protections by requiring that conditions of release be the least restrictive ones that satisfy the permissible justifications for limitations on pretrial liberty. There is no right to money bail under the Eighth Amendment. As a result, Plaintiffs are unlikely to succeed on the merits. Additionally, there exist compelling public interests disfavoring Plaintiffs’ proposal that criminal defendants be guaranteed an option to
5 It appears that Plaintiff Holland consented to the conditions imposed upon him. Whether or not that decision constitutes a waiver, Plaintiff Holland failed to avail himself of either of avenues for relief that exist under New Jersey Rules of Court. Plaintiff Holland’s acceptance of the conditions imposed by the trial court also raises questions about typicality. F.R.C.P. 23(a)(3).
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purchase the right not to be supervised pretrial. As a result, Plaintiffs’ request for a preliminary injunction must be denied.
Indeed, even accepting all of Plaintiffs’ factual assertions as true, the decision to impose specifically-tailored, least restrictive, liberty-restricting conditions of pretrial release to protect public safety does not violate the Constitution. As a result, Plaintiffs fail to state a claim upon which relief may be granted and Defendants’ motion to dismiss must be granted.
Respectfully submitted, /s/Alexander Shalom Alexander Shalom Edward L. Barocas Rebecca Livengood Jeanne LoCicero American Civil Liberties Union
of New Jersey Foundation 89 Market Street, 7th Floor P.O. Box 32159 Newark, New Jersey 07102 Andrea Woods* Brandon J. Buskey* Criminal Law Reform Project American Civil Liberties Union
Foundation 125 Broad St., 18th Floor New York, NY 10004 Counsel for Proposed Amici Curiae *pro hac vice pending
35

 
 Case 1:17-cv-04317-JBS-KMW Document 24 Filed 07/28/17 Page 1 of 2 PageID: 326

CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 116 Trenton, New Jersey 08625-0116 Attorney for State Defendants Kelly Rosen, Mary E. Colalillo, and Christopher S. Porrino

By: Stuart M. Feinblatt Assistant Attorney General (609) 984-9504 Stuart.Feinblatt@law.njoag.gov

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE

BRITTAN B. HOLLAND, individually

and on behalf of all others similarly :

situated, and LEXINGTON

NATIONAL INSURANCE

:

CORPORATION,

:

Plaintiffs,

:

v.

:

KELLY ROSEN, Pretrial Services

Team Leader; MARY E.

:

COLALILLO, Camden County

Prosecutor; CHRISTOPHER S.

:

PORRINO, Attorney General of New

Jersey,

:

HON. JEROME B. SIMANDLE, U.S.D.J.
HON. KAREN M. WILLIAMS, U.S.M.J.
CIVIL ACTION NO. 1:17-cv-04317
CIVIL ACTION
NOTICE OF MOTION TO DISMISS ON BEHALF OF STATE DEFENDANTS
(ELECTRONICALLY FILED)

Defendants.

:

Case 1:17-cv-04317-JBS-KMW Document 24 Filed 07/28/17 Page 2 of 2 PageID: 327
TO: CLERK OF THE COURT Mitchell H. Cohen Building & U.S. Courthouse 4th & Cooper Streets Camden, New Jersey 08101 Counsel of Record PLEASE TAKE NOTICE that on Monday August 21, 2017, the undersigned,
Christopher S. Porrino, Attorney General of New Jersey, by Stuart M. Feinblatt, Assistant Attorney General on behalf of State Defendants Kelly Rosen, Mary E. Colalillo, and Christopher S. Porrino (“State Defendants”) shall move before the Presiding Civil Judge or his designee, of the United State District Court, for the District of New Jersey Camden Vicinage, for an Order dismissing Plaintiff's Complaint in this matter.
It is respectfully requested that the Court rule upon the moving papers submitted, without requiring appearance of counsel, unless opposition is entered, in which case oral argument is requested.
In support or their Motion, State Defendants will rely on the attached brief. CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY /s/ Stuart M. Feinblatt Stuart M. Feinblatt Assistant Attorney General
DATED: July 28, 2017
2

 
 Case 1:17-cv-04317-JBS-KMW Document 59 Filed 09/21/17 Page 1 of 94 PageID: 639

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BRITTAN B. HOLLAND and LEXINGTON NATIONAL INSURANCE CORPORATION,
Plaintiffs,
v.
KELLY ROSEN, MARY E COLALILLO, and CHRISTOPHER PORRINO,
Defendants.

HONORABLE JEROME B. SIMANDLE
Civil Action No. 17-4317 (JBS-KMW)
OPINION

APPEARANCES:
Justin Taylor Quinn, Esq. ROBINSON MILLER LLC One Newark Center 19th Floor Newark, NJ 07102
-andPaul D. Clement, Esq. (pro hac vice) Michael F. Williams, Esq. Christopher G. Michel, Esq. (pro hac vice) Andrew. C. Lawrence, Esq. (pro hac vice) KIRKLAND & ELLIS LLP 655 Fifteenth Street NW Washington, D.C. 20005
Attorneys for Plaintiffs
Stuart Mark Feinblatt, Assistant Attorney General Christopher Joseph Riggs, Deputy Attorney General Office of the Attorney General Hughes Justice Complex 25 W. Market Street Trenton, NJ 08625
Attorneys for Defendants
Alexander R. Shalom, Esq. American Civil Liberties Union of New Jersey Foundation 89 Market Street, 7th Floor P.O. Box 32159 Newark, NJ 07102
-and-

Case 1:17-cv-04317-JBS-KMW Document 59 Filed 09/21/17 Page 2 of 94 PageID: 640
Brandon J. Buskey, Esq. (pro hac vice) Andrea Woods, Esq. (pro hac vice) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004
Attorneys for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of New Jersey, Drug Policy Alliance, Latino Action Network, and National Association for the Advancement of Colored People - New Jersey State Conference
Table of Contents
INTRODUCTION............................................. 3 BACKGROUND............................................... 5 A. Historical Perspective on Bail in New Jersey........ 5 B. The Criminal Justice Reform Act..................... 10
1. The Pretrial Release Decision.................. 11 2. The Risk Assessment Instrument................. 14 3. The Pretrial Detention Hearing................. 20 C. Effect of the CJRA on New Jersey’s Criminal Justice System.............................................. 23 D. Plaintiff Holland................................... 24 E. Plaintiff Lexington................................. 28 F. The State Defendants................................ 29 G. Procedural History.................................. 29 STANDARD OF REVIEW....................................... 30 DISCUSSION............................................... 34 A. Preliminary Issues.................................. 34 1. Standing....................................... 34 2. Younger Abstention............................. 51 3. Habeas vs. 1983................................ 63 4. Summary of Preliminary Issues.................. 66 B. Likelihood of Success on the Merits................. 66 1. Eighth Amendment............................... 67 2. Fourteenth Amendment........................... 77 3. Fourth Amendment............................... 84

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4. Summary of Likelihood of Success Prong......... 84 C. Probability of Irreparable Harm..................... 88 D. Balance of Harms.................................... 90 E. Considerations of the Public Interest............... 92 F. Summary of Preliminary Injunction Factors........... 93
SIMANDLE, District Judge: INTRODUCTION This dispute centers on the constitutionality of New
Jersey’s recently-enacted Criminal Justice Reform Act (“CJRA”). The matter is presently before the Court upon the motion of Plaintiffs Brittan B. Holland (“Holland”) and Lexington National Insurance Corporation (“Lexington”) for a preliminary injunction enjoining Defendants Kelly Rosen, the Team Leader for Pretrial Services in the Criminal Division of the Superior Court of New Jersey; Mary E. Colalillo, the Camden County Prosecutor; and Christopher S. Porrino, the Attorney General of New Jersey, (collectively, “the State Defendants” or “Defendants”), as well as their agents, “from taking any actions to enforce statutory provisions [of the CJRA] . . . that allow imposition of severe restrictions on the pre-trial liberty of presumptively innocent criminal defendants without offering the option of monetary bail.” (Pl. Proposed Order.)
Holland is presently on pretrial release from the Superior Court of New Jersey on conditions including home confinement (except for employment) and electronic monitoring, but not cash
3

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bail, as he faces charges for second-degree aggravated assault. Lexington is a bail bond provider that alleges its business in New Jersey has essentially dried up since the CJRA took effect on January 1, 2017, although it does not allege it has a bonding relationship with Holland or any other person processed under the CJRA.
The primary issue before the Court is whether Plaintiffs have a “reasonable probability of eventual success” on their claims that the CJRA violates Holland’s Fourth, Eighth, and/or Fourteenth Amendment rights under the U.S. Constitution. This inquiry necessarily requires the Court to also consider jurisdictional issues, such as whether Plaintiffs have standing to bring their constitutional claims and whether the Court must abstain under Younger v. Harris, 401 U.S. 37 (1971), in light of Holland’s ongoing state prosecution.
The Court heard oral argument at a Preliminary Injunction Hearing held on August 22, 2017 [Docket Item 42], and no testimony was offered beyond various affidavits and attached documents. After careful consideration, Plaintiffs’ Motion for a Preliminary Injunction will be denied for the reasons explained below. The following constitute the Court’s findings of fact and conclusions of law upon Plaintiffs’ Motion for a Preliminary Injunction, pursuant to Federal Rule of Civil Procedure 52(a).
4

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BACKGROUND A. Historical Perspective on Bail in New Jersey As under the Eighth Amendment of the U.S. Constitution, the New Jersey State Constitution (“State Constitution”) provides: “[e]xcessive bail shall not be required.” N.J. Const. art. 1, ¶ 12. For more than a century, the State Constitution additionally required: “[a]ll persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.” N.J. Const. of 1844, art. I, ¶ 10; see also N.J. Const. of 1947, art. I, ¶ 11 (2016) (retaining same language from 1844 Constitution).1 Thus, New Jersey has long considered the right of an individual to bail before trial to be “a fundamental one.” State v. Johnson, 61 N.J. 351, 355 (1972). The constitutional guarantee that a criminal defendant be “bailable by sufficient sureties” produced tension in New Jersey’s criminal justice system. On one hand, “any defendants — even those who posed a substantial risk of flight or danger to the community — could be released if they had access to untainted funds to post as bail.” State v. Robinson, 229 N.J.
1 In 2007, New Jersey abolished the death penalty, P.L. 2007, c. 204 (Dec. 17, 2007), thereby guaranteeing that, under the State Constitution, all criminal defendants would be “bailable by sufficient sureties,” N.J. Const. of 1947, art. I, ¶ 11. This provision of the State Constitution was amended effective January 1, 2017, as discussed below.
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44, 52-53 (2017). On the other hand, “poorer defendants accused
of less serious crimes, who presented minimal risk, were held in
custody if they could not post even modest amounts of bail.” Id.
at 53.
For example, a 2013 Report revealed that on a particular
day in 2012, a total of 13,003 inmates were housed in 20 of New
Jersey’s 22 county jails. Marie VanNostrand, Ph.D., Luminosity &
the Drug Policy Alliance, New Jersey Jail Population Analysis 8
(Mar. 2013), https://university.pretrial.org/viewdocument/new-
jersey-jail-popu)[hereinafter, “VanNostrand Report”]. About
9,500 inmates (or 73% of the sampled jail population) were
confined because they were awaiting trial or sentencing in
either Superior or Municipal Court. Id. at 11.2 Most importantly,
more than 5,000 inmates (or 38.5% of the sampled jail
population) were in custody simply because they could not afford
bail. Id. at 13.3 A total of 1,547 of those inmates (or 12% of
2 The average length of stay in jail for a criminal defendant awaiting trial was 314 days. VanNostrand Report at 12. 3 Prior to enactment of the CJRA, criminal defendants in New Jersey had the option of posting bail with cash or by the 10% Deposit Option and the Cash/Bond Option. VanNostrand Report at 13. The latter Options enabled criminal defendants to pay a bail bondsman or company a fee in exchange for the bondsman posting bail for the defendant. See Dobrek v. Phelan, 419 F.3d 259, 261 (3d Cir. 2005)(citing Cap. Bonding Corp. v. N.J. Supreme Court, 127 F. Supp. 2d 582, 584 (D.N.J. 2001)). Once the bondsman posted bail, it then became his responsibility to get the defendant to court. If the defendant failed to appear, then the bail posted was forfeited, and the bondsman either became responsible for the amount of bail or for ensuring that the
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the sampled jail population) were in pretrial custody because they could not afford $2,500 or less, including about 800 inmates who could have secured their release for $500 or less. Id. “In other words, one in eight inmates, who posed little risk, sat in jail pretrial because they were poor, while defendants charged with serious crimes who posed a substantial risk of danger or flight could be released into the community without monitoring so long as they could make bail.” Robinson, 229 N.J. at 53.
In 2012, Governor Chris Christie called for a constitutional amendment to reform New Jersey’s pretrial detention system. Id. Chief Justice Stuart Rabner of the New Jersey Supreme Court subsequently established a Joint Committee on Criminal Justice (“the Joint Committee”) to examine “issues relating to bail and the delays in bringing criminal cases to trial.” Joint Committee, Report of the Joint Committee on Criminal Justice at 1 (Mar. 10, 2014), available at https://www.judiciary.state.nj.us/courts/assets/criminal/finalre port3202014.pdf. The Joint Committee was comprised of members from all three branches of state government and included judges, prosecutors, public defenders, private counsel, court
fugitive defendant was captured and brought to court. If, on the other hand, the defendant appeared in court on his own accord, the posted bail would be returned to the bondsman, who would also keep the original fee paid by the defendant.
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administrators, and staff from the Legislature and Governor’s office. Id.
On March 10, 2014, the Report of the Joint Committee on Criminal Justice was issued. Id. According to the Joint Committee:
the current system presents problems at both ends of the spectrum: defendants charged with less serious offenses, who pose little risk of flight or danger to the community, too often remain in jail before trial because they cannot post relatively modest amounts of bail, while other defendants who face more serious charges and have access to funds are released even if they pose a danger to the community or a substantial risk of flight. Id. at 2. To that end, the Joint Committee first recommended that “New Jersey should move from a largely ‘resource-based’ system of pretrial release to a ‘risk-based’ system of pretrial release.” Id. at 8. Among several other proposals, the Joint Committee further recommended that “[a] statute should be enacted requiring that an objective risk assessment be performed for defendants housed in jail pretrial, using an assessment instrument that determines the level of risk of a defendant,” and “[n]onmonetary conditions of release that correspond to the level of risk should be established.” Id. After conducting hearings on the Joint Committee’s findings and recommendations, the State Legislature proposed and passed the Criminal Justice Reform Act, S. 946, A. 1910 (2014). On
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August 11, 2014, Governor Christie signed the CJRA into law. L.
2014, c. 31 (codified at N.J.S.A. 2A:162-15 to -26).
Enforcement of the CJRA was predicated on ratification of a
proposed amendment to the State Constitution that would
authorize New Jersey courts to deny the pretrial release of
certain defendants. See N.J.S.A. 2A:162-15 Note. In a state-wide
referendum held on November 4, 2014, New Jersey voters approved
such an amendment by a vote of 68% to 32%. Div. of Elections,
Dep’t of State, Official List: Public Question Results for
11/04/2014 General Election Public Question No. 1 (Dec. 2,
2014), http://nj.gov/state/elections/2014-results/2014-official-
general-public-question-1.pdf.
The amendment, which took effect on January 1, 2017,
replaced Article 1, Paragraph 11 of the State Constitution
(which had previously guaranteed all criminal defendants the
right to be “bailable by sufficient sureties”) with the
following:
All persons shall, before conviction, be eligible for pretrial release. Pretrial release may be denied to a person if the court finds that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person's appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process. It shall be lawful for the Legislature to establish by law procedures, terms, and conditions applicable to pretrial release and the denial thereof authorized under this provision.
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N.J. Const. art. 1, ¶ 11. Notably, the amendment did not affect the “excessive bail” clause of the State Constitution, N.J. Const. art. 1, ¶ 12.
B. The Criminal Justice Reform Act Through enactment of the CJRA, New Jersey sought to promote three separate goals in considering conditions of pretrial release: (1) reasonably assuring the person’s appearance in court; (2) protecting the community and persons; and (3) preventing the obstruction of justice by persons awaiting trial. See N.J.S.A. 2A:162-15. To that end, the CJRA modified New Jersey’s previous criminal justice system in several ways. First, the CJRA permits judges to order the pretrial detention of certain defendants if the court “finds clear and convincing evidence that no condition or combination of conditions can reasonably assure the effectuation of [the CJRA’s] goals.” Id.; see also N.J.S.A. 2A:162-18(a)(1). Second, the CJRA shifts New Jersey’s bail system away from one that is resource-based (i.e., posting money bail) and towards one that relies upon an objective evaluation of an individual defendant’s level of risk. N.J.S.A. 2A:162-17, -25(d); see also Report of the Joint Committee on Criminal Justice at 8 (recommending that “New Jersey should move away from a largely ‘resource-based’ system of pretrial release to a ‘risk-based’ system of pretrial
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release”). Finally, the CJRA establishes speedy trial deadlines for defendants who are detained pending trial, N.J.S.A. 2A:16222, which is not at issue in this case.
1. The Pretrial Release Decision Once a complaint-warrant is issued based on a judicial officer’s finding of probable cause, an “eligible defendant”4 “shall be temporarily detained to allow the Pretrial Services Program to prepare a risk assessment with recommendations on conditions of release.” N.J.S.A. 2A:162-16(a). Within 48 hours of a defendant’s commitment to jail, the court must make a “pretrial release decision.” N.J.S.A. 2A:162-16(b)(1). In making a pretrial release decision, the court must impose “the least restrictive condition, or combination of conditions, that the court determines will reasonably assure the eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.” N.J.S.A. 2A:16217(d)(2). Thus, the purposes of pretrial release are enlarged to address concerns not only of appearance in court but also
4 Under the CJRA, “eligible defendant” is defined as “a person for whom a complaint-warrant is issued for an initial charge involving an indictable offense or a disorderly persons offense unless otherwise provided in sections 1 through 11 of P.L. 2014, c. 31.” N.J.S.A. 2A:162-15.
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protection of the safety of other persons and the community and deterring obstruction of the criminal justice process — concerns not normally addressed through monetary bail.
To assist in the pretrial release decision-making process, the CJRA provides a five-stage, hierarchical process for courts to follow. Robinson, 229 N.J. at 55-57. First, the court must order that a defendant be released on his own personal recognizance or an unsecured bond if such release is adequate to ensure the defendant’s appearance in court and safety of the public. N.J.S.A. 2A:162-16(b)(2)(a), -17(a). Second, if release on personal recognizance is inadequate, the court may release the defendant on “a non-monetary condition or conditions,5 with the condition or conditions being the least restrictive condition or combination of conditions” that are adequate to ensure the defendant’s appearance in court and the safety of the public. N.J.S.A. 2A:162-16(b)(2)(b), -17(d)(2) (emphasis added.) Third, if non-monetary conditions are inadequate, the court may release the defendant subject to monetary bail, but only to
5 Non-monetary conditions of release may, for example, require that the defendant “remain in the custody of a designated person;” “maintain employment, or, if unemployed, seek employment;” “report on a regular basis to a designated law enforcement agency . . . or pretrial services program;” “comply with a specified curfew;” “refrain from owning a firearm;” or “be placed in a pretrial home supervision capacity with or without the use of an approved electronic monitoring device.” N.J.S.A. 2A:162-17(b)(2).
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reasonably assure the defendant’s appearance in court. N.J.S.A. 2A:162-16(b)(2)(c), -17(c).6 Fourth, if the above non-monetary conditions are insufficient, the court may release the defendant subject to a combination of monetary and non-monetary conditions reasonably calculated to assure the defendant’s appearance in court and safety of the public. N.J.S.A. 2A:62-16(b)(2)(c), -17(d). Fifth, if the prosecutor has moved for pretrial detention and a judge determines no combination of monetary and non-monetary conditions are adequate to ensure the defendant’s appearance in court or safety of the public, the court may order that the defendant remain detained pending a pretrial detention hearing. N.J.S.A. 2A:162-16(b)(2)(d), -18(a)(1).
Before making any pretrial release decision for an eligible defendant, a judge is required to consider, but is not bound by, the Pretrial Services Program’s risk assessment and recommendations on conditions of release (described below). N.J.S.A. 2A:162-16. “If the court enters an order that is contrary to a recommendation made in a risk assessment when determining a method of release or setting release conditions, the court shall provide an explanation in the document that
6 As explained below, Plaintiffs assert that monetary conditions should be considered up front, rather than as a last option, because the U.S. Constitution provides a right to consideration of monetary bail.
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authorizes the eligible defendant’s release.” N.J.S.A. 2A:16223(emphasis added).
2. The Risk Assessment Instrument Under the CJRA, the Pretrial Services Program’s risk assessment must be conducted using a “risk assessment instrument” that is approved by the Administrative Director of the New Jersey Courts. N.J.S.A. 2A:162-25(c). This instrument must be “objective, standardized, and developed based on analysis of empirical data and risk factors relevant to the risk of failure to appear in court when required and the danger to the community while on pretrial release.” N.J.S.A. 2A:16225(c)(1). In partnership with the Laura and John Arnold Foundation, the New Jersey courts adopted an automated risk assessment instrument that contains a risk measurement component, called the Public Safety Assessment (“PSA”), as well as a risk management component, called the Decision Making Framework (“DMF”). Glenn A. Grant, J.A.D., New Jersey Courts, 2016 Report to the Governor and Legislature at 4 (Dec. 31, 2016), available at https://www.judiciary.state.nj.us/courts/assets/criminal/ 2016cjrannual.pdf.
a. The Public Safety Assessment Under the risk assessment instrument adopted by the New Jersey courts, the state police must first gather criminal
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history information from various law enforcement and court databases, including the NJ State Police criminal case history system, the PROMIS/GAVEL criminal database, the MACS municipal court database, and other sources. State v. C.W., 449 N.J. Super. 231, 238-39 (Mar. 21, 2017) (citing N.J. Attorney General Law Enforcement Directive No. 2016-6 at 15-16 (October 11, 2016), available at http://www.nj.gov/oag/dcj/agguide/ directives/2016-6_Law-Enforcement.pdf). The PSA then uses the information derived from these sources to address nine risk factors: (1) the defendant’s age at the time of arrest; (2) whether the offense charged is “violent”; (3) other charges pending against the defendant at the time of the alleged offense; (4) prior disorderly persons convictions; (5) prior indictable convictions; (6) prior “violent” convictions; (7) prior failures to appear at a pre-deposition court date within the two years preceding the alleged offense; (8) prior failures to appear at a pre-disposition court date more than two years preceding the alleged offense; and (9) prior sentences to incarceration of 14 days or more. C.W., 449 N.J. Super at 239; see also ACLU of New Jersey, NACDL, and NJ Office of the Public Defender, The New Jersey Pretrial Justice Manual at 8 (Dec. 2016), available at https://www.nacdl.org/NJPretrial/. These objective risk factors are race and gender neutral, and do not
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require the police to interview the defendant. 2016 Report to

the Governor and Legislature at 4.

Using an algorithm, the automated process generates the

PSA, which “scores” three different categories: (1) Failure to

Appear (“FTA”); (2) New Criminal Activity (“NCA”); and (3) New

Violent Criminal Activity (“NVCA”).

i.

Failure to Appear Score

A defendant’s FTA score, which is used to calculate the

risk that a defendant will fail to appear at future court

proceedings, is calculated using the following framework: (1) if

the defendant has a pending charge against him he receives one

point; (2) one point is added if the defendant has a prior

conviction; (3) another point is added if the defendant failed

to appear at a pre-disposition court date more than two years

ago; and (4) if the defendant failed to appear at a pre-

disposition court date within two years of the alleged offense,

two point are added (and if the defendant failed to appear at

more than one pre-disposition court dates within the past two

years, four points are added). The New Jersey Pretrial Justice

Manual at 8. The defendant’s raw score is then converted into a

six-point scale, with one being the lowest score a defendant can

receive and six being the highest. Id.

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ii.

New Criminal Activity Score

A defendant’s NCA score, which is used to predict the risk

that the defendant will commit new criminal activity while on

release, is calculated using the following framework: (1) if the

defendant is 22 years old or younger he receives two points; (2)

three points are added if there were pending charges against the

defendant at the time of the arrest; (3) one point is added if

the defendant has a prior disorderly persons offense; (4)

another point is added if the defendant has a prior conviction

for an indictable offense; (5) one more point is added if the

defendant has been convicted of a “violent” crime on one or two

occasions (if there are three or more convictions for crimes of

violence, two points are added); (6) if the defendant failed to

appear at a pre-disposition court date within two years of the

alleged offense, one point is added (and if the defendant failed

to appear at more than one pre-disposition court dates within

the past two years, two points are added); and (7) if the

defendant has previously been sentenced to a term of

incarceration, two more points are added. Id. Again, the

defendant’s raw score is converted into a six-point scale, with

one being the lowest score a defendant can receive and six being

the highest. Id.

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iii.

New Violent Criminal Activity Flag

Finally, a score is generated to determine if a criminal

defendant should be flagged for NVCA, which indicates that there

is a greater statistical likelihood the defendant will engage in

new violent criminal activity if released. A defendant receives

a NVCA flag if he scores four or more points under the following

framework: 1) a defendant receives two points if the current

offense is considered “violent”; 2) one point is added if the

offense is “violent” and the defendant is under 21; 3) an

additional point is added when the defendant has pending charges

against him at the time of the alleged offense; 4) one point is

added if the defendant has a prior conviction; and 5) one more

point is added if the defendant has one or two prior “violent”

convictions (if the defendant has three or more he receives two

points). Id. at 9. Under the CJRA, a NVCA flag “make[s] release

less likely,” and criminal defendants “who are released after

receiving a flag will be released under more onerous

conditions.” Id.

b. The Decision Making Framework

After the PSA scores are calculated, the Pretrial Services

Agency provides a recommendation to the judge in a “Decision

Making Framework” about whether a defendant should be released

pending trial and, if so, under what conditions. Id. at 10.

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The Decision Making Framework recommends a Pretrial Monitoring Level (“PML”) for each criminal defendant, which ranges from release on one’s own recognizance (“ROR”) to pretrial detention. Id. A defendant released ROR will have no conditions or restrictions placed on them. Id. At PML 1, a defendant is required to report to a pretrial services officer by phone once per month. Id. At PML 2, a defendant must report to a pretrial services officer once a month in person, once a month by telephone, and be subject to monitored conditions such as a curfew. Id. At PML 3, a defendant is monitored in-person or by phone every week, and he is subject to additional monitored conditions. Id. At PML 3 Plus Electronic Monitoring or Home Detention (“PML 3+”), a defendant is subject to all the same conditions previously described, but may also be confined to their home and/or required to wear a GPS monitoring device on their ankle at all times. Id. Finally, as an option of last resort, a defendant will be detained in jail pending trial. Id.
The DMF is a four-step process. First, as described in See Section II.B.2.a, supra, the defendant’s PSA is completed to produce FTA and NCA scores and a flag for NVCA. Id. Second, the court determines whether the pending charges are serious enough on their own to warrant a recommendation of “release not recommended; if released maximum conditions,” irrespective of the PSA. Id. Such charges include murder, aggravated
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manslaughter, aggravated sexual assault, and carjacking. Id. Pretrial detention (or PML 3+, if released) is also recommended when the defendant receives an NVCA flag in the PSA and the charged offense is “violent.” Id. Third, the court applies the FTA and NCA scores to a DMF matrix. Id. at 11 (chart describing DMF matrix.) Fourth, the court determines whether the defendant has been charged with a No Early Release Act crime. Id. (citing N.J.S.A. 2C:43-7.2, 30:4-123.51(b)). If so, the recommended PML is increased by one level (e.g., from ROR to PML 1 or from PML 1 to PML 2). The New Jersey Pretrial Justice Manual at 11.
3. The Pretrial Detention Hearing If a prosecutor applies for pretrial detention,7 the court must hold a pretrial detention hearing no later than the defendant’s first appearance or within three days of the prosecutor’s motion. N.J.S.A. 2A:162-19(d)(1). The court may, however, grant a continuance of up to three days upon request by the prosecutor or up to five days upon request by the defendant. Id. At the pretrial detention hearing, the defendant has a right to be represented by counsel and, if indigent, have counsel appointed. N.J.S.A. 2A:162-19(e)(1). The defendant also
7 The CJRA enumerates the offenses for which a prosecutor may seek pretrial detention. See N.J.S.A. 2A:162-19(a) (including, for present purposes, aggravated assault).
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has the right to testify, present witnesses, cross-examine any of the prosecutor’s witnesses, and present information by proffer. Id. The prosecutor, meanwhile, carries the burden to establish probable cause that the eligible defendant committed the predicate offense. N.J.S.A. 2A:162-19(e)(2).
Ultimately, the court may order the defendant detained only if the judge finds by “clear and convincing evidence that no amount of monetary bail, non-monetary conditions of pretrial release[,] or combination of monetary bail and conditions” are adequate to ensure the defendant’s appearance in court, the safety of the public, and that the eligible defendant will not obstruct or attempt to obstruct justice. N.J.S.A. 2A:16218(a)(1), -19(e)(3).
In making a pretrial detention hearing determination, the court may take into account information including: (a) the nature and circumstances of the offense charged; (b) the weight of the evidence against the eligible defendant; (c) the history and characteristics of the eligible defendant; (d) the nature and seriousness of the danger that would be posed by the eligible defendant’s release; (e) the nature and seriousness of the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant’s release; and (f) the PSA and DMF prepared by the Pretrial Services Program (described above). N.J.S.A. 2A:162-20. Thus, at
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the detention hearing, the PSA and DMF scores are not binding or even presumptive of the judge’s determination of detention or release, but are factors that must be considered, along with others, to adjudicate whether the prosecution has met its burden of detention.
If the court orders a defendant detained pending trial, the judge must “include written findings of fact and a written statement of . . . reasons” in an order. N.J.S.A. 2A:162-21(a). If the court authorizes a defendant’s release contrary to the Pretrial Services Program’s recommendation, “the court shall provide an explanation” in the order of release. N.J.S.A. 2A:162-23(a)(2).
A defendant has the right to appeal a judge’s pretrial detention hearing decision. N.J.S.A. 2A:162-18(c). Any such appeal “shall be heard in an expedited manner.” Id.
Additionally, under the New Jersey Court Rules, “a Superior Court may review the conditions of pretrial release . . . on its own motion, or upon motion by the prosecutor or the defendant alleging that there has been a material change in circumstance that justifies a change in conditions.” N.J.S.A. 3:26-2(c)(2). Under this Rule, any review of conditions “shall be decided within 30 days of the filing of the motion.” Id.
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C. Effect of the CJRA on New Jersey’s Criminal Justice System
The Criminal Justice Reform Act took effect on January 1, 2017. N.J.S.A. 2A:162-15. This reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial, as shown by the following statistics.
According to statistics published by the New Jersey Courts, on June 30, 2017, there were 5,717 inmates pending trial. New Jersey Courts, CJRA Statistics, Chart C, available at https://www.judiciary.state.nj.us/courts/assets/criminal/cjrearl yreport1.pdf. By comparison, on the same day in 2015, there were 8,845 inmates waiting for trial. Id. This drop in the pretrial jail population represents a 35.4% decrease over a two-year period. Id.; see also Smith Decl. at ¶ 12.
Between January 1 and June 30, 2017, 9.9% of eligible defendants were released on their own recognizance, 21.5% were released under PML 1, 14.7% were released under PML 2, 25.8% were released under PML 3, 10.8% were released under PML 3+, and only 14.2% were detained. CJRA Statistics, Chart A.
Furthermore, detention motions have not been automatically granted. Over the same six-month period, for example, 60% of
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prosecutors’ detention motions were granted, while 40% were denied. CJRA Statistics, Chart B.
D. Plaintiff Holland On April 6, 2017, Holland was arrested and charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(B)(1). (Exs. A, B, & C to Feldman Decl.) According to police records, Holland engaged in an altercation with an unnamed individual in the parking lot of Joe’s Tavern in Sicklerville, New Jersey. (Holland Decl. at ¶ 7; Ex. C to Feldman Decl.) First, Holland allegedly struck the unnamed individual in the face, causing him to fall to the ground. (Id.) Then, once the unnamed individual was on the ground, Holland allegedly “continued to strike [him] repeatedly about the head and face causing serious bodily harn [sic][,]” including multiple face fractures. (Id.) According to police records, Holland fled the scene and was later arrested at his home, where “[h]is clothing was covered in fresh blood.” (Id.) The Pretrial Services Program in Camden County collected information for Holland’s Public Safety Assessment for determination of detention or release by the judge.8 As the parties acknowledged at oral argument, Holland ultimately
8 Of note, prior to the alleged incident that led to Holland’s arrest, he had been convicted of simple assault, (Feldman Decl. ¶ 8), which New Jersey law treats as a disorderly persons offense, N.J.S.A. 2C:12-1(a).
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received a PSA score of 2 (out of 6) for Failure to Appear, a score of 2 (out of 6) for New Criminal Activity, and was flagged for NVCA. [Docket Item 42; see also Docket Item 43.]9 Due to the NVCA flag, the DMF generated by the Pretrial Services Program recommended that Holland be detained pending trial. (Feldman Decl. ¶ 7.)
Consistent with the CJRA and Attorney General Directive 2016-6, Section 7.4.1, Camden County Assistant Prosecutor Leo Feldman prepared a motion for Holland’s pretrial detention. (Feldman Decl. at ¶ 8.) On April 7, 2017, Assistant Prosecutor Geraldine Zidow submitted a Notice to the Camden County Superior Court, explaining that the State planned to move for Holland’s pretrial detention. (Ex. E of Feldman Decl.) Assistant Prosecutor Zidow also filed a Certification, affirming that Holland “is charged with a crime and there is a serious risk that: the defendant will not appear in court as required [and] the defendant will pose a danger to any other person or the community.” (Id.)
9 It is not clear from the record how Holland received such low PSA scores, but still received a flag for NVCA. Assuming Holland was given the minimum four points required under the NVCA framework to receive a flag, the Court deduces that the PSA calculated Holland’s NVCA score as follows: two points under Factor 1 for Holland’s pending second-degree assault charges; one point under Factor 4 for Holland’s prior simple assault conviction; and one point under Factor 5, again, for Holland’s prior simple assault conviction.
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Prior to Holland’s pretrial detention hearing, Assistant
Prosecutor Feldman met with Holland’s court-appointed attorney,
Brad Wertheimer, Esq. (Feldman Decl. ¶ 9.) At this meeting, Mr.
Wertheimer agreed to recommend to his client that, in exchange
for Prosecutor Feldman withdrawing the prosecution’s motion for
pretrial detention, Holland would agree to be released under PML
Level 3+, which would include house arrest (except for
employment), electronic monitoring by GPS monitoring device,
weekly reporting, and no contact with the victim. (Id. at ¶ 10.)
On April 11, 2017, a pretrial detention hearing was held
before the Honorable Kathleen Delaney, J.S.C. (Id. at ¶ 14; Ex.
G to Feldman Decl.) During the hearing, Holland agreed to a
level PML 3+ in exchange for the State withdrawing its
application for detention. (Id. at 4:17-25; 5:1-8.) After
finding that Holland was indigent,10 the court waived the cost of
10 The record is incomplete regarding Holland’s financial status and his ability to meet a reasonable monetary bail if one were set in lieu of the non-monetary conditions he complains of. In the Superior Court, he has been determined to be indigent and is represented by the Public Defender (Feldman Decl. ¶ 19), and the judge waived Holland’s fee for the electronic monitoring device due to indigency (Tr. Apr. 11, 2017 at 5:18-19). On the other hand, Holland has full-time employment as a lead journeyperson (Tr. Apr. 11, 2017 at 4:1-5), and his counsel asserts that “with the help of a bail bondsman, he could have posted bail to secure his release at trial” (Pl. Rep. Br. at 3), and that under the previous system of monetary bail, he “would have used his own financial resources or those of his family (likely with the help of a surety like Lexington) to pay the required amount for release.” (Pl. Rep. Br. at 15, citing Holland Decl. ¶ 11.) The amount of his hypothetical monetary bail is unknown, as is his
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the ankle bracelet. (Id. at 5:18-19.) The court also granted Holland permission to go to work. (Id. at 4:1-6; 5:1-2.) Holland was subsequently released, subject to the PML Level 3+ terms outlined above. (Holland Decl. at ¶ 18.)
According to Holland, under home detention, he “cannot shop for food or other necessities,” nor can he take his son to baseball practices, “which is an important aspect of [his] custodial responsibilities and efforts to bond with [his] child.” (Id. at ¶¶ 21-22.) Under electronic monitoring, Holland must wear a GPS tracking device around his ankle at all times, including within cord-length of an electrical outlet, while the ankle bracelet charges, for two hours each day. (Id. at ¶ 24.) Holland also avers that the ankle bracelet is “a source of public stigma and shame,” and “is bulky, uncomfortable, restrictive, and makes it more difficult to live [his] life and do [his job].” (Id. at ¶¶ 25-26.) Finally, Holland explains that the bi-monthly, in-person reporting requirement “requires [him]
ability — with or without a bondsman — to meet the required amount. It is possible, and perhaps likely, that Holland, accused of a serious crime of violence and presenting the flight risk of one who allegedly fled from the scene of the crime, would have been, before January 1, 2017, in the large category of individuals who were detained because they could not meet the high monetary bail requirements, notwithstanding the availability of bail bonding. In other words, to the extent Holland’s case rests on the premise that he would be released on monetary bail without significant non-monetary conditions, that hypothetical is doubtful in his circumstances.
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to leave [his] job and travel to the pretrial services office, even if the trip would interfere with [his] work.” (Id. at ¶ 28.) Collectively, Holland states, these conditions have “severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.” (Id. at ¶ 29.)
Holland has never sought a judicial determination of his conditions of release, nor has he sought modification in the Superior Court of the conditions to which he agreed.
E. Plaintiff Lexington Lexington National Insurance Corporation is a Florida Corporation based in Maryland. (Wachinski Decl. at ¶¶ 3-4.) Lexington operates across the country, primarily for the purpose of underwriting bail bonds and acting as a surety of bail bonds. (Id. at ¶ 6.) In New Jersey, Lexington operates through independent insurance producers (bail bondsmen), who are licensed by the state’s Department of Banking and Insurance and registered with the Superior Court Clerk. (Id. at ¶ 8.) Lexington alleges that, as a result of the CJRA, its business has been “severely harmed.” (Id. at ¶ 9.) According to Lexington, the CJRA “dramatically reduc[ed] the number of defendants given monetary bail and thus dramatically reduc[ed] [Lexington’s] opportunity to act as surety on bail bonds.” (Id.) That the CJRA has all but eliminated the use of money bail and
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bail bonds to secure pretrial release is indeed demonstrated by the data, as discussed above.
F. The State Defendants Defendant Kelly Rosen is the Team Leader for Pretrial Services in the Criminal Division of the Superior Court of New Jersey. (Compl. at ¶ 18.) In this capacity, Defendant Rosen is responsible for enforcing the pretrial release conditions authorized by the CJRA and imposed on Holland. (Id.) Defendant Mary Eva Colalillo is the Camden County Prosecutor. (Id. at ¶ 19.) As Camden County Prosecutor, Defendant Colalillo is responsible for enforcing New Jersey laws, including the CJRA, in Camden County. (Id.) Defendant Christopher S. Porrino is the Attorney General of New Jersey. (Id. ¶ 20.) As Attorney General, Defendant Porrino is ultimately responsible for enforcing New Jersey’s laws, including the CJRA, across the state. (Id.) G. Procedural History On June 14, 2017, Plaintiffs simultaneously filed a class action Complaint and a Motion for a Preliminary Injunction. [Docket Items 1, 3.] On July 28, 2017, the State Defendants filed an Opposition to Plaintiffs’ Motion for a Preliminary Injunction. [Docket Items 23, 24.]11 On August 7, 2017,
11 On July 28, 2017, the State Defendants also filed a Motion to Dismiss in lieu of an Answer. [Docket Item 24.] The briefing
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Plaintiffs filed a Reply Brief to the State Defendants’ Opposition. [Docket Item 29.]
On July 21, 2017, the American Civil Liberties Union (“ACLU”), on behalf of themselves and the ACLU of New Jersey, Drug Policy Alliance, Latino Action Network, and National Association for the Advancement of Colored People – New Jersey Conference, filed a motion for leave to appear as amicus curiae. [Docket Item 18.] On August 8, 2017, the Court granted the ACLU’s request to submit a brief and participate as amicus curiae in oral argument with regard to Plaintiffs’ Motion for a Preliminary Injunction. [Docket Item 31.]
On August 22, 2017, the Court convened the Preliminary Injunction Hearing. [Docket Item 42.]
STANDARD OF REVIEW A preliminary injunction “is an extraordinary remedy . . . which should be granted only in limited circumstances.” Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994) (citation omitted). A preliminary injunction “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520
schedule was deferred pending a determination of this preliminary injunction motion. [Text Order of Sept. 5, 2017 at Docket Item 46.] The Court reserves judgment on the State Defendants’ motion until briefing has been completed by both parties.
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U.S. 968, 972 (1997) (per curiam) (internal quotations omitted; emphasis in original). “[T]he requirement for substantial proof” is much higher for “a plaintiff’s motion for preliminary injunctive relief” than it is for a “defendant’s motion for summary judgment[,]” where “one would demand some evidence . . . in order to avoid a nonsuit.” Id. (emphasis in original); see also Schuchardt v. President of the U.S., 839 F.3d 336, 351 (3d Cir. 2016) (citing Obama v. Klayman, 800 F.3d 559, 568 (D.C. Cir. 2015) for proposition that “summary judgment imposes a lighter burden than the ‘substantial likelihood of success’ necessary to obtain a preliminary injunction”).
To prevail on a motion for preliminary injunctive relief, the moving party must show as a prerequisite:
(1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured . . . if relief is not granted. . . . [In addition,] the district court, in considering whether to grant a preliminary injunction, should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest. Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017) (quoting Del. River Port Auth. v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 919-20 (3d Cir. 1974) (further internal citations omitted)). “[A] district court — in its sound discretion — should balance th[e]se four factors so long as the
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party seeking the injunction meets the threshold on the first two.” Reilly, 858 F.3d at 176.
In order to meet the threshold to establish the first factor, the moving party “must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not).” Id. at 179. However, “more than a mere possibility of relief is required” to make the required showing; the moving party must show “a reasonable probability of eventual success.” Id. at 179 n.3 (internal quotations omitted).
To satisfy the second factor, the moving party “must demonstrate . . . the probability of irreparable harm if relief is not granted.” Frank’s GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (internal quotations omitted). “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). The moving party must demonstrate that it is likely to suffer “actual or imminent harm which cannot otherwise be compensated by money damages,” or it “fail[s] to sustain its substantial burden of showing irreparable harm.” Frank’s GMC, 847 F.2d at 103; see
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also Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (“Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.”) (emphasis in original). In short, “a movant for preliminary equitable relief must . . . demonstrate . . . that it is more likely than not to suffer irreparable harm in the absence of preliminary relief.” Reilly, 858 F.3d at 179 (footnote omitted).
The third factor requires the court to “balance the parties’ relative harms; that is, the potential injury to the plaintiffs without this injunction versus the potential injury to the defendant with it in place.” Issa v. School Dist. of Lancaster, 847 F.3d 121, 143 (3d Cir. 2017). The court should also, at this stage, take into account “the possibility of harm to other interested persons from the grant or denial of the injunction.” Reilly, 858 F.3d at 176 (quoting Del. River Port Auth., 501 F.2d at 920 (further citations omitted)). “[W]hen considerable injury will result from either the grant or denial of a preliminary injunction, these factors to some extent cancel each other[.]” Del. River Port Auth., 501 F.2d at 924.
Finally, the Supreme Court has noted that “parts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.”
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Instant Air Freight, 882 F.2d at 803 (quoting Virgininan Ry. Co. v. System Fed’n No. 40, 300 U.S. 515, 552 (1937)). “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. RomeroBarcelo, 456 U.S. 305, 312 (1982). While weighing whether the public interest favors a preliminary injunction “is often fairly routine,” Issa, 847 F.3d at 143 (internal quotations omitted), “‘where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.’” Romero-Barcelo, 456 U.S. at 312-13 (quoting Yakus v. United States, 321 U.S. 414, 440 (1944)).
DISCUSSION A. Preliminary Issues
1. Standing Defendants argue that a preliminary injunction should be denied because both Holland and Lexington lack standing under Article III. (Def. Opp. Br. at 2-23; Amici Br. at 10-19.) If standing is doubtful at this stage, and pending a final determination, this factor should weigh strongly against granting a preliminary injunction. Plaintiffs contest this,
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stating that Holland has first-party standing and Lexington has both standing in its own right and third-party standing to assert the constitutional rights of potential customers. (Pl. Rep. Br. at 2-5.)
In order to demonstrate that it has standing under Article III, a plaintiff must demonstrate: “(1) an injury-in-fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Finkelman v. Nat’l Football League, 810 F.3d 187, 193 (3d Cir. 2016) (internal quotations omitted). These elements of constitutional standing may be referred to as injury (or injury-in-fact), traceability, and redressability, respectively. See Toll Bros., Inc. v. Township of Readington, 555 F.3d 131, 137-42 (3d Cir. 2009).
The Court will address the standing of each plaintiff in turn.
a. Plaintiff Holland The State Defendants argue that Holland “lacks standing because he has failed to demonstrate that his alleged injury will be redressed by a favorable judicial decision. . . . [E]ven if the Court ruled in Holland’s favor on his request for imposition of monetary bail to address flight, the challenged non-monetary conditions likely would still be imposed . . . .
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His alleged injury therefore would not be redressed.” (Def. Opp. Br. at 21.)12
In response, Plaintiffs claim that the State Defendants’ position that the same challenged conditions “likely would still be imposed” is “pure speculation and legally irrelevant.” (Pl. Rep. Br. at 3.) Plaintiff claims that he has a constitutional right to “a process where [monetary] bail was considered on an equal footing with other options to secure his release. . . . [H]is injury would be redressed without regard to the outcome of a constitutionally-compliant process. That is enough to satisfy redressability. . . . [T]his Court certainly does not need to conduct the very bail proceeding Holland was denied to resolve the threshold question of standing.” (Id.)
The Court is mindful of the requirement under Article III that as to redressability, the plaintiff must show that “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal quotations omitted).
12 Defendants do not contest that Holland has adequately alleged an injury in fact and a sufficient causal connection between that injury and the conduct he alleges to have violated his constitutional rights, thereby satisfying the elements of injury-in-fact and traceability.
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It is true that the ultimate outcome of any subsequent hearing that is or may be held in the state court with regard to Holland’s conditions of pretrial release is, as yet, unknown. Any court holding such a hearing might continue the complainedof restrictions on his liberty, regardless of giving consideration to monetary bail. In other words, despite imposing monetary bail as a restriction addressing risk of flight, there could continue to be such non-monetary conditions as restrictions on associations, curfew, in-person reporting and the like that would still need to be considered to address the risk his release may pose to the community or to other persons.
However, Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford
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him those rights will redress that injury. The Court finds that analysis persuasive to establish Holland’s standing to assert his claims. The redress he seeks is a hearing to set conditions of release where monetary bail is given a primary consideration. Whether he is likely to accomplish his objectives at a Superior Court hearing is a question for the merits, not one of standing to assert the right to such a hearing. Accordingly, the Court finds that Holland has adequately pled the necessary elements of Article III standing, including redressability.
b. Plaintiff Lexington Lexington’s standing presents a more complex and closer question.13 The parties first contest whether Lexington may assert first-party standing. (Def. Opp. Br. at 21-22; Pl. Rep. Br. at 3-4; Amici Br. at 11-12.) The parties then address whether Lexington may proceed with third-party standing under Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) (Def. Opp. Br. at 22-23; Pl. Rep. Br. at 4-5; Amici Br. at 12-19.) State Defendants and Plaintiffs also contest whether Lexington has prudential standing, i.e., whether Lexington’s interests are within the “zone of interests” intended to be protected by the statute at issue. (Def. Opp. Br. at 22; Pl. Rep. Br. at 4.)
13 The Court notes, however, that the “presence of one party with standing is sufficient to satisfy Article III’s case-orcontroversy requirement[.]” Rumsfeld v. FAIR, Inc., 547 U.S. 47, 52 n.2 (2006).
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The Court will address these in turn. i. First-Party Standing of Lexington
Amici argue that Lexington does not, in Plaintiffs’ Complaint, allege a violation of its own rights. (Amici Br. at 11.) Specifically, the Complaint alleges a violation of the right to monetary bail under the Eighth Amendment (as applied to the states through the Fourteenth Amendment), a violation of due process under the Fourteenth Amendment based on an alleged deprivation of liberty to criminal defendants, and a violation of the right against unreasonable seizures under the Fourth Amendment (as applied to the states through the Fourteenth Amendment). Amici urge that “none of those claims directly addresses the rights of Lexington National,” as the Eighth Amendment’s excessive bail clause protects the rights of criminal defendants, the Fourteenth Amendment’s “liberty clause is likewise inapplicable to corporate sureties in this context,” and the Fourth Amendment claim relates to the burden on Holland of wearing a GPS monitor. (Id. at 11-12.)
The State Defendants add that Lexington lacks first-party standing because its alleged injury is not concrete and particularized, but rather is generalized and abstract, which is an injury “shared by many others in the bail bonds industry that are similarly situated.” (Def. Opp. Br. at 21.) Lexington, they note, does not assert that it had an agreement in place with
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Holland or any other criminal defendant to provide a bail bond, that it could not consummate due to the allegedly unlawful actions of Defendants; rather, it only asserts “that it ‘likely’ would have been able to help Holland post money bail.” (Def. Opp. Br. at 17, citing Compl. at ¶ 5.)
In response, Plaintiffs argue that “Lexington has standing in its own right,” as it has “suffered a concrete and particularized injury — the ‘collapse of [its] business,’ a paradigmatic economic injury.’ . . . That Lexington’s injury is shared by others in the industry does not make it any less cognizable.” (Pl. Rep. Br. at 3-4 (internal citation omitted).)
The Court agrees with Plaintiffs that Lexington has adequately alleged a concrete and particularized injury. Plaintiffs have submitted an affidavit of Nicholas J. Wachinski, the CEO of Lexington, wherein he avers that “[t]he . . . CJRA [] has severely harmed Lexington National’s business by dramatically reducing the number of defendants given the option of monetary bail and thus dramatically reducing Lexington National’s opportunity to act as surety on bail bonds.” (Wachinski Decl. at ¶ 9.) The Court agrees that this injury is concrete and particularized enough to constitute an injury-infact. See Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 291 (3d Cir. 2005) (“While it is difficult to reduce
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injury-in-fact to a simple formula, economic injury is one of its paradigmatic forms.”).
However, the Court finds that Lexington does not, in fact, assert violations of its own constitutional rights that led to such an injury. The injury-in-fact requirement mandates that there be “an invasion of a legally protected interest.” Lujan, 504 U.S. at 560. Cf. Danvers, 432 F.3d at 292 (“The complaint is replete with assertions of cognizable harm . . . [describing] ‘Ford dealers who have suffered economic injury-in-fact as a result of . . . the invasion by Defendant . . . of its dealers’ legally protected interests . . . .’”); Out Front Productions, Inc. v. Magid, 748 F.2d 166, 168 (3d Cir. 1984) (plaintiff “claims a direct economic injury traceable to defendants’ actions that allegedly violated the antitrust laws.”); White v. United States, 601 F.3d 545, 555 (plaintiffs “still must demonstrate an injury-in-fact to a legally protected interest”). This invasion is what must result in the injury to the plaintiff. Here, Lexington has alleged that it has been harmed. The Court nevertheless finds that the harm it has allegedly suffered is not alleged to be the result of an invasion of Lexington’s legally protected interest. See Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988) (“Even if an injury in fact is demonstrated, the usual rule is that a party may assert only a violation of its own rights”).
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The Court is persuaded that the Eighth Amendment’s bail clause protects the interests of criminal defendants, not corporations who seek to provide bail bonds to them. See Johnson Bonding Co., Inc. v. Com. of Ky., 420 F. Supp. 331, 337 (E.D. Ky. 1976) (a bail bond company “does not seek to vindicate its right to be free from excessive bail. A corporation cannot go to jail. Rather, plaintiff seeks to continue in the bail bonding business”) (citing United States v. Raines, 362 U.S. 17, 22 (1960) (“a litigant may only assert his own constitutional rights or immunities”)); United States v. Chaplin’s, Inc., 646 F.3d 846, 851 n.15 (11th Cir. 2011) (where corporation claims a court order constitutes an excessive fine in violation of the Eighth Amendment, court “assumes, but does not hold, that the Eighth Amendment applies to corporations” as the “Supreme Court has never held that this amendment applies to corporations”); see also Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 275 (1989) (“We think it clear . . . that the Eighth Amendment places limits on the steps a government may take against an individual, whether it be keeping him in prison, imposing excessive monetary sanctions, or using cruel and unusual punishments”) (emphasis added). This is especially true where Lexington is not named as a criminal defendant, is not confined, and does not identify a
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constitutional right that it holds as a corporation that it seeks to vindicate.
Similarly, the Court does not see how the Due Process or Fourth Amendment claims in Plaintiffs’ Complaint constitute an invasion of Lexington’s legally-protected interests, despite the harms to Lexington’s business that will allegedly result from the CJRA’s application to Lexington’s potential customers. The Court agrees with Amici that Lexington does not “assert[] its own constitutional rights.” (Amici Br. at 12.) Accordingly, the Court finds that Lexington lacks first-party standing on the basis of an alleged violation of its constitutional rights.
ii. Third-Party Standing of Lexington Defendants and Amici argue that Lexington also lacks thirdparty standing. (Def. Opp. Br. at 22-23; Amici Br. at 12-19.) Plaintiffs respond that Lexington “has third-party standing to assert the constitutional rights of potential customers denied bail under the CJRA.” (Pl. Rep. Br. at 4-5.) The parties agree that the Third Circuit recognizes thirdparty standing, see Pa. Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 288 (3d Cir. 2002), and that Triplett, 494 U.S. at 720, provides an appropriate basis to assess whether Lexington has such standing in this case. However, the parties’ argument primarily lies within the bounds of contesting whether or not Lexington meets the standard for
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third-party standing as described in Triplett, and does not fully address whether the other “preconditions” for third-party standing, as described in Pa. Psychiatric Soc’y, are met.
The Court notes at the outset that “[t]he restrictions against third-party standing do not stem from the Article III ‘case or controversy’ requirement, but rather from prudential concerns . . . which limit access to the federal courts to those litigants best suited to assert a particular claim.” Pa. Psychiatric Soc’y, 280 F.3d at 287-88. “It is a well-established tenet of standing that a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Id. at 288.
The Third Circuit has described third-party standing as an exception to this “well-established tenet”:
In particular, if a course of conduct prevents a third-party from entering into a relationship with the litigant (typically a contractual relationship), to which relationship the third party has a legal entitlement, third-party standing may be appropriate. Pa. Psychiatric Soc’y, 280 F.3d at 288 (quoting Triplett, 494 U.S. at 720). The parties’ briefs devote substantial effort toward arguing about whether the CJRA and Defendants’ alleged unlawful actions prevent criminal defendants (here, the third party) from entering into a contractual relationship with Lexington (here, the litigant), to which relationship the criminal defendants
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have a legal entitlement. A finding of that situation might
satisfy Triplett, but it does not end the inquiry. As the Third
Circuit has stated:
The Supreme Court has found that the principles animating these prudential concerns [about third-party standing] are not subverted if the third party is hindered from asserting its own rights and shares an identity of interests with the plaintiff. . . . More specifically, third-party standing requires the satisfaction of three preconditions: 1) the plaintiff must suffer injury; 2) the plaintiff and the third party must have a “close relationship”; and 3) the third party must face some obstacles that prevent it from pursuing its own claims. It remains for courts to balance these factors to determine if third-party standing is warranted.
Pa. Psychiatric Soc’y, 280 F.3d at 288-89 (internal quotations
omitted); see also The Pitt News v. Fisher, 215 F.3d 354, 362
(3d Cir. 2000) (if same three preconditions are met, “a
plaintiff who meets all these criteria, but who would otherwise
lack Article III standing to sue because his or her own legally
protected rights were not injured, may assert the rights of a
third party.”); Campbell v. Louisiana, 523 U.S. 392, 397-98
(1998) (same “three preconditions” must be satisfied to assert
the rights of a third party); Powers v. Ohio, 499 U.S. 400, 410-
11 (1991) (same “three important criteria” must be satisfied).
Assuming, without deciding, that criminal defendants (like
Holland) are prevented from entering into a contractual
relationship with a bail bonds company like Lexington, and that
those defendants have a constitutional entitlement to that
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relationship and/or to monetary bail, thereby satisfying the dictates of Triplett, Lexington still does not articulate how it can satisfy the third necessary precondition to third-party standing under clear Third Circuit precedent.
As discussed above, the Court finds that Lexington has suffered an injury that gives it “a ‘sufficiently concrete interest’ in the outcome of the issue in dispute.” Powers, 499 U.S. at 411. This satisfies the first precondition.
Whether Lexington satisfies the second precondition of a “close relationship” between the plaintiff and the third party whose rights it purports to assert is a closer question. The factual allegations here do not establish a “close relationship” in the colloquial or commonsense meaning of the phrase (as Lexington does not allege an existing contractual relationship with Holland or any criminal defendant whose rights have been violated, and avers only that it “would be ready, willing, and able to act as a bail bonds surety” for criminal defendants in New Jersey if monetary bail “were again an option” for them).14 However, the Third Circuit has stated that “[t]o meet this standard, this relationship must permit the [proposed plaintiff]
14 The Court notes that Holland avers that “if offered the option of pre-trial release on monetary bail, [he] would have posted bail to obtain [his] pre-trial liberty” and “would have used resources of [his] own and of [his] family, and likely would have engaged a professional bondsman and insurance company.” (Holland Decl. at ¶¶ 10-11.)
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to operate fully, or very nearly, as effective a proponent of [the third parties’ rights] as the [third parties] themselves.” Pa. Psychiatric Soc’y, 280 F.3d at 289. Here, the Court will assume that the relationship between Lexington and the criminal defendants is sufficiently close that Lexington “could efficaciously advocate their . . . interests.” Id.
However, Plaintiffs do not contend, and the Court does not see how they can do so, that the criminal defendants “face some obstacles,” id., or that there is “some hindrance,” Campbell, 523 U.S. at 397, in pursuing their own claims. It is undisputed that Holland is one such criminal defendant, and he has apparently faced no obstacle nor hindrance in asserting his claim that his rights were violated. Indeed, the Court has already found that Holland has standing under Article III. See Section IV.A.1.a, supra. Holland is a named plaintiff in this action and has been pursuing claims that his constitutional rights were violated with strength and vigor. The Court cannot discern a basis, then, to allow for third-party standing for Lexington (as a matter of prudential standing, rather than Article III standing), where the “third party” is actually a named plaintiff actively participating in the instant case.
Accordingly, the Court finds, at the present juncture, that it appears unlikely that Lexington has satisfied the necessary
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preconditions to establish third-party standing in this action.15 However, as noted above, the Court may nevertheless proceed in its assessment of the arguments on the merits as the “presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement[.]” Rumsfeld, 547 U.S. at 52 n.2. Holland has such standing.
iii. Prudential Standing Finally, the State Defendants urge that Lexington lacks prudential standing in another respect: namely, that the injury to Lexington “fall[s] well outside the zone of interests of the Eighth, Fourteenth, and Fourth Amendments[.]” (Def. Opp. Br. at 22.) In response, Plaintiffs argue that “the Supreme Court recently disavowed the ‘zone-of-interests test’ as a prudential standing requirement, holding instead that a court must determine ‘whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.’” (Pl. Rep. Br. at 4, quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 (2014).)
15 The Court expects that the parties will more completely address the issue of Lexington’s third-party standing and the implications of the preconditions described in the Supreme Court’s precedents in Powers and Campbell and the Third Circuit’s precedent in Pa. Psychiatric Soc’y when briefing Defendants’ Motion to Dismiss. See FN 11, supra.
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“Unlike constitutional standing, which involves absolute and irrevocable justiciability requirements under Article III, prudential standing is a judicially created doctrine relied on as a tool of ‘judicial self-governance.’” Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 349 (6th Cir. 2007) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
The Third Circuit has recently stated: We have previously categorized the zone-of-interests requirement as one of three components of prudential standing. . . . The other two components of prudential standing are that a plaintiff must first “assert his or her own legal interests rather than those of third parties,” and second must not assert “generalized grievances” that require courts to “adjudicat[e] abstract questions.” Maher Terminals, LLC v. Port Auth. of N.Y. and N.J., 805 F.3d 98, 105, 105 n.5 (3d Cir. 2015) (internal citations omitted). The “zone-of-interests” test requires that “the plaintiff’s complaint fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question[,]” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982) (internal quotations omitted), and the plaintiff “must show that his interests are more than ‘marginally related to . . . the purposes implicit in the statute’” or law, Programmers Guild, Inc. v. Chertoff, 338 Fed. App’x 239, 242 (3d Cir. 2009) (citing Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399-400 (1987)).
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In Lexmark, however, the Supreme Court stated: “Although we
admittedly have placed [the zone-of-interests] test under the
‘prudential [standing]’ rubric in the past, . . . it does not
belong there . . . . Whether a plaintiff comes within the zone
of interests is an issue that requires us to determine, using
traditional tools of statutory interpretation, whether a
legislatively conferred cause of action encompasses a particular
plaintiff’s claim.” 134 S. Ct. at 1387 (internal quotations
omitted). Interpreting Lexmark, the Court has recently stated:
This Court has also referred to a plaintiff’s need to satisfy “prudential” or “statutory” standing requirements. See Lexmark, . . . 134 S. Ct. at 1387 and n.4. In Lexmark, we said that the label “prudential standing” was misleading, for the requirement at issue is in reality tied to a particular statute. Ibid. The question is whether the statute grants the plaintiff the cause of action that he asserts. In answering that question, we presume that a statute ordinarily provides a cause of action “only to plaintiffs whose interests fall within the zone of interests protected by the law invoked.” Id. at 1388.
Bank of Am. Corp v. City of Miami, 137 S. Ct. 1296, 1302 (2017)
(emphasis added).
The Third Circuit has said that “Lexmark strongly suggests
that courts shouldn’t link the zone-of-interests test to the
doctrine of standing,” but has applied the zone-of-interests
test to discern whether a plaintiff adequately states a claim
under a particular statute. See Maher, 805 F.3d at 105-06, 110
(“[W]hile we hold that the District Court should not have
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couched its conclusion in terms of standing after Lexmark, we agree with the District Court’s essential holding: Maher, as a landside entity, is outside the Tonnage Clause’s zone of interests. . . . Accordingly, Maher failed to state a Tonnage Clause claim.”).
The Third Circuit has thus maintained that the zone-ofinterests test has continued vitality, but with regard to whether a plaintiff states a claim, rather than whether that plaintiff has standing. Id. at 110. In light of that, the Court declines to find that Lexington lacks prudential standing under the “zone-of-interests” test.16
2. Younger Abstention Defendants argue that the Court must abstain from interfering with Holland’s ongoing state criminal prosecution, pursuant to Younger v. Harris, 401 U.S. 37 (1971). (Def. Opp. Br. at 23.) In response, Plaintiffs argue that Younger abstention is inappropriate where a defendant in state court does not challenge the state prosecution as such, but rather pre-trial procedures, citing Gerstein v. Pugh, 420 U.S. 103, 108 n.9. (Pl. Rep. Br. at 6.)
16 Defendants are, of course, free to re-assert this zone-ofinterests argument as part of an argument that Lexington fails to state a claim. The Court expresses no opinion on the merits of such a potential issue.
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In Younger, the Supreme Court held that “settled doctrines . . . have always confined very narrowly the availability of injunctive relief against state criminal prosecutions.” 401 U.S. at 53. It found that an injunction was inappropriate where the state-court defendant claimed that a statute on its face violated his constitutional rights, but where “there [wa]s no suggestion that this single prosecution against Harris [wa]s brought in bad faith or [wa]s only one of a series of repeated prosecutions to which he [would have] be[en] subjected,” which would constitute “extraordinary circumstances” and justify a departure from those “settled doctrines.” Id. at 49, 53. Furthermore, “a proceeding was already pending in the state court, affording Harris an opportunity to raise his constitutional claims.” Id. at 49. The Supreme Court has stated that “[t]he policy of equitable restraint expressed in Younger v. Harris, in short, is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Kugler v. Helfant, 421 U.S. 117, 124 (1975) (citing Steffel v. Thompson, 415 U.S. 452, 460 (1974)).
In Gerstein v. Pugh, 429 U.S. 103 (1975), however, the Supreme Court arguably narrowed the scope of Younger abstention. In that case, the state-court defendant Pugh requested injunctive relief from a federal district court, claiming a
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constitutional right to a judicial hearing on the issue of probable cause, and asking the court to order such a hearing. 420 U.S. at 106-07. “The District Court ordered the Dade County defendants to give the named plaintiffs an immediate preliminary hearing to determine probable cause for further detention.” Id. at 107-08.
The Court then noted: The District Court correctly held that respondents’ claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions, Younger v. Harris, 401 U.S. 37 (1971). The injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits. Id. at 108 n.9. Other courts have since relied on the distinction articulated in Gerstein at Note 9 as to whether abstention pursuant to Younger is appropriate. Shortly after Gerstein was decided, the Third Circuit found a district court’s abstention pursuant to Younger to be appropriate, and directly addressed the applicability of Note 9 in Gerstein, where the state-court defendant sought a federal injunction prohibiting “sessions on Friday, the Islamic Sabbath of appellant, in a pending criminal trial in state court when available state procedures to remedy the alleged constitutional
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infringement have not been exhausted.” State of N.J. v.
Chesimard, 555 F.2d 63, 64 (3d Cir. 1977).
In that case, the state-court defendant’s “free exercise
right could not be asserted as a defense to the criminal
prosecution[,]” but it was “equally true that the right could
not be raised in the absence of a criminal prosecution” and was
in fact . . . asserted as part of an ongoing criminal prosecution. Ms. Chesimard raised her free exercise claim by pre-trial motion in the state court. Although the state system provides for interlocutory review of the adverse ruling she received, Ms. Chesimard has chosen not to pursue her available state remedies to their fullest extent. Under these circumstances, we believe the federal hand must be stayed[, pursuant to Younger and . . . ] Huffman v. Pursue, Ltd., 420 U.S. [592,] 609 [(1975)].
Chesimard, 555 F.2d at 66-67. The court in Chesimard also noted
that its decision does not
under these circumstances do violence to the traditional notion that exhaustion of state judicial remedies is ordinarily not a prerequisite to relief sought under 42 U.S.C. § 1983 . . . . [The holding in Monroe v. Pape, 365 U.S. 167, 183 (1967), that] “one seeking redress under . . . § 1983 for a deprivation of federal rights need not first initiate state proceedings based on related state causes of action . . . ha[s] nothing to do with the problem presently before us, that of the deference to be accorded to state proceedings which already have been initiated and which afford a competent tribunal for the resolution of federal issues.
Chesimard, 555 F.2d at 67 (citing Huffman, 420 U.S. at 609
n.21).
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Furthermore, the Chesimard Court found Gerstein inapposite;
although “[p]ersuasive arguments can be made on either side” as
to the issue it saw as dispositive under Gerstein of whether an
order prohibiting trial on Fridays “would ‘prejudice the conduct
of the trial on the merits,’ [Gerstein,] 420 U.S. at 108, n.9,”
the Third Circuit ruled that “to permit federal intervention
here when state interlocutory appellate review remains available
would unnecessarily displace the state’s supreme court of its
role in supervising the conduct of trials in state courts. . . .
[T]he intervention here would deprive the New Jersey Supreme
Court of an opportunity to review a discrete judicial ruling in
a pending trial[,]” and found that Younger “is applicable in the
present posture of the case.” Chesimard, 555 F.2d at 68.17
In a different and more recent case, however, the Third
Circuit has applied Gerstein and Younger and found abstention
17 See also Wallace v. Kern, 520 F.2d 400, 405-08 (2d Cir. 1975) (analyzing Note 9 of Gerstein in case where plaintiffs sought new bail procedures and finding that Gerstein was distinguishable because the Gerstein Court “emphasize[d]” that the plaintiffs there had effectively unavailable remedies under state law to press their constitutional claim and because the Gerstein plaintiffs’ claims had been repeatedly rejected by Florida courts; and abstaining pursuant to Younger, stating that upholding the lower court’s injunction would constitute “federal judicial legislation which is not only offensive to state sensibilities but is contrary to the admonition in Gerstein on this very point[, citing Gerstein, 420 U.S. at 123: ‘[W]e recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure . . . [and] we recognize the desirability of flexibility and experimentation by the States.’]”).
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inappropriate in a case where “the equitable relief requested is
not aimed at state prosecutions, but at the legality of the re-
arrest policy and the pretrial detention of a class of criminal
defendants. The issues here raised could not have been raised in
defense of [the plaintiff’s] criminal prosecution, and the
injunction sought would not bar his prosecution.” Stewart v.
Abraham, 275 F.3d 220, 225 (3d Cir. 2001). The Third Circuit
also cited Moore v. Sims, 442 U.S. 415 (1979), in which the
Supreme Court “distinguished Gerstein from the case before it”
on the basis that, in Gerstein, “the action was not barred by
Younger because the injunction was not addressed to a state
proceeding and therefore would not interfere with the criminal
prosecutions themselves. The order to hold preliminary hearings
could not prejudice the conduct of the trial on the merits.”
Stewart, 275 F.3d at 226 (quoting Moore, 442 U.S. at 431)
(internal quotations omitted).18
18 But see Moore, 442 U.S. at 430 n.12 (“In sum, the only pertinent inquiry [as to whether a federal court ought interject itself into a constitutional dispute in state court regarding a state law] is whether the state proceedings afford an adequate opportunity to raise the constitutional claims, and Texas law appears to raise no procedural barriers. . . . The proposition that claims must be cognizable ‘as a defense’ in the ongoing state proceeding, as put forward by our dissenting Brethren . . . converts a doctrine with substantive content into a mere semantical joust. There is no magic in the term ‘defense’ when used in connection with the Younger doctrine if the word ‘defense’ is intended to be used as a term of art. We do not here deal with the long-past niceties which distinguished among ‘defense,’ ‘counterclaims,’ ‘setoffs,’ ‘recoupments,’ and the
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Younger abstention has been expanded over the years from its original context in criminal proceedings to apply in other types of proceedings. See Huffman, 420 U.S. at 604 (abstention under Younger appropriate in state civil proceeding that is “both in aid of and closely related to criminal statutes” and where state’s interest “is likely to be every bit as great as it would be . . . [in] a criminal proceeding”); Trainor v. Hernandez, 431 U.S. 434, 441, 444 (1975) (“[T]he principles of Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this [for the return of money obtained via alleged welfare fraud], brought by the State in its sovereign capacity[,]” for reasons of federalism and comity); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10-14 (1987) (abstention under Younger appropriate with regard to state civil proceedings that seek to enforce the orders and judgments of the state’s courts).
like. As we stated in Juidice v. Vail, 430 U.S. [327,] 337 [(1977)]: ‘Here it is abundantly clear that appellees had an opportunity to present their federal claims in the state proceedings. No more is required to invoke Younger abstention. . . . Appellees need be accorded only an opportunity to fairly pursue their constitutional claims in the ongoing state proceedings . . . and their failure to avail themselves of such opportunities does not mean that the state procedures were inadequate.’”) (omissions and emphasis in original).
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In response to this, the Supreme Court has recently
described at greater length the limited circumstances when it is
appropriate for a lower court to invoke Younger abstention:
In the main, federal courts are obliged to decide cases within the scope of federal jurisdiction. Abstention is not in order simply because a pending state-court proceeding involves the same subject matter. . . . Younger exemplifies one class of cases in which federal-court abstention is required: When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution. . . . Circumstances fitting within the Younger doctrine, we have stressed, are “exceptional”; they include, as catalogued in [New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989) (“NOPSI”)], “state criminal prosecutions,” “civil enforcement proceedings,” and “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Id. at 367-68.
Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013).
The Third Circuit has stated that “Sprint offers a forceful
reminder of the longstanding principle that federal courts have
a ‘virtually unflagging’ obligations to hear and decide cases
within their jurisdiction.” ACRA Turf Club, LLC v. Zanzuccki,
748 F.3d 127, 138 (3d Cir. 2014) (quoting Sprint, 134 S.Ct. at
591, and Colo. River Water Conservation Dist. v. United States,
424 U.S. 800, 817 (1976)).
The Third Circuit has also stated:
In Middlesex[ Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982)], the Court noted that abstention is appropriate where there is an ongoing state proceeding that (1) is judicial in nature, (2)
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implicates important state interests, and (3) provides an adequate opportunity to raise federal challenges. Middlesex, 457 U.S. at 432. . . .
In Sprint, the Court repudiated th[e] practice [in subsequent decisions of lower courts of “exclusively applying these three factors as if they were the alpha and omega of the abstention inquiry”], explaining that the Middlesex conditions were never intended to be independently dispositive, but “were, instead, additional factors appropriately considered by the federal courts before invoking Younger.” Sprint, 134 S. Ct. at 593 (emphasis in original).
Gonzalez v. Waterfront Comm’n of N.Y. Harbor, 755 F.3d 176, 181
(3d Cir. 2014).19 Thus, Gonzalez ratifies the continuing validity
of Younger abstention in the context of an ongoing criminal
prosecution where there is no barrier to raising the issue in
the state court proceeding, suggesting also the continuing
validity of the Middlesex analysis.
No Third Circuit case of which this Court is aware has
directly addressed the issue of whether Younger abstention is
19 In Gonzalez, the Third Circuit found that abstention was appropriate in part because, having found that the proceeding at issue was quasi-criminal under Sprint, the third Middlesex factor was also satisfied:
In determining whether a federal plaintiff has an adequate opportunity to raise his constitutional claims during state-court judicial review of the administrative decision, we ask whether “state law clearly bars the interposition of the constitutional claims.” Moore v. Sims, 442 U.S. 415, 425-26 (1979) (emphasis added [in Gonzalez]). In making this determination, we consider whether state law raises procedural barriers to the presentation of the federal challenges. Gonzalez, 755 F.3d at 184.
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appropriate with regard to ancillary or collateral proceedings in a pending criminal case since Sprint was decided. Other federal courts, in cases both before and after Sprint, have ruled that abstention is inappropriate in cases challenging bail or other pretrial release conditions. See Hunt v. Roth, 648 F.2d 1148, 1154 (8th Cir. 1981) (rev’d on other grounds) (abstention inappropriate where declaratory judgment sought regarding nonbailable status of certain offenses did “not interfere with the state’s orderly criminal prosecution” of plaintiff, plaintiff’s claim that “bail has been unconstitutionally denied [wa]s no defense to the criminal charge[,]” and plaintiff had effectively no remedy in state court); Odonnell v. Harris Cty., Texas, 227 F. Supp. 3d 706, 734-35 (S.D. Tex. 2016) (“Resolving [the legality of the challenged pre-trial detention] does not affect the merits of subsequent criminal prosecutions. The inability to pay bail cannot be raised as a defense in a subsequent criminal prosecution. . . . Even if Younger applied to a case challenging pretrial detention, this case would fail Younger’s conditions for abstention [under Middlesex, 457 U.S. at 432 and subsequent caselaw.]”); Rodriguez v. Providence Cmty. Corr., Inc., 155 F. Supp. 3d 758, 765-66 (M.D. Tenn. 2015) (noting that the “Sixth Circuit has read Gerstein to require federal courts to ask ‘whether the issue raised is collateral to the principal state
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proceeding’ before invoking Younger abstention”) (quoting Parker v. Turner, 626 F.2d 1, 8 (6th Cir. 1980)).
Ultimately, the Court is not persuaded that Younger abstention is warranted in the instant case. As the Sprint Court stated: “When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution.” 134 S. Ct. at 588. Plaintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure. An injunction containing an order for such a procedure to take place “could not prejudice the conduct of the trial on the merits.” Gerstein, 420 U.S. at 108 n.9.
The Court believes that Gerstein’s explication of when Younger abstention is inappropriate is as applicable to the instant case as it was to the claims in Stewart. In that case, the petitioners’ claims were regarding a policy of the Philadelphia District Attorney’s Office re-initiating felony charges that had been dismissed by a judge for lack of a prima facie showing of probable cause, such policy alleged to have been in violation of the petitioners’ Fourth Amendment rights against unreasonable seizures. Stewart, 275 F.3d at 225-26. Just as the federal court addressing the challenged procedure in
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Stewart “would not interfere with the criminal prosecutions themselves” as the claims there “involved a challenge to pretrial restraint,” id. at 226 (internal quotations omitted), the Court here likewise finds that Gerstein is applicable and it is likely that abstention pursuant to Younger is not warranted.20 The matter of Younger abstention’s propriety, however, is not well-settled, even after Sprint, in light of Gonzalez and cases discussed above. While the relief sought would not restrain the state’s prosecution of Holland, it is nonetheless troubling that Holland continues to have an unused remedy to present these issues in an effort to challenge the conditions of release in his case, and further, that the Plaintiffs are asking this federal court to rearrange the state’s statutory (and to some extent, constitutional) considerations in the determination of conditions of release having broad application across all criminal cases, which invades important state interests concerning release and detention.
20 But see McWhite v. Cohen, No. 15-6702, 2015 WL 5996296, *3 (D.N.J. Oct. 14, 2015) (“Petitioner has the opportunity to raise his constitutional claims in pre-trial motions, and in a direct appeal and/or a post-conviction relief petition should the need arise. Petitioner therefore has ample opportunity to present his federal constitutional claims [including his excessive bail complaint] to the state courts. Accordingly, the Court must abstain from interfering with the ongoing state proceedings under Younger.”)
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3. Habeas vs. 1983 The parties have also addressed whether the claims of Holland are appropriately presented under 42 U.S.C. § 1983, rather than 28 U.S.C. § 2241. The most salient difference is that relief under § 2241 requires a plaintiff to have exhausted state remedies before seeking federal relief, while § 1983 has no such exhaustion requirement. Plaintiffs argue that § 1983 is the proper basis for this action because here, Holland does not seek “an injunction ordering his immediate or speedier release into the community.” (Pl. Rep. Br. at 7-8.) Defendants argue that inasmuch as the restrictions on Holland’s pre-trial release either constitute or are viewed by him as “a form of pretrial custody or confinement,” a petition for a writ of habeas corpus is the only avenue for him to seek relief. (Def. Opp. Br. at 2526.) The Court finds that § 1983 is an appropriate basis for this action. In Preiser v. Rodriguez, the Court found that a plaintiff could only seek a federal remedy via the writ of habeas corpus, and not § 1983, when that person “is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment.” 411 U.S. 475, 500 (1973); see also Wallace v. Fegan, 455 Fed. App’x 137, 140 (3d Cir. 2011) (plaintiff’s “seeming challenge to
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pretrial incarceration seeks a remedy available only in
habeas”).
While the Supreme Court has previously held that a
petitioner is sufficiently “in custody” for purposes of habeas
corpus even when released on his or her own recognizance,
Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-01
(1984), the availability of § 1983 as a vehicle to seek relief
for an alleged violation of a constitutional right depends,
primarily, on the relief sought.
As the Third Circuit has stated:
The Court has been careful to distinguish cases seeking release, which must be brought by writ of habeas corpus, from those challenging procedures, which may go forward under § 1983. Thus, in Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974), the Court held that although an action seeking restoration of good time credits could be brought only as a petition for habeas corpus, a litigant could sue for damages and injunction under § 1983 based on a claim that good time credits were lost without proper procedural protections. In Gerstein v. Pugh, 420 U.S. 103, 107 n.6 (1975), the Court noted that where the relief sought was a hearing, not release from confinement, the action need not be brought as a habeas corpus petition.”
Georgevich v. Strauss, 772 F.2d 1078, 1086 (3d Cir. 1985). The
Third Circuit, further discussing the posture of Gerstein,
stated:
It is also well-established that some kinds of procedural challenges in criminal cases can be asserted in a § 1983 action where release from custody is not the relief sought. Thus, in Gerstein . . . , the Court approved extensive declaratory and
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injunctive relief in a § 1983 class action challenging the constitutionality of state statutes and procedural rules which permitted pre-trial detention of arrestees without any probable-cause determination by a neutral and detached magistrate. . . . [In that case,] the constitutional validity of a method of pretrial procedure, rather than its application to any particular case, was the focus of the challenge. . . . [I]n any event, the validity of the criminal convictions (of those members of the class who were thereafter convicted), would not be affected by the unconstitutionality of the pretrial procedure in question.
Tedford v. Hepting, 990 F.2d 745, 748-49 (3d Cir. 1993).
The Supreme Court has recently stated that where a
petitioner does not seek an “injunction ordering . . . immediate
or speedier release into the community . . . and a favorable
judgment would not necessarily imply the invalidity of their
convictions or sentences,” he or she may “properly invoke[]
§ 1983.” Skinner v. Switzer, 562 U.S. 521, 533-34 (2011) (citing
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) and Heck v.
Humphrey, 512 U.S. 477, 487 (1994)) (internal quotations
omitted).
The Court finds that Holland does not seek an injunction
ordering his immediate or speedier release into the community,
but rather an injunction ordering a hearing that conforms to his
conception of his constitutional rights under the Fourth,
Eighth, and Fourteenth Amendments. Nor would a favorable
judgment necessarily (or in any way, in fact) imply the
invalidity of any subsequent conviction or sentence to which
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Holland may one day be subjected. For this reason, the Court finds that Plaintiffs have properly invoked § 1983 and need not proceed exclusively through a petition for a writ of habeas corpus, and declines to dismiss their claims on that ground.
4. Summary of Preliminary Issues At this stage, as discussed above, Holland has standing to raise these constitutional challenges while Lexington lacks first-party standing and it is unlikely Lexington has thirdparty standing. Similarly, it appears Younger abstention would not be warranted as to either Plaintiff, although the issue presents a closer call in Holland’s case because his criminal case remains pending and he has an available state court forum to raise challenges to his conditions of release and the CJRA, but the relief he seeks in federal court would not block or call into question the state’s prosecution. Finally, the Court does not find that it should exercise habeas corpus jurisdiction under 28 U.S.C. § 2241 rather than federal civil rights jurisdiction under 28 U.S.C. §§ 1343 & 1983. Doubt as to Lexington’s standing suggests further caution in considering Lexington’s prospects of success on the merits of its claims. B. Likelihood of Success on the Merits With respect to the first factor in obtaining a preliminary injunction, Plaintiffs must demonstrate a likelihood of success
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on the merits of their Eighth Amendment, Fourteenth Amendment,
and Fourth Amendment claims. The Court addresses each in turn.21
1. Eighth Amendment Plaintiffs first ask the Court to declare that the CJRA
violates the Eighth Amendment rights of Holland and other
presumptively innocent criminal defendants. Plaintiffs argue
that the CJRA’s hierarchical structure violates the Eighth
Amendment because it essentially “single[s] out” monetary bail
“as a disfavored option of last resort.” (Pl. Rep. Br. at 1.) As
the CJRA currently stands, Plaintiffs argue, defendants in New
Jersey are left without the “liberty-preserving option” of
paying monetary bail, since a judge cannot advance to the
monetary bail step without first finding that the enumerated
non-monetary conditions would not “reasonably assure the
eligible defendant’s appearance in court when required.”
N.J.S.A. 2A:162-17(c)(1). To remedy this alleged constitutional
21 Plaintiffs attack the CJRA in the form of both a facial and an as-applied challenge. A party asserting a facial challenge “must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). That is, Holland would have to show that the “[statute] is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (citing Salerno, 481 U.S. at 745). This is the “most difficult challenge to mount successfully.” Salerno, 481 U.S. at 745. On the other hand, “[a]n as-applied attack ... does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right.” United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010).
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defect, Plaintiffs ask the Court to elevate the third level (“release on monetary bail – but only to reasonably assure the defendant’s appearance in court,” N.J.S.A. 2A:162-16(b)(2)(c), 17(c), up to the second level (release on non-monetary conditions that are the least restrictive conditions necessary, N.J.S.A. 2A:162-16(b)(2)(c), - 17(b)), so that a judge can consider both monetary and non-monetary options at the same time. In simple terms, Holland believes he is entitled under the Eighth Amendment to have monetary bail be considered as part of the mix of the judge’s pretrial release decision.
In relevant part, the Eighth Amendment of the U.S. Constitution provides that “[e]xcessive bail shall not be required.” U.S. Const. amend. VIII [hereinafter, “Excessive Bail Clause”]. The Eighth Amendment’s prohibition against excessive bail is applicable to the states through the due process clause of the Fourteenth Amendment. Kennedy v. Louisiana, 554 U.S. 407, 419 (2008); Sistrunk v. Lyons, 646 F.2d 64, 70 (3d Cir. 1981).
Plaintiffs argue that the Eighth Amendment’s prohibition of “[e]xcessive bail” presupposes a right to bail as an alternative to pretrial deprivation of liberty for bailable offenses, and the CJRA impermissibly forecloses monetary bail as an option. (Pl. Br. at 21.) In other words, if the Bail Clause of the Eighth Amendment is to have any meaning, it must create a constitutional right to bail. Defendants respond that Plaintiffs
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improperly “transmogrify a prohibition on imposing excessive bail into a generalized right to monetary bail as an alternative to pre-trial deprivation of liberty for bailable offenses.” (Def. Opp. Br. at 28) (internal references omitted).
At the outset, the Court finds that Plaintiffs’ argument that the Eighth Amendment implies and safeguards the right to monetary bail is unlikely to succeed on the merits.
The history of the Excessive Bail Clause demonstrates Plaintiffs are unlikely to succeed on the merits of their Eighth Amendment claim. The Excessive Bail Clause was derived from the English Bill of Rights of 1688 and the 39th chapter of the Magna Carta, which required that “no freeman shall be arrested, or detained in prison . . . unless . . . by the law of the land.” Cobb v. Aytch, 643 F.2d 946, 959 n.7 (3d Cir. 1981). When Congress considered adoption of the Bill of Rights in 1789, the Excessive Bail Clause “was a noncontroversial provision that provoked very little discussion.” United States v. Edwards, 430 A.2d 1321, 1328 (D.C. 1980)(en banc), cert. denied, 455 U.S. 1022 (1982). As the Edwards Court found, “neither the historical evidence nor contemporary fundamental values implicit in the criminal justice system requires recognition of the right to bail as a ‘basic human right,’ which must then be construed to be of constitutional dimensions.” Id. at 1331 (citations omitted). However, “[t]he specific intent of the Framers simply
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cannot be divined from the historical evidence of the pre-1789 period,” as “the only reasonable conclusion that can be drawn . . . is that the Framers did not consider the parameters of a right to bail at all when they passed the [E]ighth [A]mendment.” Donald B. Verrilli, Jr., Note, The Eighth Amendment and the Right to Bail: Historical Perspectives, 82 Colum. L. Rev. 328, 350 (1982). Indeed, many states, including New Jersey, added an affirmative right to bail clause to their constitutions after 1789. See, e.g., N.J. Const. of 1844, art. I, ¶ 10.
Plaintiffs provide a robust history outlining the importance of a criminal defendant’s right to bail. Notably, they fail to explain why the Court should find an implied right to monetary bail in the Eighth Amendment, as opposed to a general right to be free from unwarranted custody pending trial. In fact, bail has traditionally been defined in a multitude of ways, including:
(1) a security such as cash, a bond, or property; esp., security required by a court for the release of a criminal defendant who must appear in court at a future time;
(2) the process by which a person is released from custody either on the undertaking of a surety or on his or her own recognizance;
(3) release of a criminal defendant on security for a future court appearance; esp., the delivery of a person in custody to a surety; and
(4) one or more sureties for a criminal defendant.
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Bail, Black’s Law Dictionary (9th ed. 2009) (emphasis added). While some of these definitions involve money, others (notably the second definition) do not.
The Third Circuit has addressed the availability of bail in the context of the Eighth Amendment, but all before the landmark case of United States v. Salerno, 481 U.S. 739 (1987), and in slightly different contexts than the present case.22 To the extent Plaintiffs rely upon these cases for the proposition that there is an implied right to money bail under the Eighth Amendment, the Court finds that Salerno is the best indication of how the Supreme Court currently views the issue of bail. In Salerno, the Supreme Court held that the Eighth Amendment “says nothing about whether bail shall be available at all.” Salerno, 481 U.S. at 752. And the Third Circuit has not reached the issue since. Accordingly, the Court declines plaintiff’s invitation to
22 See e.g., United States v. Perry, 788 F.2d 100, 111 (3d. Cir. 1986) (finding that, in the civil, preventative-detention context, “[i]t seems more reasonable . . . to consider the bail clause to be applicable solely to the problem it most clearly addresses: conditions of release or detention designed to assure a criminal defendant’s appearance at trial and availability for sentence.”) Sistrunk v. Lyons, 646 F.2d 64, 65 (3d Cir. 1981) (recognizing in a capital murder case that, while “bail constitutes a fundament of liberty underpinning our criminal proceedings” and “has been regarded as elemental to the American system of jurisprudence[,] . . . the Constitution does not provide a right to bail per se to which the states must conform, it only sets a ceiling on its employment”).
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find that a right to money bail is implied within the Eighth Amendment.
Plaintiffs further argue that the CJRA violates the Eighth Amendment because New Jersey cannot impose “severe” deprivations of liberty, like home detention and electronic monitoring, without offering the possibility of money bail. (Pl. Rep. Br. at 20.)23 In other words, they argue, the state cannot put monetary bail “behind an emergency glass,” unable to be employed until all other non-monetary options are exhausted. Defendants respond that conditions like home detention and electronic monitoring are not “severe,” since such conditions are less restrictive than jail and are “commonly imposed in the federal bail system.” (Def. Opp. Br. at 32.)
Salerno articulates the constitutional principles governing the use of preventive detention in the pretrial context, and provides support for the constitutionality of the CJRA. 481 U.S. at 739. Salerno concerned a facial attack on the federal Bail Reform Act of 1984, which requires courts to detain arrestees charged with certain serious felonies prior to trial, if the
23 Plaintiffs conceded at oral argument that they would have a “weaker argument” if the issue was a right to a commercial bond versus the availability of a bond generally. [Docket Item 42.] Thus, it appears that Plaintiffs do not quibble with the way that money bail would be provided, just that some monetary condition will be in the mix and be part of a state court judge’s analysis and determination of appropriate conditions of pretrial release.
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Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions “will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e). In upholding the constitutionality of the Bail Reform Act, the Salerno Court emphasized that preventative detention that is “regulatory, not penal” does not constitute “impermissible punishment before trial.” Id. at 746-47. The test for determining whether a preventive detention policy is regulatory or punitive depends, first, on whether there was an express legislative intent to punish; if not, the inquiry turns to whether there is a rational connection between the policy and a non-punitive justification, and then, whether the policy is proportional to that justification. Id. at 747. The Court found that the Bail Reform Act was more regulatory in nature, as it “carefully limits the circumstances under which detention may be sought to the most serious of crimes.” Id. at 739-40. The Court then decided that the restrictions the statute imposed on pretrial liberty could be adequately justified by the compelling government interest in preventing danger to the community. Id. at 747.
Notably, the Court “reject[ed] the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly-compelling interests through
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regulation of pretrial release.” Id. at 753. The Court explained that “[t]here is no doubt that preventing danger to the community is a legitimate regulatory goal.” Id. at 747. Additionally, “[n]othing in the text of the Bail Clause limits permissible considerations solely to questions of flight.” Id. at 754. Importantly, the Supreme Court in Salerno thus recognized that the legislature can identify interests, such as assuring the safety of the community and persons, including victims or witnesses, which are considered in determining conditions of release aside from the setting a monetary bail.
Plaintiffs argue that “nothing in Salerno provides any support for the CJRA’s sweeping provisions authorizing severe liberty restrictions of non-dangerous defendants – i.e., anyone charged with a covered crime whose risk of flight can be negated through house arrest and an ankle monitor.” (Pl. Rep. Br. at 14.) But Plaintiffs have not cited a single post-Salerno bail case mandating monetary bail, let alone one finding that nonmonetary conditions cannot be utilized by a judge when considering the pretrial release of a criminal defendant. This is not surprising; if absolute pretrial detention is constitutionally permissible to address risk of flight and safety of persons and community, then so too are lesser conditions imposing restrictions on pre-trial liberty.
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Further, the Court has serious doubts that Holland is the appropriate plaintiff to advance such an argument, as he appears to be a far cry from the hypothetical non-violent defendant to whom Plaintiffs allude. Holland was arrested after a serious bloody assault in which he allegedly inflicted multiple facial fractures upon the victim, then fled the scene before police arrived, and was charged with second-degree aggravated assault. As a result of this violent criminal charge and a prior simple assault conviction, the DMF generated by the Pretrial Services Program recommended that Holland be detained pending trial. Only after negotiations between the prosecutor and Holland’s courtappointed attorney was the judge willing to release Holland subject to house arrest, electronic monitoring, and weekly reporting. It therefore appears that flight risk was not a primary consideration for Holland’s conditions of pretrial release. Rather, Holland was considered to be a potentiallydangerous defendant from whom the community deserved some degree of protection by certain non-monetary conditions of release or, indeed, by his detention.
More importantly, Holland waived his claims to have money bail be considered as one possible condition for his pretrial release when he agreed to accept PML Level 3+ monitoring in exchange for the prosecution dropping its request for detention. Holland argues that he and his attorney made this agreement
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before his pretrial detention hearing because he had no other choice given the unconstitutional system. This rings hollow. Holland had a full opportunity to dispute the PSA’s recommendation of pretrial detention, including the NVCA flag he received. Indeed, the Pretrial Services Program’s recommendation is one of several factors a court may consider at the pretrial detention hearing. See N.J.S.A. 2A:162-20. Holland and his attorney had the opportunity to argue against the prosecutor’s motion, to point out why detention or home confinement with electronic monitoring was too restrictive, and why lesser conditions would suffice. Holland did none of that in the Superior Court.
A judge has wide discretion under the CJRA framework to impose the least-restrictive, non-monetary condition warranted under the circumstances. While Holland agreed to electronic monitoring and home detention in this instance, if he had proceeded with his pretrial detention hearing, he may well have received non-monetary conditions that were less stringent than those he agreed to. This could have included phone reporting at PML 1, or reporting once a month in person or telephone and some monitored conditions, such as curfew, at PML 2. In fact, given Holland’s initial PSA score of 2/6 for failure to appear and 2/6 for new criminal activity, it is possible that Holland could have been released on his own recognizance with lesser
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restrictions if he had been able to successfully challenge the NVCA flag he received in his PSA.
Holland had a right to be released from jail under conditions that were not excessive. Nothing in the record suggests that Holland waived his right to a pretrial detention hearing because he was proffering a money bail as an alternative to home confinement or electronic monitoring; instead, it appears he waived it because he faced the very real possibility of going to jail as a pretrial detainee otherwise, given the state’s allegations of dangerousness. For all these reasons, the Court finds that Plaintiffs are unlikely to succeed on the merits of their Eighth Amendment claim.
2. Fourteenth Amendment In the alternative, Plaintiffs ask the Court to declare that the CJRA violates the procedural and substantive due process rights of Holland and other presumptively innocent criminal defendants by denying these individuals the option of monetary bail as a means to assure their appearance at trial before subjecting them to “severe” restrictions of their pretrial liberty.
a. Procedural Due Process Holland argues that his procedural due process rights have been violated because home detention and the wearing of an
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electronic bracelet are liberty-restricting conditions. (Pl. Br. at 27.)
Pretrial detention implicates a liberty interest entitled to due process protections. United States v. Dekker, 757 F.2d 1390, 1397 (3d Cir. 1985). Procedural due process requires the balancing of three familiar factors:
(1) [T]he private interest that will be affected by the official action;
(2) [T]he risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and
(3) [T]he government’s interest, including the function involved and the fiscal administrative burdens that the additional or substantive procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 325 (1976). For any preventive detention decision, the procedural due
process inquiry turns on whether a criminal defendant enjoys “procedures by which a judicial officer evaluates the likelihood of future dangerousness [that] are specifically designed to further the accuracy of that determination.” Salerno, 481 U.S. at 751. Under the CJRA, a criminal defendant must therefore have some opportunity to contest potentially-inaccurate or substantively-unfair PSA or DMF procedures.
The CJRA specifically states that when, as here, the prosecutor seeks pretrial detention, the defendant is entitled
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to a pretrial detention hearing. N.J.S.A. 2A:162-18. At this hearing, the defendant has the right:
to be represented by counsel, and, if financially unable to obtain adequate representation, to have counsel appointed. The eligible defendant shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. N.J.S.A. 2A:162-19(e)(1). Further, if the court orders a defendant to be held in custody pending trial, the defendant may appeal that decision and have it heard on an expedited basis. N.J.S.A. 2A:162-18(c). A criminal defendant may also file a motion to reconsider his conditions of release at any time, based on “a material change in circumstances.” N.J.S.A. 3:262(c)(2). Here, Holland actually had a pretrial detention hearing on April 11, 2017 before the Hon. Kathleen Delaney, J.S.C., with the opportunity to afford himself of all the protections outlined in N.J.S.A. 2A:162-19(e)(1). (Feldman Decl. ¶ 14.) Instead of going forward with the pretrial detention hearing, however, Holland’s counsel informed Judge Delaney that the parties had agreed to Level 3+ monitoring. (Id. at ¶ 12.) And Holland consented, on the record, to these conditions. (Id. at ¶ 17.) Moreover, Holland can still file a motion in state court under N.J.S.A. 3:26-2(c)(2), arguing that changed circumstances warrant less-restrictive conditions of his pretrial release.
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Indeed, “changed circumstances” may well include the passage of time itself, rendering his allegedly violent behavior less recent, coupled with good behavior while under pretrial supervision, if such be the case.
On this record, the Court finds it is likely that Holland voluntarily and knowingly waived his right to a pretrial detention hearing when he agreed to be released subject to the previously-described, non-monetary conditions in exchange for his release from jail. One who waives the judicial process may not claim due process is denied. See Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)(“In order to state a claim for failure to provide due process, a plaintiff must have taken advantage of the processes that are available to him or her.”). Further, even if one assumes for the sake of argument that Holland and his counsel did not waive the detention hearing rights, the process of appellate review in the Superior Court’s Appellate Division would be open to him, of which he has also not availed himself. Thus, the Court finds that Plaintiffs are unlikely to succeed on the merits of their procedural due process claim.
b. Substantive Due Process Plaintiffs also raise a substantive due process challenge to the CJRA. “The substantive component of the Due Process Clause limits what government may do regardless of the fairness of procedures that it employs,” Boyanowski v. Capital Area
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Intermediate Unit, 215 F.3d 396, 399 (3d Cir. 2000), in order to “guarantee protect[ion] against government power arbitrarily and oppressively exercised,” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citing Daniels v. Williams, 474 U.S. 327, 331, (1986)). Substantive due process “prevents the government from engaging in conduct that ‘shocks the conscience’ . . . or interferes with rights ‘implicit in the concept of ordered liberty.’” Salerno, 481 U.S. at 746. “[T]here is a substantive liberty interest in freedom from confinement.” United States v. Perry, 788 F.2d 100, 112 (3d Cir. 1986). “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Salerno, 481 U.S. at 755.
At the outset, the Court declines the State Defendants’ invitation to deny Plaintiffs’ substantive due process claim where a particular amendment provides an explicit textual source of constitutional protection. (Def. Opp. Br. at 38.) At this preliminary stage, the Court has not identified protections under the Eighth Amendment, see Section IV.B.1, supra, or the Fourth Amendment, see Section IV.B.3, infra, that protect the interest Plaintiffs seek to identify. The Court thus proceeds to the merits of Plaintiffs’ claim of denial of substantive due process.
Holland argues that his substantive due process rights have been violated because the CJRA prevents him from having the
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option of posting monetary bail sufficient to ensure his future appearance before being subjected to severe deprivations of pretrial liberty. (Pl. Br. at 28.) As a result, Plaintiffs argue, the CJRA “replaces the liberty-preserving option of bail with liberty-restricting conditions of release.” (Id. at 32.) The State Defendants respond that having the option of monetary bail is not a “fundamental” right and need not be considered before non-monetary conditions of pretrial release are implemented. (Def. Opp. Br. at 41.)
Plaintiffs claim that the right to have “bail” (i.e., money bail) be considered as an option is “fundamental to [our] scheme of ordered liberty.” (Pl. Rep. Br. at 29) (quoting McDonald v. City of Chicago, Ill., 561 U.S. 742, 767 2010).) To that end, Plaintiffs repeat the uncontroversial position that “bail is the mechanism employed for centuries by our legal system to preserve the ‘axiomatic and elementary’ presumption that a person accused but unconvicted of a crime is innocent until proven guilty.” (Pl. Br. at 29-30) (quoting Coffin, 156 U.S. at 453).
The Court finds Plaintiffs’ argument that the option to money bail is a “fundamental” right to be unpersuasive. First, McDonald is a Second Amendment case which does not directly address the issue of bail, except to the extent that the Court recognized the Eighth Amendment’s protection against excessive bail had previously been incorporated vis-à-vis the states in
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Schilb v. Kuebel, 404 U.S. 357 (1971). McDonald, 561 U.S. at 764 n.12. Second, as discussed in Section IV.B.1, supra, Plaintiffs’ argument fails to distinguish between money bail and nonmonetary conditions of bail, especially in light of Salerno. Again, Plaintiffs have not cited a single post-Salerno bail cases, let alone one describing monetary bail as a “fundamental” right. Accordingly, the Court will again look to Salerno for guidance.
In Salerno, the Court discussed due process considerations within the context of setting a criminal defendant’s bail conditions. The Salerno Court upheld the constitutionality of the statute's provision permitting “pretrial detention on the ground that the arrestee is likely to commit future crimes.” 481 U.S. at 744, 750. The Court noted that the Act “operates only on individuals who have been arrested for . . . extremely serious offenses.” Id. at 749. The provision withstood constitutional scrutiny precisely because it included procedural protections — including an individualized finding of risk to the public from failure to impose a specific requirement.
Holland argues that the CJRA system unfairly predicts his future dangerousness, essentially eliminating the possibility of money bail for his release. That the CJRA process resulted in Holland’s release from pretrial detention on conditions of home confinement (with permission to maintain full-time employment),
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electronic monitoring (financed by the state due to Holland’s indigency), and occasional reporting to a pretrial services officer does not shock the Court’s conscience, nor does the absence of a monetary bail option in lieu of, or in addition to, restrictions that are aimed at deterring dangerousness. Moreover, Holland failed to challenge his PSA scores or DMF recommendation when he had the opportunity to do so. Either way, Plaintiffs present no grounds for finding that a criminal defendant’s option to obtain monetary bail is a fundamental right or implicit in the concept of ordered liberty. The Court therefore finds that Plaintiffs are unlikely to succeed on the merits of their substantive due process claim.
3. Fourth Amendment Finally, Plaintiffs ask the Court to declare that the CJRA violates the Fourth Amendment rights of Holland and other presumptively innocent criminal defendants to be free from unreasonable searches and seizures. Specifically, Holland argues that the electronic location monitoring is a “severe” intrusion of his privacy and constitutes an unreasonable search under the Fourth Amendment, while home detention constitutes an unreasonable seizure. (Pl. Rep. Br. at 34.) To that end, Plaintiffs argue that electronic monitoring and home detention are not “needed” to promote the government’s interest in securing Holland’s appearance for trial when they could have
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easily offered money bail. (Id. at 35.) The State Defendants reply that the balance of reasonableness “undoubtedly favors the legitimate governmental needs of the State of New Jersey” because, here, Holland was charged with a serious crime, seconddegree aggravated assault, and he knowingly agreed to electronic monitoring and home detention as a condition to his pretrial release. (Def. Opp. Br. at 43-44.)
The Fourth Amendment mandates that [t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. Accordingly, the Fourth Amendment only prohibits “unreasonable” searches and seizures. United States v. Katzin, 769 F.3d 163, 169 (3d Cir. 2014). “Reasonableness” is analyzed by a “totality of the circumstances” test, “assessing on the one hand, the degree to which [the search or seizure] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006) (citations and internal quotation marks omitted). The Court agrees that, under normal circumstances, 24-hour electronic monitoring would likely constitute an intrusion upon an individual’s reasonable expectation to privacy. However, as
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the Supreme Court has explained, “[o]nce an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, his or her expectations of privacy . . . are reduced.” Maryland v. King, 133 S. Ct. 1958, 1978 (2013). Moreover, the state’s interest in ensuring a potentially-dangerous defendant’s appearance at trial is strong. Salerno, 481 U.S. at 749 (“The government’s interest in preventing crime by arrestees is both legitimate and compelling.”). Thus, in the pretrial-release context, electronic monitoring and home arrest may be well “reasonable.”
The Fourth Amendment generally interposes the determination of a judicial officer in determining the reasonableness of significant intrusions into the liberty or property of an individual. Thus, absent exigent circumstances or other limited exceptions, a judicial officer must determine whether probable cause exists to search a home under a search warrant or to arrest a suspect under an arrest warrant. Likewise, cases too numerous to fully list have held that the judicial officer’s determination of reasonableness under all the circumstances is deemed to protect the right to be free of unreasonable searches and seizures that the Fourth Amendment protects. See, e.g., Michigan v. Summers, 452 U.S. 692, 704-05 (1981); Johnson v. United States, 333 U.S. 10, 15 (1948).
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Likewise, where conditions of pretrial release in a criminal case restrict freedom of movement and can be regarded to that extent as a seizure of the individual, the safeguard of a judicial determination upon the record protects against unreasonable seizures by examining the totality of the relevant circumstances. The careful process of gathering reliable information and risk assessments, such as New Jersey’s Public Safety Assessment, appears to provide a valuable tool for the judge in determining the issue of detention and release, including the stringency of conditions of release. The use of such a tool further supports the likelihood of a reasonable level of detention or release upon a spectrum of intrusion on freedom while awaiting trial.
Again, the Court cannot overlook the fact that Holland waived the opportunity to have a pretrial detention hearing with counsel, witnesses, and cross-examination. Instead, he agreed to the electronic monitoring and home detention conditions. Holland might have avoided these “severe” restrictions of his liberty had he proceeded with his pretrial detention hearing and argued for the removal of the NVCA flag he was assigned. He also could have argued for other non-monetary conditions, as enumerated in the CJRA, which are less severe than home detention or electronic monitoring. See N.J.S.A. 2A:162-17. But, faced with the risk of pretrial detention, Holland chose instead to be
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released under partial home confinement and electronic location monitoring. Within this context, the Court does not find the pretrial conditions imposed on Holland to be unreasonable. Cf. Belleau v. Wall, 811 F.3d 929, 932 (7th Cir. 2016) (Posner, J.) (“Having to wear a GPS anklet monitor is less restrictive, and less invasive of privacy, than being in jail or prison.”)24 As a result, the Court finds that Holland’s Fourth Amendment claim is unlikely to succeed on the merits.
4. Summary of Likelihood of Success Prong In summary, neither Holland nor Lexington has shown likelihood of success on the merits of their Eighth Amendment, Fourteenth Amendment, and Fourth Amendment claims. Neither plaintiff has made a showing of a reasonable probability of eventual success on any claim examined above. The Court now turns to examine the remaining factors for preliminary injunctive relief. C. Probability of Irreparable Harm Plaintiffs have the burden of demonstrating “potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm.” Instant Air Freight,
24 As State Defendants correctly argue, if Holland had not consented to non-monetary conditions, the judge could have ordered pretrial detention given the violent nature of the crime charged. (Def. Opp. Br. at 44.)
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882 F.2d at 801. This requires demonstration of “actual or imminent harm which cannot otherwise be compensated by money damages.” Frank’s GMC, 847 F.2d at 103.
Plaintiffs argue that the irreparable harm to Holland and Lexington lies in the continuing constitutional infringement resulting in restrictions of liberty of Holland (and of Lexington’s clients). (Pl. Br. at 35-36.) Plaintiffs claim that Holland is harmed by being “subjected to severe restrictions of liberty without being offered the constitutionally required alternative of monetary bail.” (Id. at 36.) Lexington, on the other hand, appears to make no argument for its own irreparable injury. (See id. at 35-37, Pl. Reply Br. at 19-20.) To the extent Lexington suggests it is suffering economic harm from loss of opportunities to underwrite bail bonds, such harm may be tangible and ongoing but there is no showing that it is probably caused by a violation of Lexington’s rights, since there is no right to engage in bail bonding implied or expressed in the Constitution, as discussed above.
The Court acknowledges that where probable success on the merits of a constitutional claim is shown, and such violation will continue unless enjoined, the continuing constitutional violation can constitute irreparable harm. See, e.g., Stilp v. Contino, 613 F.3d 405, 409 (3d Cir. 2010) (noting that First Amendment violation satisfies irreparable injury requirement);
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Forchion v. Intensive Supervised Parole, 240 F. Supp. 2d 302, 310 (D.N.J. 2003) (addressing continued incarceration). In the present case, lacking a showing of likely success on the merits of the claimed constitutional violations, the Court finds scant likelihood of irreparable harm if an injunction is denied.
Holland’s harm is also not irreparable because he has a possible remedy available to him ameliorating the so-called “severe” conditions of partial home confinement with electronic monitoring; namely, as discussed above, he can seek a modification of his restrictions, and appeal any denial to the Appellate Division and New Jersey Supreme Court. A federal court injunction is not a necessary remedy where the prospect of a state remedy is available.
For these reasons, the Court finds Plaintiffs have failed to demonstrate likelihood of irreparable harm if Defendants are not enjoined.
D. Balance of Harms Granting the preliminary injunction would pose a high risk of harm to other interested persons. See Reilly, 858 F.3d at 176. An injunction mandating consideration of monetary bail may reinstall the system of financial requirements that, prior to the CJRA and the new procedures for pretrial release, resulted in the jail detention of persons unable to meet even modest financial conditions, as discussed above. Rolling back the
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measurable gains brought about under the CJRA since January 2017 by reinstating the primacy of money bail may also harm the general community by displacing pretrial restrictions meant to protect the community and individual victims and witnesses from risk of harm. These concerns of protecting against risk of danger to the community are not generally mitigated with the posting of money bail.
Against such possible harms to other defendants in the criminal justice system who are unable to afford money bail and the risk of harms to the community and specific persons, the harm to Holland if the preliminary injunctive relief is denied is minimal. During this interval before his trial, he will be under the pretrial regime of electronic location monitoring and partial home confinement with exceptions for employment. Moreover, the opportunity he seeks to rid himself of these restrictions through injunctive relief would itself come at a cost of posting cash or paying a bail bond premium, the latter which he would not get back even if he faithfully performs his pretrial obligations. Although the amount of monetary bail that might be set is unknown, he currently is not being charged a bail bond premium (customarily 10% of the monetary bail amount). That cost of monetary bail to Holland and other persons accused of crimes and awaiting trial would thus be a negative
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consequence to Holland and others if this injunction were granted.25
Thus, the balance of harms tips decidedly against granting the preliminary injunction.
E. Considerations of the Public Interest The three branches of New Jersey’s government — the Executive, Legislative, and Judicial — enabled by a strong public vote in the 2014 referendum have put considerable effort into reforming a monetary-based bail system that resulted in excessive detentions for mere financial inability and failed to assess risks of danger. They have collaborated, as described in Section II.A, supra, to put into place a framework for determining conditions of pretrial release that considers not only risk of flight but also risk of harm to the community and to specific persons, as well as risk of obstruction of justice. There is an undeniably strong public interest in maintaining such a reform, provided that it is constitutional. On the other hand, the shortcomings of a system that elevated monetary bail as the principal (or only) condition of pretrial release were well-documented in the VanNostrand Report and Report of the Joint Committee on Criminal Justice, discussed in Section II.A,
25 It follows that the non-refundable cost of a bail bond to Holland would be a financial gain to a bonding surety like Lexington, placing the two plaintiffs in some degree of conflict.
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supra. This accomplishment, moving from “a largely ‘resourcebased’ system of pretrial release to a ‘risk-based’ system of pretrial release,” Report of the Joint Committee on Criminal Justice at 8, should not be set aside absent a clear demonstration of its unconstitutionality.
The strength of the public interest, expressed in the state’s reform efforts pursued between 2012 and 2017, is another weighty consideration why the preliminary injunctive relief should be denied.
F. Summary of Preliminary Injunction Factors This Court, in accordance with Reilly, Issa, and other recent Third Circuit precedent discussed in Part III above, must determine whether the movants have shown a reasonable probability of eventual success in the litigation and that they will likely be irreparably injured; those two prerequisites are required showings, in addition to which the court should take into account, when relevant, the possibility of harm to other interested persons from the grant or denial of the injunction, and the public interest served by grant or denial of the injunction. In the present matter, Plaintiffs have not made a substantial showing of possibility of success nor of irreparable harm stemming from unconstitutional conduct under the CJRA, either on the face of the statute or as applied. Additionally,
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the balance of risk of harm to others if the injunction is granted substantially outweighs the harms to Plaintiffs if the injunction is denied. Moreover, the public interest in the success of the risk-based release system exceeds the private interests of Holland and Lexington National if the present situation continues as the litigation unfolds.
Finally, if these considerations were a close call — which the Court does not find them to be — then the balance would even further tip in favor of denying the injunction because of doubts about Lexington’s standing and the arguments favoring Younger abstention, to be considered further by the Court in upcoming dispositive motion practice.
For all these reasons, Plaintiffs’ motion for preliminary injunctive relief will be denied. The accompanying Order will be entered.

September 21, 2017 Date

s/ Jerome B. Simandle JEROME B. SIMANDLE U.S. District Judge

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 Case: 17-3104 Document: 003112976048 Page: 1 Date Filed: 07/09/2018
PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
No. 17-3104 ________________
BRITTAN HOLLAND, individually and on behalf of all others similarly situated; LEXINGTON NATIONAL
INSURANCE CORPORATION, Appellants
v.
KELLY ROSEN, Pretrial Services Team Leader; MARY COLALILLO, Camden County Prosecutor;
CHRISTOPHER S. PORRINO, Attorney General of New Jersey
________________
Appeal from the United States District Court for the District of New Jersey
(D.C. Civil Action No. 1-17-cv-04317) District Judge: Honorable Jerome B. Simandle
________________
Argued February 21, 2018
Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges

Case: 17-3104 Document: 003112976048 Page: 2 Date Filed: 07/09/2018

(Opinion filed: July 9, 2018)

Paul D. Clement, Esquire Robert M. Bernstein, Esquire Edmund G. LaCour, Jr., Esquire Andrew C. Lawrence, Esquire Michael F. Williams, Esquire Kirkland & Ellis 655 15th Street, N.W. Washington, DC 20005

(Argued)

Justin T. Quinn, Esquire Robinson Miller One Newark Center, 19th Floor Newark, NJ 07102

Counsel for Appellants

Christopher S. Porrino

Attorney General of New Jersey

Stuart M. Feinblatt, Esquire

(Argued)

Christopher J. Riggs, Esquire

Office of Attorney General of New Jersey

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellees

Alexander R. Shalom, Esquire Tess Borden, Esquire Edward Barocas, Esquire Jeanne LoCicero, Esquire

(Argued)

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American Civil Liberties Union of New Jersey Foundation 89 Market Street P.O. Box 32159 Newark, NJ 07102
Alan E. Schoenfeld, Esquire Ryan M. Chabot, Esquire WilmerHale 7 World Trade Center 250 Greenwich Street New York, NY 10007
Seth P. Waxman, Esquire David M. Lehn, Esquire Tiffany R. Wright, Esquire WilmerHale 1875 Pennsylvania Avenue, N.W. Washington, DC 20006
Counsel for Amici Appellees
________________
OPINION OF THE COURT ________________
AMBRO, Circuit Judge New Jersey’s system of pretrial release has long relied
on monetary bail to ensure the presence of an accused person at trial. State v. Robinson, 160 A.3d 1, 5 (N.J. 2017). But in 2017, following an amendment to its Constitution, the New Jersey Criminal Justice Reform Act took effect. It replaced New Jersey’s former monetary bail system with a new
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framework that prioritizes the use of non-monetary conditions of release over monetary bail to secure a criminal defendant’s pretrial liberty.
Brittan Holland and Lexington National Insurance Corporation challenge this feature of the Reform Act as a violation of the Eighth Amendment, the Due Process Clause of the Fourteenth Amendment, and the Fourth Amendment of the United States Constitution. They seek a preliminary injunction enjoining Kelly Rosen, the Team Leader for Pretrial Services in the Criminal Division of the Superior Court of New Jersey, Mary E. Colalillo, the Camden County Prosecutor, and Christopher S. Porrino, the Attorney General of New Jersey, and their agents (for convenience we refer to the named officials and their agents collectively as the “State”), “from taking any actions to enforce statutory provisions [of the Reform Act] . . . that allow imposition of severe restrictions on the pre-trial liberty of presumptively innocent criminal defendants without offering the option of monetary bail.” Proposed Order of Plaintiffs Granting Motion for a Temporary Restraining Order and a Preliminary Injunction at 2, Holland v. Rosen, 277 F. Supp. 3d 707 (2017) (No. 17–4317).
After considering the standing of Holland and Lexington to bring suit, we conclude, as did the District Court (per Judge Simandle), that only the former may make the challenge here. On the merits, the question key to Holland’s contentions is whether there is a federal constitutional right to deposit money or obtain a corporate surety bond to ensure a criminal defendant’s future appearance in court as an equal alternative to non-monetary conditions of pretrial release. Our answer is no. Thus we affirm the District Court’s comprehensive and well-reasoned ruling.
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I. Background
A. New Jersey Pretrial Release and Detention Prior to the Criminal Justice Reform Act
Prior to the Reform Act, New Jersey’s system of pretrial release relied heavily on the use of monetary bail, requiring defendants to post either cash or arrange with a third party a bond for their release. Robinson, 160 A.3d at 5; N.J. Att’y Gen. Law Enf’t Dir. 2016–6, at 9 (2016) (“AG Dir. 2016–6”); Chief Justice Stuart Rabner et al., Report of the Joint Committee on Criminal Justice 26 (2014) (“JCCJ Report”). Some defendants were released on personal recognizance (that is, undertaking a personal obligation to appear) or unsecured appearance bond (making a personal promise to pay, and sometimes obtaining a co-signor’s promise to pay, a sum of money in the event of flight). See State v. Rice, 350 A.2d 95, 99 (N.J. Super. Ct. Law Div. 1975). For most, however, release on bail required the security of cash deposited with the court equal to the full amount of bail set, ten-percent cash bail, corporate surety bond, or property bond. JCCJ Report at 21–22. There was a presumption in favor of full cash bail for certain bailrestricted offenses. For most other offenses defendants were presumed to have a ten-percent cash bail option, id. at 22, which allowed them to deposit ten percent of the sum with the court and undertake a personal recognizance for the remainder. State v. Moncrieffe, 386 A.2d 886, 887 (N.J. Super. Ct. App. Div. 1978). Alternatively, defendants could post a corporate surety bond from an insurance company, which, after collecting a non-refundable fee from them and sometimes requiring collateral, executed a contract with the court and became responsible for the full amount of bail if the defendants failed to appear in court. JCCJ Report at 22. A final option was to post a property bond, for which defendants or their surety pledged real property, such as a deed to a
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house. Id. The court in setting bail was only authorized to consider the risk of flight of defendants and was not authorized to consider any danger they may have presented. AG Dir. 2016–6, at 9; JCCJ Report at 19.
In 2012 two organizations—the Drug Policy Alliance and Luminosity—studied New Jersey’s county jails and found that 73.3% of those held in custody were awaiting trial, and 38.5% of the total jail population had the option to post bail but were in custody due only to their inability to meet the terms of bail. Marie VanNostrand, New Jersey Jail Population Analysis 11, 13 (2013) (“VanNostrand Report”). One in eight inmates—12% of the total population—was in custody because he or she could not pay $2,500 or less.1 Id. at 13. The median length of stay for pretrial detainees was 314 days. Id. at 12.
The State took steps to address these inequities. Governor Christie called in 2012 for a constitutional amendment to allow for pretrial detention in serious cases. See Office of the Courts, Criminal Justice Reform: Annual Report to the Governor & Legislature 1 (2016). And in 2013 Chief Justice Rabner established the Joint Committee on Criminal Justice, “comprised of judges, prosecutors, public defenders, private counsel, court administrators[,] and staff from the Legislature and [the] Governor’s office.” JCCJ Report at 1.
In a March 2014 report the Committee examined the consequences of the State’s then-current bail system and recommended a major change to its approach. Id. In practice, the State’s reliance on monetary bail resulted in the release of
1 This statistic represents those defendants for whom bail was set at $250,000 or less, with the assumption they had a tenpercent cash bail option. See VanNostrand Report at 13.
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defendants who could afford to pay for their release, even if they posed a substantial risk of flight or danger to others, and the pretrial detention of poorer defendants who presented minimal risk and were accused of less serious crimes. Id. at 1–2. The report, supported by extensive research, found significant consequences to pretrial custody: defendants detained in jail while awaiting trial pled guilty more often, were convicted more often, were sentenced to prison more often, and received harsher prison sentences, than those released before trial. Id. The Committee sought to promote defendants’ liberty interests by shifting from a “resourcebased” to a “risk-based” system of bail that relies heavily on release (with non-monetary conditions to address defendants’ particular risks) rather than pretrial detention. Id. at 2–3. The Committee did not recommend the abolition of monetary bail, though it did expect that relying on particular, and often nuanced, conditions would result in monetary bail being set with far less frequency. Id. at 61.
The Legislature ultimately adopted a proposal to amend the State Constitution as follows:
All persons shall, before conviction, be eligible for pretrial release. Pretrial release may be denied to a person if the court finds that no amount of monetary bail, non-monetary conditions of pretrial release, or combination of monetary bail and non-monetary conditions would reasonably assure the person’s appearance in court when required, or protect the safety of any other person or the community, or prevent the person from obstructing or attempting to obstruct the criminal justice process. It shall be lawful for the Legislature to establish by law procedures, terms, and conditions applicable to pretrial
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release and the denial thereof authorized under this provision. N.J. Const. art. I, ¶ 11 (2017). The Legislature also drafted the Criminal Justice Reform Act to implement changes to the State’s bail system and provide for more timely trials.2 The Act, described in greater detail below, stemmed from the passage of the proposed constitutional amendment, which voters approved by a margin of 61.8% to 38.2% in November 2014. See Div. of Elections, Dep’t of State, Official List: Public Question Results for 11/04/2014 General Election Public Question No. 1, at 1 (Dec. 2, 2014). Both the amendment and the Act took effect on January 1, 2017. B. The Reform Act The Reform Act’s three goals are “primarily [to] rely[] upon pretrial release by non-monetary means to reasonably assure an eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, [and] that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process.”3 N.J. Stat. Ann. § 2A:162–15 (2017). Importantly, the Act applies only to “eligible defendants”—those issued “a
2 The speedy trial reforms are not implicated by this appeal. They can be found at N.J. Stat. Ann. § 2A:162–22 (2017).
3 The Act presumes there is a reasonable assurance the eligible defendant will not obstruct or attempt to obstruct the criminal justice process unless the prosecutor provides the court with contrary information relevant to that risk. Id. § 2A:162–17(e). As such, it is mentioned below only generally and not with respect to Holland personally.
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complaint-warrant . . . for an initial charge involving an indictable offense or a disorderly persons offense.” Id. A defendant charged by a complaint-summons will be released from custody and is not subject to the Act. Id. § 2A:162– 16(d)(1).
The Reform Act establishes a multi-step process the court must follow when deciding to release or detain an eligible defendant. First, he or she is temporarily detained to allow the Pretrial Services Program (“Pretrial Services”) to prepare a Public Safety Assessment and recommendation for release conditions and for the court to issue a pretrial release decision. Id. § 2A:162–16(a).
The Public Safety Assessment model, developed by the Laura and John Arnold Foundation, considers nine factors to measure the risk an eligible defendant will fail to appear in court and the risk he or she will engage in new criminal activity while on release. See American Civil Liberties Union of New Jersey et al., New Jersey Pretrial Justice Manual 7, 8 (2016) (“ACLU Pretrial Justice Manual”). The Assessment for each eligible defendant is based on relevant information gathered from his or her electronic court records. AG Dir. 2016–6, at 27. The eligible defendant’s risks for failure to appear and for new criminal activity are graded on a scale of one to six, with six being the greatest risk. He or she may also be flagged for new violent criminal activity. Id. These scores map onto a Decision-Making Framework that recommends a pretrial monitoring level based on the intersection of failure to appear and new criminal activity scores, the new violent criminal activity flag (should there be one), and other factors. Id.; see also Pretrial Release Recommendation Decision Making Framework (DMF) (March 2018).
Level 1 recommends eligible defendants report once a month by phone. Level 2 recommends monthly telephonic
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reporting, monthly in-person reporting, and some monitored conditions (e.g., a curfew). Level 3 recommends weekly telephonic or in-person monitoring and monitored conditions. Level 3+ recommends all the same conditions as level 3 plus electronic monitoring and/or home detention. If release is not recommended, the matrix suggests the eligible defendant be detained pretrial or, if released, ordered to comply with level 3+ conditions. ACLU Pretrial Justice Manual at 10.
The eligible defendant’s first appearance must occur no later than 48 hours after his or her commitment to jail, subject to certain exceptions. N.J. Stat. Ann. § 2A:162– 16(b)(1). At the first appearance the court must make a pretrial release decision unless the prosecutor files a motion for detention, in which case it will hold a separate pretrial detention hearing. Id. §§ 2A:162–17, 2A:162–18(a)(1). In general, that hearing must occur no later than the eligible defendant’s first appearance, or three working days from the date the motion for detention was filed, unless the eligible defendant or prosecutor seeks a continuance. Id. § 2A:162– 19(d)(1).
Not all eligible defendants may be detained pretrial. Rather, a prosecutor may only move to detain an eligible defendant charged with certain crimes, and the court must find clear and convincing evidence that no condition, or combination of monetary and non-monetary conditions, of release can reasonably assure the Act’s goals. Id. §§ 2A:162– 15, 2A:162–18(a)(1), 2A:162–19(a), (e)(3).
At the pretrial detention hearing, the eligible defendant has the right to counsel and to have counsel appointed if he or she is financially unable to obtain representation. He or she is also afforded the opportunity to testify, present witnesses, cross-examine witnesses, and present information by proffer or otherwise. Id. § 2A:162–19(e)(1). The eligible defendant
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may also subpoena and call the State’s witnesses. ACLU Pretrial Justice Manual at 42. Rules concerning admissibility of evidence in criminal trials do not apply to this hearing. N.J. Stat. Ann. § 2A:162–19(e)(1). Further, the eligible defendant is entitled to significant discovery for the detention hearing, including that the prosecutor’s office shall provide “any available preliminary law enforcement incident report concerning the offense and the affidavit of probable cause,” along with all statements or reports relating to the affidavit, evidence the State relies on to establish probable cause at the hearing, and the risk factors that the State advances at the hearing. N.J. Ct. R. 3:4–2(c)(1) (2017). The prosecutor’s office must also provide all exculpatory evidence. Id. If there is no indictment, the prosecutor must establish probable cause that the eligible defendant committed the predicate offense. N.J. Stat. Ann. § 2A:162–19(e)(2).
The court may take into account numerous factors to determine whether to detain the eligible defendant. They include, for example, the nature of the offense charged, the history and characteristics of the eligible defendant, the nature and seriousness of his or her risk of danger, and the release recommendation of Pretrial Services. Id. § 2A:162–20. If the court orders detention, it must include written findings of fact (along with a statement of the reasons for detention) and direct that the eligible defendant be afforded a reasonable opportunity for private consultation with counsel. Id. § 2A:162–21(a). An eligible defendant ordered detained is entitled to appeal that decision in an expedited manner. Id. § 2A:162–18(c). Additionally, the hearing may be reopened at any time before trial if the court finds information that was not known to the prosecutor or the eligible defendant at the time of the hearing and that has a material bearing on whether there are conditions of release that will reasonably assure the Act’s goals. Id. § 2A:162–19(f).
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If the court does not order detention, it must determine what release conditions, if any, should be imposed on the eligible defendant. Id. § 2A:162–18(d). It needs to consider all the circumstances, the Public Safety Assessment and recommendation for release conditions, plus any information provided by a prosecutor or the eligible defendant. Id. §§ 2A:162–16(b)(2), 2A:162–17(a). Based on this information, the court shall order him or her to be released on personal recognizance or on execution of an unsecured appearance bond if either option would reasonably assure the Act’s goals. Id. §§ 2A:162–16(b)(2)(a), 2A:162–17(a). If not, the court may order him or her released on a non-monetary condition or combination of conditions, “with the condition or conditions being the least restrictive . . . that the court determines will reasonably assure” the Act’s goals. Id. § 2A:162–16(b)(2)(b); see also id. § 2A:162–17(b). If none of the above will reasonably assure those goals, the court may order the eligible defendant released on monetary bail, other than unsecured appearance bond, to assure his or her appearance in court (but not to assure a person or the community’s safety), or a combination of monetary bail and non-monetary conditions to assure the goals that apply. Id. §§ 2A:162–16(b)(2)(c), 2A:162–17(c)(1), (d)(1), 2A:162– 18(a)(2).
The release conditions imposed may require, at the minimum, that the eligible defendant refrain from committing any offense during release, avoid all communication with an alleged victim of the crime, avoid communication with specified witnesses who may testify concerning the charged offense, and comply with “any one or more non-monetary conditions” in the statute. Id. § 2A:162–17(b)(1). These nonmonetary conditions include that the eligible defendant:
(a) remain in the custody of a designated person . . . ;
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(b) maintain employment, or, if unemployed, actively seek employment;
(c) maintain or commence an educational program; (d) abide by specified restrictions on personal
associations, place of abode, or travel; (e) report on a regular basis to a designated law
enforcement agency, or other agency, or pretrial services program; (f) comply with a specified curfew; (g) refrain from possessing a firearm, destructive device, or other dangerous weapon; (h) refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance without a prescription . . . ; (i) undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose; (j) return to custody for specified hours following release for employment, schooling, or other limited purposes; (k) be placed in a pretrial home supervision capacity with or without the use of an approved electronic monitoring device . . . ; or (l) satisfy any other condition that is necessary to reasonably assure [the Act’s goals].
Id. § 2A:162–17(b)(2). If the court orders conditions contrary to the Public Safety Assessment’s recommendation, it must provide an explanation for its decision in the document that authorizes the eligible defendant’s release. Id. § 2A:162– 23(a)(2). Additionally, the State Superior Court may later review conditions of release on its own motion, or a motion by the prosecutor or the eligible defendant, alleging there has been a “material change in circumstance that justifies a change in conditions.” N.J. Ct. R. 3:26–2(c)(2). Any review
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of conditions under this rule must be decided within 30 days of the date the motion was filed and the judge may set new conditions of release on a finding that there has been a material change in circumstances. Id.
The State has released statistics on pretrial release and detention for the year following the Reform Act’s implementation. In 2017 142,663 defendants were charged by either a complaint-warrant or a complaint-summons. Of those, 44,319 defendants were issued a complaint-warrant. Prosecutors filed 19,366 motions for pretrial detention, and courts ordered 8,043 eligible defendants detained. The pretrial detention rate for all eligible defendants was 18.1%, and the overall pretrial detention rate (considering complaint-warrants and complaint-summonses) was 5.6%. See Office of the Courts, Criminal Justice Reform: Annual Report to the Governor & Legislature 4 (2017) (“CJR Report 2017”). Pretrial monitoring level 3+ was ordered for 8.3% of eligible defendants. See Initial Release Decisions for Criminal Justice Reform Eligible Defendants (January 1 – December 31, 2017) (“Initial Release Decisions 2017”). Additionally, judges ordered only 44 eligible defendants to post monetary bail in 2017. Overall, the State’s pretrial jail population was reduced by 20%. CJR Report 2017, at 4.
C. The Parties
Holland was arrested in April 2017 for his alleged involvement in a bar fight, and he was charged with seconddegree aggravated assault. The Affidavit of Probable Cause in support of the criminal complaint noted Holland struck the victim in the face in the parking lot outside a bar, then continued to strike the victim in the head and face after he fell to the ground, causing serious bodily harm. Holland then fled the scene and was apprehended at his home with his clothing covered in fresh blood.
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The Camden County Prosecutor’s Office filed a motion for pretrial detention due to the severity of Holland’s alleged offense and his prior conviction for simple assault. The Decision-Making Framework recommended pretrial detention in part because the Public Safety Assessment flagged Holland for a risk of new violent criminal activity. Represented by a Public Defender, Holland negotiated for level 3+ non-monetary pretrial release conditions in exchange for the prosecutor’s withdrawal of the motion. He appeared in court and accepted the negotiated agreement, which included home detention and electronic monitoring, and he declined to proceed with a pretrial detention hearing. Holland is currently on pretrial release with conditions including home detention (except for employment) and electronic monitoring. He has not sought a judicial determination of his conditions of release or any modification of the agreed conditions.
Lexington is a Florida corporation based in Maryland. It operates through independent bail bondsmen who are licensed by the New Jersey Department of Banking and Insurance and registered with the Superior Court clerk. It primarily underwrites bail bonds and acts as a corporate surety of bail bonds.
D. Procedural History
Holland and Lexington filed a class action Complaint and a Motion for a Preliminary Injunction on June 14, 2017. The State then filed an opposition to the injunction motion, to which Holland and Lexington replied. The American Civil Liberties Union filed a motion for leave to appear as amicus curiae on behalf of itself and the ACLU of New Jersey, Drug Policy Alliance, Latino Action Network, and National Association for the Advancement of Colored People – New Jersey Conference. The District Court granted the request of the national ACLU, which then submitted a brief and
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participated in oral argument in support of the State. The Court convened a preliminary injunction hearing; after hearing oral argument, it denied the motion.
First, the Court considered Holland and Lexington’s standing to raise their claims. It held Holland has standing on his own (called first-party standing) because his alleged injury would be redressed by a favorable judicial decision. However, it held that Lexington lacks first-party and thirdparty standing, the latter allowing a litigant to assert in certain circumstances claims of other parties. The Court reached its conclusion about third-party standing after finding Lexington had sufficiently alleged injury, but even assuming it has a close relationship with criminal defendants, it did not sufficiently allege criminal defendants face obstacles to pursuing their own claims that only Lexington can address adequately. The Court did not opine on whether Lexington’s alleged injury fell outside the “zone-of-interests” of the Eighth, Fourteenth, and Fourth Amendments.
Second, in response to the State’s argument that the Court must abstain from interfering with Holland’s ongoing state criminal prosecution per Younger v. Harris, 401 U.S. 37 (1971), it applied Gerstein v. Pugh, 420 U.S. 103 (1975) (narrowing the scope of Younger abstention), and held abstention is not warranted.
Third, the Court addressed the merits of Holland’s motion for a preliminary injunction. It examined the history of the Eighth Amendment’s Excessive Bail Clause and held the argument for the right to monetary bail was unlikely to succeed on the merits. The Court then reviewed the procedures provided by the Reform Act and concluded the statute did not violate procedural due process and, in any event, Holland waived the process available to him by agreeing to level 3+ conditions. It also held the statute’s
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subordination of monetary bail did not violate substantive due process because Holland did not present any grounds for finding an option to obtain monetary bail is a fundamental right or is implicit in the concept of ordered liberty. Finally, it held the conditions imposed on Holland were not an unreasonable search under the Fourth Amendment because the prosecutor had to show there was probable cause for his charged offense, and Holland waived the opportunity to have a full pretrial detention hearing.
The Court turned to the likelihood Holland will suffer irreparable harm. It held there was scant likelihood of that occurring if an injunction were denied because Holland’s suggested harm was the deprivation of his constitutional right to the option, alongside non-monetary bail, of monetary bail, which would have required the Court to hold there was such a right. Moreover, it noted Holland still has the ability to seek a modification of his conditions of release in the New Jersey court.
The balance of harms weighed against granting the requested injunction. The Court noted that such an injunction mandating consideration of monetary bail risked reinstalling the system of financial requirements that previously relegated to pretrial detention those unable to meet modest monetary bail requirements. It found the harm to Holland of denying the injunction was minimal because, even if monetary bail were set for him, he would likely have to pay a nonrefundable bail bond premium.
Finally, the Court determined the public interest disfavors an injunction. It found the reforms implemented by the State support the public interest, particularly in light of the well-documented shortcomings of the prior monetary bail system.
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II. Jurisdiction and Standard of Review
The District Court had federal question jurisdiction, 28 U.S.C. § 1331, and we have jurisdiction over final orders of the Court under 28 U.S.C. § 1291. We exercise plenary review over challenges to the constitutionality of statutes. United States v. Pendleton, 636 F.3d 78, 82 (3d Cir. 2011). With respect to the denial of a preliminary injunction, we review findings of fact for clear error, legal conclusions de novo, and the decision to grant or deny the injunction for an abuse of discretion. Del. Strong Families v. Att’y Gen. of Del., 793 F.3d 304, 308 (3d Cir. 2015).
A preliminary injunction “is an extraordinary remedy . . . which should be granted only in limited circumstances.” Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426–27 (3d Cir. 1994) (citation omitted). We do not issue that relief “unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted) (emphasis omitted). That burden typically involves four factors: (1) a reasonable likelihood of success on the merits; (2) irreparable harm to the applicant; (3) whether the denial of a preliminary injunction would injure the moving party more than the issuance of an injunction would harm the non-moving party; and (4) whether the grant of relief would serve the public interest. Del. Strong Families, 793 F.3d at 308.
The first two factors are prerequisites for a movant to prevail. Cf. In re Revel AC, Inc., 802 F.3d 558, 568 (3d Cir. 2015) (citing Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 386 (7th Cir. 1984) (Posner, J.)) (reasoning, in the analogous context of a stay pending appeal, the movant must demonstrate both of the first two factors). The former requires Holland to “demonstrate that [he] can win on the merits
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(which requires a showing significantly better than negligible but not necessarily more likely than not).” Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). Because we hold Holland has not made that demonstration, we do not delve deeply into the second factor, which would require Holland to show “that [he] is more likely than not to suffer irreparable harm in the absence of preliminary relief.” Id. Though Holland argues irreparable harm exists because he is “subjected to severe restrictions of liberty without being offered the constitutionally required alternative of monetary bail,” Appellants’ Br. at 51–52, we discern in the Eighth, Fourteenth, and Fourth Amendments no constitutional requirement of monetary bail on the same priority level as non-monetary bail. Hence Holland is unlikely to suffer irreparable harm absent a preliminary injunction. (And, as the District Court noted, he may seek to modify his conditions of release in the New Jersey court.)
As Holland has not made the threshold showing on both of the prerequisite factors, we do not consider and balance the third and fourth factors—“the possibility of harm to other interested persons from the grant or denial of the injunction[] and . . . the public interest.” Reilly, 858 F.3d at 176 (citation omitted).
III. Standing
Before we reach the constitutional questions raised in this appeal, we address the parties’ standing. The State argues the District Court erred in holding Holland has first-party standing because he did not suffer an injury-in-fact and because his alleged injury is not redressable by a court. Lexington asserts the Court also erred in holding it lacks third-party standing because it has a common interest with criminal defendants and they face obstacles to appealing their pretrial release decisions.
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For Holland to have standing, he must “have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The parties do not contest that Holland’s alleged injury is traceable to the State’s conduct. Rather, the State raises three arguments contesting Holland’s standing. It argues before us that Holland did not allege in his Complaint that the “unconstitutional process” injured him, but rather it was the imposition of non-monetary conditions of pretrial release without considering monetary bail as a non-subordinated option. Additionally, it contends that, even if monetary bail were considered alongside nonmonetary release conditions, Holland would still be subject to restrictive conditions to address his risk to the community or other persons. Finally, it asserts Holland failed to carry the burden of demonstrating he has an injury-in-fact (i.e., one that is real and particular to him, called in constitutional argot “concrete and particularized”) in part because he opted out of the pretrial detention hearing.
Each of the State’s arguments fails. First, the State reads Holland’s Complaint too narrowly. His prayer for relief—a preliminary injunction against imposing “severe restrictions on . . . pre-trial liberty . . . without offering the option of non-excessive monetary bail”—could fairly be read to mean the State court must offer (or have the option to offer) monetary bail when setting release conditions. Second, even assuming the Act’s process is unconstitutional, the District Court correctly determined that if monetary bail were required to be considered on equal footing with non-monetary release conditions, Holland’s injury—the “unconstitutional process”—would be redressed regardless what release conditions would be imposed. Cf. Stehney v. Perry, 101 F.3d 925, 931 (3d Cir. 1996) (holding plaintiff’s injury would be redressed by a new employment review). Third, if the Act’s
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process deprived Holland of a constitutional right, his injury would be both concrete and particularized even though he opted out of the hearing. Holland contends he did not have access to a constitutionally compliant process. If so, this affected him personally and in a real way by disallowing him the opportunity to have monetary bail set even if he had agreed to participate in the process provided.
Lexington does not challenge the District Court’s holding that it lacks first-party standing, and instead argues on appeal that the Court erred in holding it lacks third-party standing. We have recognized the prudential doctrine of thirdparty standing, which, to repeat, allows in limited circumstances litigants to assert claims based on the rights of third parties. See Pa. Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 287–88 (3d Cir. 2002). It may be appropriate “if a course of conduct prevents a thirdparty from entering into a relationship with the litigant (typically a contractual relationship), to which relationship the third party has a legal entitlement.” Id. at 288 (citation omitted) (quotation marks omitted). A plaintiff asserting a third-party claim needs to meet three conditions: “[(]1) the plaintiff must suffer injury; [(]2) the plaintiff and the third party must have a ‘close relationship’; and [(]3) the third party must face some obstacles that prevent it from pursuing its own claims.” Id. at 288–89. Lexington, as the plaintiff, asserts it satisfies each of these conditions: it suffered an injury because the Reform Act “all but eliminated” the use of monetary bail and bail bonds; it has a common interest with criminal defendants like Holland in courts considering monetary bail alongside restrictive release conditions; and criminal defendants subject to home detention and electronic monitoring face obstacles to pursuing litigation themselves because of the nature and cost of challenges to pretrial-release decisions.
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The State does not challenge that Lexington has sufficiently alleged injury due to its loss of business by the Act’s shift away from monetary bail. Even assuming this factor is met, Lexington fails to satisfy the second and third conditions required for third-party standing—it has no relationship, let alone a close relationship, with potential criminal defendant-customers. In Kowalski v. Tesmer, the Supreme Court considered whether a “future attorney-client relationship with as yet unascertained Michigan criminal defendants who will request, but be denied, the appointment of appellate counsel” based on the operation of a state statute met the “close relationship” factor. 543 U.S. 125, 130 (2004) (citation omitted) (quotation marks omitted). It held the hypothetical relationship was not a “close” one; indeed, “they have no relationship at all.” Id. at 131. The closeness of Lexington’s hypothetical relationship with potential customers closely mirrors that of attorneys with potential clients.
We also follow Kowalski to hold Lexington has not demonstrated that potential criminal defendant-customers face obstacles to pursuing their own claims. The attorneys in Kowalski argued indigent defendants are hindered in advancing their own constitutional rights because “unsophisticated, pro se criminal defendants could not satisfy the necessary procedural requirements, and, if they did, they would be unable to coherently advance the substance of their constitutional claim.” Id. at 132. The Supreme Court rejected this “hypothesis” by pointing to examples of pro se criminal defendants challenging the denial of appellate counsel. Id. We similarly reject Lexington’s hypothesis that criminal defendants under home detention and electronic monitoring face obstacles to pursuing litigation when Holland appears to have the unfettered ability to do so.
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In this context, Holland has standing to bring his constitutional claims. Lexington does not.
IV. Likelihood of Success on the Merits
Holland challenges the Reform Act on the ground there is a constitutional right to have the option of posting monetary bail to secure pretrial release.4 We address the likelihood of success for each constitutional argument in turn.
A. Eighth Amendment
The Eighth Amendment to our Constitution provides in part that “[e]xcessive bail shall not be required.” U.S. Const. amend. VIII. It applies to the State of New Jersey through the Fourteenth Amendment. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) (internal citation omitted); Sistrunk v. Lyons, 646 F.2d 64, 66 (3d Cir. 1981). Though there persists a rigorous debate whether the Excessive Bail Clause incorporates a “right to bail” inherent in its proscription of excessive bail, that is not the question we answer today. Even assuming the Eighth Amendment provides a “right to bail,” we must determine whether that right requires monetary bail (i.e., cash bail or a corporate
4 We understand “monetary bail,” as Holland uses the term, to refer to only cash bail and corporate surety bonds, Appellants’ Br. at 1, 2, 6, 15–16, because he does not mention or allude to property bonds and because the Reform Act retains unsecured appearance bonds (also a form of monetary bail) for those eligible defendants who pose little risk of flight and danger. See N.J. Stat. Ann. §§ 2A:162–16(b)(2)(a), 2A:162–17(a); see also Rice, 350 A.2d at 99.
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surety bond) to be considered in line with non-monetary release conditions.
At time of the Constitution, “bail” in criminal cases relied on personal sureties—a criminal defendant was delivered into the custody of his surety,5 who provided a pledge to guarantee the defendant’s appearance at trial and, in the event of nonappearance, a sum of money.6 Anthony Highmore, A Digest of the Doctrine of Bail; In Civil and Criminal Cases, v–vi, 197 (1783). In the English tradition of bail that influenced early American practice, the pledge did not require any upfront payment to secure the conditional promise to pay, and producing the defendant for trial voided any later-arising obligation to pay. June Carbone, Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, 34 Syracuse L. Rev. 517, 520–21 (1983); F.E. Devine, Commercial Bail Bonding 5 (1991) (citing William Blackstone, Commentaries on the Laws of England 340–42 (Chitty Ed. 1857)); see also Lord
5 A defendant in a surety’s custody is not physically confined by him; rather, the surety is legally responsible for producing the defendant at trial. See Jonathan Drimmer, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. 731, 746–47 (1996).
6 In his Commentaries, William Blackstone mentions defendants sometimes giving a pledge on their own behalf in criminal cases (akin to what is now known as an unsecured appearance bond), but it appears this practice was less common as compared to personal suretyship. F.E. Devine, Commercial Bail Bonding 4 (1991) (citing William Blackstone, Commentaries on the Laws of England 297 (Chitty Ed. 1857)).
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Edward Coke, A Treatise of Bail and Mainprize (1635), reprinted in Lord Edward Coke & William Hawkins, Three Law Tracts 279 (1764) (explaining “bail” derived from the French word bailer, meaning “to deliver,” “because he that is bailed, is as it were delivered into the hands and custody of those that are his pledges and sureties.”). Additionally, unlike corporate sureties of today, personal sureties did not receive any compensation for making a pledge on behalf of the criminal defendant. Devine at 6–7; Peggy M. Tobolowsky & James F. Quinn, Pretrial Release in the 1990s: Texas Takes Another Look at Nonfinancial Release Conditions, 19 New Eng. J. on Crim. & Civ. Confinement 267, 274 (1993).
The early adoption of a personal surety system is reflected in a number of American colonies’ laws. New Jersey’s colonial predecessor, for example, provided “[t]hat all persons arrested shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident or presumption great.” Aaron Leaming & Jacob Spicer, The Grants, Concessions, and Original Constitutions of the Province of New Jersey 235 (2d ed. 1881); see also Sistrunk, 646 F.2d at 68 n.13. It is in this context numerous colonies prohibited excessive bail. See, e.g., Cobb v. Aytch, 643 F.2d 946, 958–60 n.7 (3d Cir. 1981) (en banc) (citing Virginia Bill of Rights § 9 (1776); Massachusetts Bill of Rights art. XXVI (1780)).
Prior to the ratification of the United States Constitution, the Northwest Ordinance created a federal statutory right to bail that replicated that of New Jersey. See Northwest Ordinance, 1 Stat. at Large 52, art. 2 (1787) (“All persons shall be bailable, unless for capital offences where the proof shall be evident or the presumption great.”). After its ratification, the Judiciary Act of 1789 did largely the same. See Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 73, 91 (“[B]ail
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shall be admitted, except where the punishment may be death . . . .”).
By contrast, the Constitution’s Bill of Rights, through the Eighth Amendment, prohibited excessive bail. The Amendment was taken, with minimal alteration, from the English Bill of Rights of 1689. In England that clause was not thought to afford a right to bail in all cases, “but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail.” United States v. Perry, 788 F.2d 100, 111 (3d Cir. 1986) (quoting Carlson v. Landon, 342 U.S. 524, 545 (1952)); see also Bill of Rights, 1 W. & M. st. 2, c. 2, preamble, cl. 10 (1689). In a similar vein, many states’ constitutions, including that of New Jersey, separately guaranteed bail by sufficient sureties for non-capital offenses and prohibited excessive bail.7 N.J Const. of 1844, art. I, ¶¶ 10, 15 (1844); see also Caleb Foote, Coming Constitutional Crisis in Bail, 113 U. Pa. L. Rev. 959, 975 (1965).
In the context of the early personal surety bail system, the Eighth Amendment prohibited the demand that a surety pledge an excessive sum of money to secure the defendant’s release. See United States v. Burr, 25 F. Cas. 55, 62 (Va. Cir. Ct. 1807). Thus personal surety bail may be characterized as a form of monetary bail, in that the surety agreed to pay a sum of money if the defendant failed to appear. But Holland does not argue the Amendment provides a right to personal surety bail; rather, he asserts the Amendment provides a right to pretrial release secured by cash bail or corporate surety bond.
7 As in England, courts sometimes allowed defendants to make a pledge on their own behalf (alone or with third parties as co-signors). See Respublica v. Burns, 1 Yeates 370, 370 (Pa. 1794).
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He has not shown, however, that “bail” at the time of the Constitution’s ratification contemplated either of these two forms of monetary bail, and we find no evidence that they were in practice at that time. Hence, even if the Eighth Amendment provides a “right to bail,” we do not construe its original meaning to include a right to make a cash deposit or to obtain a corporate surety bond to secure pretrial release.
Contemporary definitions of “bail” reflect its early form and a broader meaning that has taken hold over time. “Bail,” in the criminal justice context, is defined variously as: (1) “the custody of a prisoner or one under arrest by one who procures the release of the prisoner or arrested individual by giving surety for his due appearance;” (2) “the security or obligation given for the due appearance of a prisoner in order to obtain his release from imprisonment;” (3) “the temporary delivery or release of a prisoner upon security for his due appearance;” (4) “one that agrees to assume legal liability for a money forfeit or damages if a prisoner released on bail fails to make his due appearance in court;” and (5) “the process by which a person is released from custody.” Bail, Webster’s Third New Int’l Dictionary 163 (1971). The last iteration is how we often think of bail colloquially: a means of achieving pretrial release from custody conditioned on adequate assurances.
The Supreme Court’s use of “bail” since the middle of the Twentieth Century points to this broader definition. In Stack v. Boyle, the Court described a statutory “right to bail” as the “traditional right to freedom before conviction,” and “[t]he right to release before trial . . . conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty.” 342 U.S. 1, 4 (1951). The early practice of bail was the “securing [of] oaths of responsible persons to stand as sureties for the accused,” whereas the practice in the 1950s was “requiring a bail bond
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or a deposit of a sum of money subject to forfeiture [to] serve[] as additional assurance of the presence of an accused.” Id. at 5. Bail is a “conditional privilege” that enables accused persons “to stay out of jail until a trial has found them guilty.” Id. at 8 (Jackson, J., concurring).
In United States v. Salerno, the Supreme Court addressed a constitutional challenge to the Bail Reform Act of 1984, 18 U.S.C. §§ 3141–3150, contending that it violates the Excessive Bail Clause because it allows a court to set bail and order detention for reasons not related to risk of flight. 481 U.S. 739, 752–53 (1987). The Court held the Act did not violate the Eighth Amendment because “[t]he only arguable substantive limitation of the [Excessive] Bail Clause is that the Government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.” Id. at 754. The Court’s reasoning treats “bail” not narrowly, but broadly as “release before trial . . . conditioned upon the accused’s giving adequate assurance[s].” Stack, 342 U.S. at 4. (Similarly, we have previously described bail as reconciling “pretrial liberty with the need to assure the defendant’s presence at trial,” Sistrunk, 646 F.2d at 68, and the Excessive Bail Clause as “applicable solely to . . . conditions of release or detention designed to assure a criminal defendant’s appearance at trial . . . ,” Perry, 788 F.2d at 112.)
With this understanding, we consider Holland’s argument that the Reform Act violates the Eighth Amendment because it bars a New Jersey court from considering or offering criminal defendants monetary bail alongside restrictive conditions such as home detention and electronic monitoring. Under an original meaning, even assuming there is a “right to bail,” we have already noted it did not contemplate monetary bail as Holland describes it, i.e., cash bail or corporate surety bond. Neither does a
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contemporary definition of bail mean exclusively monetary bail; non-monetary conditions of release are also “bail.”
Holland further argues that, under a broad definition of “bail,” the Reform Act would violate the Eighth Amendment by subjecting defendants to home detention and electronic monitoring “when monetary bail would suffice.” Appellants’ Br. at 39 n.1. In effect, he asserts the Eighth Amendment’s prohibition of excessive bail is violated when there is a less restrictive alternative to the conditions of release ordered by a court. But that is not the test articulated by Salerno; for those conditions, however restrictive, to violate the Eighth Amendment, they must be “excessive in light of the perceived evil.” Salerno, 481 U.S. at 754 (quotation marks omitted); see also United States v. Gardner, 523 F. Supp. 2d 1025, 1031 (N.D. Cal. 2007). Holland’s release conditions are hardly excessive in light of the State’s legitimate interest in addressing his risk of flight and risk of danger to others; the existence of a purportedly less restrictive means does not bear on whether the conditions are excessive.
Holland also claims the Reform Act violates the Excessive Bail Clause because it imposes severe restrictions on “all defendants[’]” pretrial liberty except those who can be released on their own recognizance.8 Appellants’ Br. at 36. This statement and Holland’s claim that the Reform Act “authoriz[es] severe liberty restrictions of non-dangerous
8 Holland further argues on appeal that the Reform Act imposes severe restrictions on all defendants without any heightened showing of dangerousness, thus violating the Excessive Bail Clause. Whether a heightened showing ought to be required is not properly before us because it was not raised in the District Court. Hormel v. Helvering, 312 U.S. 552, 556 (1941).
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defendants” misconstrue the Act’s statutory requirements. Id. at 38 (emphasis in original). The conditions of release imposed on Holland may only be applied if they are the “least restrictive . . . conditions that the court determines will reasonably assure [his] appearance in court when required [and] the protection of the safety of any other person or the community . . . .” N.J. Stat. Ann. § 2A:162–16(b)(2)(b). In practice this has resulted in pretrial monitoring level 3+ home detention and electronic monitoring being ordered for 8.3% of eligible defendants, far from “all defendants.” And if a court sought to impose home detention and electronic monitoring on a non-dangerous defendant who presents little risk of flight, it would have to contend with the Act’s command that only the least restrictive conditions reasonably assuring the Act’s goals may be imposed. If those conditions were excessive in light of the State’s legitimate interests, it would also come up against the Eighth Amendment’s proscription of excessive bail. This hypothetical scenario, we point out, does not concern Holland, who has not challenged his classification as a potentially dangerous defendant.
Finally, though he waived his statutory right to a pretrial detention hearing, Holland still has an opportunity to argue for a change in his release conditions and potentially request that monetary bail be set. This requires a material change in circumstances justifying a modification. N.J. Ct. R. 3:26–2(c)(2).
In this context, Holland has not demonstrated a likelihood of success on the merits of his argument that the Excessive Bail Clause guarantees a right to monetary bail. Regardless whether the Clause incorporates a right to bail, the latter is not limited to cash bail or corporate surety bonds; it is, to repeat, “release before trial . . . conditioned upon the accused’s giving adequate assurance[s].” Stack, 342 U.S. at 4. The Clause does not dictate whether those assurances must be
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based on monetary or non-monetary conditions. Hence the Eighth Amendment does not require a New Jersey court to consider monetary bail with the same priority as nonmonetary bail for a criminal defendant.
B. Fourteenth Amendment
The Fourteenth Amendment of the Constitution forbids states from depriving “any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV. This provision contains both substantive and procedural components. Steele v. Cicchi, 855 F.3d 494, 501 (3d Cir. 2017). Holland claims the Reform Act’s subordination of monetary bail violates both.
1. Substantive Due Process
Substantive due process “limits what [the] government may do regardless of the fairness of [the] procedures that it employs,” id. at 501 (citation omitted), to “guarantee protect[ion] against government power arbitrarily and oppressively exercised,” id. (alteration in original) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). To show a violation, Holland must first demonstrate that he has “been deprived of a particular interest that is protected by . . . substantive due process.” Id. (citation omitted) (quotation marks omitted). This requires “a careful description of the asserted fundamental liberty interest . . . ; vague generalities . . . will not suffice.” Chavez v. Martinez, 538 U.S. 760, 775– 76 (2003) (quotation marks omitted); see also Washington v. Glucksberg, 521 U.S. 702, 721 (1997).9
9 The State argues we should not engage in a substantive due process analysis because Holland’s claim is covered by the Eighth Amendment and/or the Fourth Amendment. For the
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For a putative right to be “fundamental” under the Due Process Clause, it must be “deeply rooted in this Nation’s history and tradition,” Lutz v. City of York, Pa., 899 F.2d 255, 267 (3d Cir. 1990) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)), or “implicit in the concept of ordered liberty,” id. (citation omitted); see also Glucksberg, 521 U.S. at 720–21. Both the Supreme Court and our Court have repeatedly warned that we cannot read these phrases too broadly to expand the concept of substantive due process, as “guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). A court “is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Lutz, 899 F.2d at 267 (citation omitted).
If the right is fundamental, its infringement must be “narrowly tailored to serve a compelling state interest.” Chavez, 538 U.S. at 775; see also Glucksberg, 521 U.S. at 721 (citation omitted). But where fundamental rights or interests are not implicated or infringed, we typically require only a “legitimate state interest that the legislature could rationally conclude was served by the statute.” Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir. 2000) (citation omitted).
We have previously held substantive due process protects freedom “from government custody, detention, or other forms of physical restraint prior to any determination of
reasons contained in this opinion, those constitutional provisions do not protect Holland’s claim, and thus we proceed to our analysis of substantive due process. See Lewis, 523 U.S. at 843.
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guilt.” Steele, 855 F.3d at 502 (quoting Zadvydas v. Davis, 533 U.S. 678, 690 (2001)) (quotation marks omitted); see also Perry, 788 F.2d at 112 (“[T]here is a substantive liberty interest in freedom from confinement.”). Nevertheless, “an arrestee’s right to freedom from pretrial detention is subordinated . . . where there has been an adjudication that detention is necessary because an arrestee presents an identified and articulable threat to an individual or the community . . . or to ensure [his or her] presence at trial . . . .” Steele, 855 F.3d at 502 (quoting Salerno, 481 U.S. at 750–51, and Bell v. Wolfish, 441 U.S. 520, 523 (1979)) (quotation marks omitted); see also Perry, 788 F.2d at 113 (“[A] demonstration of dangerousness justifies deprivation of liberty by civil commitment without offending the substantive due process limitation upon government.”).
Holland, however, claims substantive due process protects his right to have the option to deposit money or obtain a corporate surety bond to secure his future appearance before he may be subjected to “severe deprivations of pretrial liberty.” So “[w]e begin, as we do in all due process cases, by examining our Nation’s history, legal traditions, and practices.” Glucksberg, 521 U.S. at 710.
Holland has not pointed us to any evidence of cash bail or corporate surety bonds in early bail practice in the United States, nor did our search reveal any. Rather, both modern forms of bail appear to have emerged in the mid-to-late Nineteenth Century, largely as a product of the expansive frontier and urban areas in America diluting the personal relationships necessary for a personal surety system. Comment, Bail: An Ancient Practice Reexamined, 70 Yale L.J. 966, 967–68 (1961); Jonathan Drimmer, When Man Hunts Man: The Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. 731, 749 (1996). With respect to cash bail, some jurisdictions deemed
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the practice illegal because it would not secure the government’s interest in the accused appearing at trial.10 But by the Twentieth Century many jurisdictions (even if not yet states) enacted statutes to allow it in certain circumstances,11
10 Butler v. Foster, 14 Ala. 323, 325–26 (1848); United States v. Faw, 1 Cranch C.C. 486, 486 (D.C. Cir. 1808); Smart v. Cason, 50 Ill. 195, 197 (1869); State v. Reiss, 12 La. Ann. 166, 166–67 (1857) (“There is no law which authorizes a Sheriff to receive money as a security for the appearance of persons accused of crime. Where parties are admitted to bail under bonds and recognizances, they are not absolutely discharged, but are (as it were) transferred from the custody of the Sheriff to the friendly custody of the sureties in the bond or recognizance.”); People v. Rutan, 3 Mich. 42, 50–51 (1853); Reinhard v. Columbus, 31 N.E. 35, 38 (Ohio 1892).
11 Alaska Crim. Proc. Code ch. 23, § 229 (1900) (adopting law of Oregon); Ariz. Rev. Stat. tit. 12, ch. 5, § 1981 (1887); Ark. Code Prac. Civ. & Crim. Cases tit. 5, ch. 3, § 84 (1869); Cal. Crim. Proc. Code ch. 119, pt. 4, tit. 3, ch. 7, § 151 (1850); Ind. Rev. Stat. ch. 4, art. 9, § 1706 (1881); Iowa Code pt. 4, tit. 25, ch. 196, § 3232 (1851); Kan. Stat. ch. 82, art. 9, § 145 (1868); Ky. Crim. Code tit. 5, ch. 3, § 84 (1867); Mass. Gen. Laws pt. 4, tit. 2, ch. 212, § 68 (1882); Mont. Rev. Stat. div. 3, ch. 11, § 249 (1879); Nev. Rev. Stat. ch. 53, tit. 4, pt. 10, § 2141 (1873); 1898 N.J. Laws 875; N.Y. Crim. Proc. Code pt. 4, tit. 11, ch, 1, art. 5, § 648 (1850); N.D. Rev. Crim. Proc. Code ch. 6, art. 5, § 7856 (1895); Okla. Stat. ch. 72, art. 5, § 67 (1890); Or. Crim. Code tit. 1, ch. 25, § 1483 (1887); Tenn. Code pt. 4, tit. 4, ch. 10, art. 4, § 5167 (1857); Utah Code Ann. tit. 76, ch. 16, § 4662 (1898); Wash. Rev. Code ch. 83, § 1036 (1881); Wisc. Stat. tit. 33, ch. 195, § 4816
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and others followed in the early and mid-Twentieth Century (including some jurisdictions that had previously barred it).12
(1898); Cressey v. Gierman, 7 Minn. 398, 404 (1862) (citing state statute that permits defendants to deposit money in lieu of bail); Raisin Fertilizer Co. v. Grubbs, 19 S.E. 597, 597 (N.C. 1894) (same).
12 D.C. Code ch. 20, § 938 (1906); Idaho Penal Code tit. 23, ch. 235, § 5647 (1901); 37 Ill. Comp. Stat. ¶ 3363 (1920); La. Code Crim. Proc. Ann. art. 97 (1929); 1919 Mich. Pub. Acts 332 (1919); S.D. Codified Laws tit. 11, ch. 11, § 590 (1903); Holcombe v. Pierce, 43 So. 2d 640, 642–43 (Ala. 1949) (noting 1949 Act amended Alabama Code to permit cash bail); Puchuneicz v. Chellis, 27 Ohio N.P. (n.s.) 494, 495 (1929) (noting Chapter 14, Section 8 of new criminal code allows for deposit of cash in lieu of recognizance); State ex rel. City of Beckley v. Roberts, 40 S.E.2d 841, 845 (W. Va. 1946) (noting 1943 Act authorized cash bail). Compare Conn. Gen. Stat. tit. 20, ch. 13, pt. 3, § 1 (1875), with 1909 Conn. Pub. Acts ch. 72 (1909). Compare Fla Laws div. 5, pt. 2, tit. 2, ch. 1, art. 2, § 3926 (1906), with Fla. Laws div. 5, pt. 2, tit. 2, ch. 1, art. 2, § 3936a (1914). Compare Maine Rev. Stat. Ann. tit. 11, ch. 135, § 6 (1916), with Maine Rev. Stat. Ann. tit. 11, ch. 145, § 28 (1930). Compare R.I. Gen. Laws tit. 37, ch. 354, § 15 (1909), with R.I. Gen. Laws tit. 40, ch. 407, § 6323 (1923). Compare S.C. Crim. Code tit. 1, ch. 2, § 28 (1902), with S.C. Crim. Code tit. 1, ch. 2, § 37 (1912). Compare Va. Code. tit. 41, ch. 198, § 4972 (1918), with Va. Code tit. 41, ch. 198, § 4973a (1924). Compare Wyo. Stat. Ann. div. 5, tit. 2, ch. 2, § 5182 (1899), with Wyo. Stat. Ann. ch. 397, § 6087 (1910). Compare Commonwealth v. Fortini, 27 Pa. D. 521, 522 (1918) (“[W]e have no statute in
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Outside the statutes’ circumscribed scope, however, numerous jurisdictions made clear that cash bail was not available in common law as an alternative to obtaining a personal surety.13 Even through the 1950s a few jurisdictions had no statutory provision for cash bail, and we see no
Pennsylvania that permits cash bail.”), with 1919 Pa. Laws 102, § 2 (1919). Cash bail also became an option in Maryland and New Hampshire, but it is unclear whether its basis was statutory. Outerbridge Horsey Co. v. Martin, 120 A. 235, 235–36 (Md. 1923); Rockingham Cty. v. Chase, 71 A. 634, 635 (N.H. 1908). The same was true for the then-Territory of Hawaii. See Territory v. Ah Sing, 18 Haw. 470, 471 (1907).
13 Paton v. Teeter, 37 Cal. App. 2d 477, 479 (Dist. Ct. App. 1940) (holding cash bail may not be accepted in place of a surety absent a statutory provision authorizing such acceptance); Palakiko v. Cty. of Maui, 22 Haw. 759, 760 (1915) (same); State v. Owens, 84 N.W. 529, 530 (Iowa 1900) (same); Applegate v. Young, 61 P. 402, 402 (Kan. 1900) (same); Badolato v. Molinari, 174 N.Y.S. 512, 514 (Crim. Ct. 1919) (same); Exchange Trust Co. v. Mann, 269 P. 275, 276 (Okla. 1928) (same); Brasfield v. Town of Milan, 155 S.W. 926, 927 (Tenn. 1913) (same); Kellogg v. Witte, 182 P. 570, 571 (Wash. 1919) (same). But see Rowan v. Randolph, 268 F. 529, 530 (7th Cir. 1920) (holding a judge does not have the discretion to refuse to accept cash bail and require a surety in common law “where the penalty of the bond is payable in money” and the amount of the penalty was tendered upfront as security).
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evidence its practice was accepted based on prior decisions not overturned.14
Rather than a product of statute, by contrast it appears commercial bail bonding was a product of economic opportunity presented by the eroding personal surety system. The first bail bond business in the United States is widely thought to have formed in 1898 in San Francisco. The Old Lady Moves On, Time Mag., Aug. 18, 1941. By 1912 the Supreme Court recognized the permissibility of commercial contracts for bail bonds. Leary v. United States, 224 U.S. 567, 575 (1912). But widespread criticism of the practice, leading to reform, shortly followed. A landmark study on the bail system in Chicago in the 1920s described rampant abuses in
14 Lowrie v. Harvey, 10 P.2d 335, 335–36 (Colo. 1932) (noting no statutory provision for the acceptance of cash or its equivalent in lieu of bond); Scarboro v. State, 62 S.E.2d 168, 170 (Ga. 1950) (“Indeed, even judicial or other officers who are empowered to admit persons accused of crime to bail[] have no right, in the absence of express statutory authority, to accept a deposit of money in lieu of bail or as a substitute for a recognizance, and the release upon the making of such a deposit, of a person held in custody under a criminal charge is illegal.”) (citation omitted); Cooper v. Rivers, 48 So. 1024, 1025 (Miss. 1909) (noting no law authorizing sheriff to take money as a deposit in lieu of bail); Snyder v. Gross, 95 N.W. 636, 637 (Neb. 1903) (“[A] deposit of money instead of the usual bail was not authorized.”). Compare Ga. Code Ann. § 27–418 (1933), with Ga. Code Ann. § 17–6–4(a) (1982). Compare Dufek v. Harrison Cty., 289 S.W. 741, 742 (Tex. App. 1926) (noting cash bail not authorized), with Smith v. Decker, 312 S.W.2d 632, 634 (Tex. 1958) (noting option to deposit cash in 1957 Act).
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professional bail bonding, including bondsmen’s failure to pay on forfeited bonds. Arthur L. Beeley, The Bail System in Chicago 39–44 (1927). Criticism of reliance on monetary bail, of which commercial bail bonding was a key feature, continued through the 1950s. By that time scholars had criticized the monetary bail system as discriminatory, arbitrary, and ill-suited to ensuring a defendant’s appearance in court. See Wayne H. Thomas, Jr., Bail Reform in America 14–15 (1976). Ultimately, these concerns motivated federal and state governments to reform their bail laws to deprioritize monetary bail (including corporate surety bonds) under nonmonetary conditions of release. See Bail Reform Act of 1966, Pub. L. No. 89–465, § 2, 80 Stat. 214 (1966); see also S. Rep. 98–225, at 5 n.7 (1983); Thomas at 181.
Historical practice informs whether the option to post cash or obtain a corporate surety bond for bail is fundamental. Cf. Medina v. California, 505 U.S. 437, 446 (1992). The “settled tradition” of cash bail we see in our nation’s history is that it is only available as an alternative to obtaining a personal surety when a statute so permits, and, in the absence of statutory permission, it is generally unavailable. Id. Additionally, we see no historical basis for a right to obtain a corporate surety bond, as this relatively modern practice was quickly limited by reform. Nor have we found any historical authority supporting an option to deposit money or obtain a corporate surety bond in lieu of the release conditions to which Holland agreed, namely, home detention and electronic monitoring. In sum, to the extent Holland contends there is a history of a “right to bail,” that right does not require cash bail or a corporate surety bond to be available as an alternative equal to other release conditions.
As we discern no historical basis for concluding substantive due process requires criminal defendants to have the option to post cash or obtain a corporate surety bond to
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ensure their future appearance in court, id. at 448, we turn to whether either practice is “implicit in the concept of ordered liberty.” Lutz, 899 F.2d at 267 (citation omitted). Holland contends bail is fundamental to our scheme of ordered liberty because it ensures freedom before conviction for presumptively innocent defendants who pose little flight risk and no danger, and it enables them to prepare a more complete defense. To be sure, “bail constitutes a fundament of liberty underpinning our criminal proceedings,” Sistrunk, 646 F.2d at 70, but we cannot say the same of Holland’s requested forms of monetary bail.
Reliance on monetary bail, including cash bail and corporate surety bond, through the middle of the Twentieth Century came at a cost: criminal defendants who were unable to post or pay even modest sums to secure their release were kept in jail.
The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.
Stack, 342 U.S. at 7–8 (Jackson, J., concurring). Monetary bail often deprived presumptively innocent defendants of their pretrial liberty, a result that surely cannot be fundamental to preserving ordered liberty.
As a result, we hold cash bail and corporate surety bond are not protected by substantive due process because they are neither sufficiently rooted historically nor implicit in the concept of ordered liberty. Hence the Reform Act’s subordination of monetary bail to non-monetary conditions of
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release need only be rationally related to a legitimate State interest. And it is—New Jersey’s interests in ensuring defendants appear in court, do not endanger the safety of any person or the community, or obstruct their criminal process, are no doubt legitimate. See Salerno, 481 U.S. at 750–51; Bell, 441 U.S. at 523; Steele, 855 F.3d at 502; Perry, 788 F.2d at 113. The State’s shift away from monetary bail as a primary option was designed to serve those interests: it found the reliance on monetary bail resulted in the release of defendants who had the means to pay regardless of their flight risk or danger, and the pretrial detention of poorer defendants even if they were accused of less serious crimes and posed little risk. JCCJ Report at 1–2. Reliance on non-monetary conditions of release instead of monetary bail thus allows the State to release low-risk defendants, who may be unable to afford to post cash or pay a bondsman, while addressing riskier defendants’ potential to flee, endanger the community or another person, or interfere with the judicial process that decrees their guilt or innocence.15
2. Procedural Due Process
Pretrial release and detention decisions implicate a liberty interest—conditional pretrial liberty—that is entitled
15 Though we do not apply strict scrutiny, it would appear that New Jersey’s reliance on non-monetary release conditions is more narrowly tailored than the system in place before the Reform Act. Holland’s argument to the contrary—that monetary bail is less restrictive of liberty than non-monetary bail—is belied by the early statistics on the Act. In its first year, New Jersey’s pretrial jail population was reduced by 20%, whereas the non-monetary conditions to which Holland agreed were ordered for only 8.3% of eligible defendants.
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to procedural due process protections. See United States v. Delker, 757 F.2d 1390, 1397 (3d Cir. 1985). But “not every potential loss of liberty requires the full panoply of procedural guarantees available at a criminal trial.” Id. “[D]ue process is flexible and calls for such procedural protection as the particular situation demands.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)) (quotation marks omitted).
Procedural due process requires us to balance three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
The State asserts Holland waived any procedural due process argument because he opted out of the pretrial detention hearing that was available to him. To be sure, “[i]n order to state a claim for failure to provide due process, a plaintiff must have taken advantage of the processes that are available to him or her, unless those processes are unavailable or patently inadequate.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). That did not happen because Holland chose to forgo his right to the available hearing. But, for the sake of completeness, we nonetheless address his process contentions.
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Holland argues the Reform Act violates procedural due process because it enables the State court to impose on criminal defendants home detention and electronic monitoring without having the option to impose monetary bail together with or in place of these non-monetary conditions. We do not decide whether non-monetary conditions such as home detention and/or electronic monitoring restrict criminal defendants’ pretrial liberty. Even assuming these conditions would satisfy the first balancing factor, the other two factors do not point to a violation of Holland’s right to procedural due process.
We evaluate the deprivation risk to Holland’s pretrial liberty interest by considering “the fairness and reliability of the existing . . . procedures[] and the probable value, if any, of additional procedural safeguards.” Mathews, 424 U.S. at 343. Due to the prosecutor’s pretrial detention motion, Holland had access to a pretrial detention hearing to determine whether he would be detained pretrial and, if not, what conditions of release would be imposed on him. The questions Holland poses are, first, whether the procedural protections supplied to him in this hearing were adequate given the Reform Act’s restrictions on a State court’s ability to set monetary bail, and, second, whether procedural due process requires the court to consider monetary bail in line with non-monetary conditions.
We briefly restate the Reform Act’s existing procedures that applied to Holland had he taken advantage of them. Before the prosecutor brought a pretrial detention motion, Pretrial Services prepared a Public Safety Assessment and recommendation for release conditions that flagged him as a risk to commit new violent criminal activity. It recommended that he be detained pretrial. Following Pretrial Services’ recommendation, the prosecutor moved for pretrial detention; hence Holland was entitled under the
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Reform Act to a pretrial detention hearing. At the hearing he had the right to counsel or to have counsel appointed, the opportunity to testify, present witnesses, cross-examine witnesses, and present information. N.J. Stat. Ann. § 2A:162– 19(e)(1). He was also able to subpoena and call the State’s witnesses. ACLU Pretrial Justice Manual at 42. Further, rules concerning the admissibility of evidence in criminal trials did not apply to this hearing, N.J. Stat. Ann. § 2A:162–19(e)(1), and Holland was entitled to receive significant discovery, including all exculpatory evidence, a copy of the charging documents, all statements and reports that relate to the affidavit of probable cause, plus any additional evidence the prosecutor relied on at the detention hearing to establish probable cause and to support any Public Safety Assessment. N.J. Ct. R. 3:4–2(c)(1); see also Robinson, 160 A.3d at 19.
The court could then take into account various factors to determine whether any monetary or non-monetary release conditions, or combination of conditions, would reasonably assure not only Holland’s presence at trial but also the other goals of the Act. These factors include: the nature and circumstances of the offense charged; the weight of the evidence against Holland and the admissibility of any evidence sought to be excluded; his history and characteristics; the nature and seriousness of his dangerousness on pretrial release; and Pretrial Services’ recommendation of release or detention. N.J. Stat. Ann. § 2A:162–20. If the court then decided against pretrial detention, it could have imposed only the least restrictive non-monetary condition or combination of conditions that would reasonably assure Holland’s presence at trial and the safety of the community and other persons, provided release on personal recognizance or an unsecured appearance bond would not reasonably assure those goals. Id. §§ 2A:162– 16(b)(2), 2A:162–17(a)–(b). Monetary bail, other than unsecured appearance bond, was an option only if non-
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monetary bail was found inadequate. Id. §§ 2A:162– 16(b)(2)(c), 2A:162–17(c)(1), (d)(1), 2A:162–18(a)(2).
The Reform Act’s applicable procedures mirror those in the federal Bail Reform Act of 1984. In response to a facial challenge that the federal Bail Act failed to satisfy procedural due process before criminal defendants may be detained pretrial, the Supreme Court reviewed the Act’s procedures and held the “extensive safeguards suffice to repel a facial challenge.” Salerno, 481 U.S. at 752. It noted the Bail Act’s protections were “more exacting than those . . . found sufficient in the juvenile context, . . . and they far exceed[ed] what [the Court] found necessary to effect limited post[]arrest detention . . . .” Id. (citing Schall v. Martin, 467 U.S. 253, 275–81 (1984); Gerstein, 420 U.S. 103).
Salerno informs our view that the risk of erroneously depriving Holland’s pretrial liberty is low under the New Jersey Reform Act’s procedures given its subordination of monetary bail. All of the procedures the Court held were “extensive safeguards” under the federal Act are included in the New Jersey Act’s pretrial detention hearing. And the New Jersey Act adds the additional protection of extensive discovery.16 Beyond these extensive safeguards, the Reform Act allows only the least restrictive non-monetary condition, or combination of conditions, reasonably assuring the Act’s goals. Considering all the protections available to Holland under the Reform Act, the risk of erroneous deprivation of his
16 Though Holland argues on appeal that procedural due process requires a heightened showing before a State court may order home detention and electronic monitoring, as required for pretrial detention, he did not raise this argument in the District Court, and thus it is not properly before us. See Hormel, 312 U.S. at 556.
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pretrial liberty—ostensibly through the imposition of home detention and electronic monitoring—is low even if the court were unable to consider monetary bail.
The probable value of requiring the court to consider monetary bail in line with home detention and electronic monitoring is also low. Holland contends that monetary bail preserves liberty, whereas home detention and electronic monitoring encumber it. Thus, the argument goes, giving the court the option to release criminal defendants on monetary bail in lieu of home detention and electronic monitoring would necessarily reduce the risk of an erroneous deprivation. His counsel also suggested during oral argument that the court should set monetary bail to account for any flight risk but still have the option to set restrictive non-monetary conditions to account for potential danger. Or. Arg. Tr. at 27.
The first argument is refuted by the actual effect of the Reform Act; the second is hypothetical. New Jersey decided to shift from its prior monetary bail system because it resulted in more criminal defendants being detained in jail pretrial, and “civil detention . . . results in the deprivation of the most fundamental of all personal liberties.” Perry, 788 F.2d at 113. As noted above, in the year since the Act took effect New Jersey’s pretrial jail population was reduced significantly while home detention and/or electronic monitoring was ordered for few eligible defendants. CJR Report 2017, at 4; see Initial Release Decisions 2017. Monetary bail, as it existed in New Jersey prior to the Reform Act, resulted in more restrictions of criminal defendants’ pretrial liberty, not fewer. Additionally, the notion the court should set monetary bail to account for Holland’s flight risk, while also having the ability to set restrictive non-monetary conditions to account for his danger to others, would result in more than the nonmonetary bail conditions Holland accepted. Perhaps what he proposes is that using monetary bail to mitigate flight would
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reduce the restrictiveness of the non-monetary conditions the court sets, thus reducing the risk of erroneous deprivation of liberty. If so, he provides no support for this hypothetical outcome.
The final Mathews factor, the State’s interest, also indicates the Reform Act’s procedures, which subordinate monetary bail to non-monetary conditions of release, do not violate procedural due process. This factor includes the public interest, “the administrative burden and other societal costs that would be associated with [the additional] requir[ement]” along with financial costs to the State. Mathews, 424 U.S. at 347. The Reform Act’s goals include not only the reasonable assurance of eligible defendants’ appearance at trial, but also the safety of the community and other persons, and the integrity of the criminal justice process. Holland does not contest that monetary bail fails to address his risk of danger. Thus the State’s strong and legitimate interest is not served by placing consideration of monetary bail in line with conditions designed to mitigate danger to other persons and the community. Moreover, the public interest also includes, broadly, pretrial liberty. As explained above, studies have revealed reliance on monetary bail results in greater encumbrance of pretrial liberty, as many pretrial detainees are kept in custody because of their inability to post even modest monetary bail. And the Reform Act has thus far been effective in reducing the pretrial detention population. Even if home detention and electronic monitoring may be considered restrictions on pretrial liberty, they may only be imposed if they are the least restrictive conditions that reasonably assure the Reform Act’s goals. Also of marginal note is the administrative burden of imposing an additional procedural requirement. The State posits that the burden of requiring the court to consider monetary bail in line with non-monetary conditions would include retraining court personnel, prosecutors, public defenders, and private defense attorneys,
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and promulgating one or more new court rules, which would be financially and human-resource intensive. In any event, the State’s interest weighs against finding a violation of procedural due process.
Though we reach no holding on whether home detention and electronic monitoring impinge Holland’s pretrial liberty, we assume they do. Even so, we hold the lower priority of monetary bail to non-monetary bail conditions does not make constitutionally inadequate the extensive safeguards available to Holland under the Reform Act. Those procedures—together with the low probable value of requiring the court to consider monetary bail alongside home detention and electronic monitoring, and the State’s interest—indicate the subordination of monetary bail does not violate procedural due process, especially when Holland retains the option of seeking a modification of his bail conditions should circumstances change.
* * * * *
In sum, we hold the Reform Act’s subordination of monetary bail to non-monetary bail conditions does not violate either component of the Due Process Clause. Substantive due process does not provide a right to monetary bail. It is neither historically rooted to the time of our Bill of Rights nor implicit in the concept of ordered liberty, and the Reform Act’s subordination of it to non-monetary release conditions is rationally related to the State’s legitimate interests in assuring defendants appear at trial, the safety of the community and other persons, and the integrity of the criminal justice process. As for procedural due process, the extensive safeguards provided by the Reform Act are not made inadequate by its subordination of monetary bail. Moreover, Holland still may move the State court to modify his bail based on a change of circumstances, wherein he may
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be able to argue he no longer presents a danger and thus the conditions of release imposed on him should be less restrictive. See N.J. Ct. R. 3:26–2(c)(2).
C. Fourth Amendment
Unlike his Eighth Amendment and Due Process arguments, Holland does not argue the Fourth Amendment provides a right to monetary bail. Rather, he asserts the Reform Act violates the Fourth Amendment’s prohibition of “unreasonable searches and seizures” because the conditions to which he agreed, i.e., home detention and electronic monitoring, are “unreasonable” inasmuch as they involve significant intrusions on his privacy and are not needed to promote the State’s legitimate interest when monetary bail would serve the same interest less intrusively.17
The Fourth Amendment provides, in relevant part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. It is binding on the states by the Fourteenth Amendment. Maryland v. King, 569 U.S. 435, 446 (2013). But not all
17 Holland cursorily contends his release conditions were not based on reasonable suspicion or probable cause that he will commit a crime, but makes no argument to support this claim. Thus we do not address it on appeal. See Free Speech Coalition, Inc. v. Att’y Gen., 677 F.3d 519, 545 (3d Cir. 2012). We also refrain from considering his argument that the State’s interest in home detention and electronic monitoring is unreasonable absent a heightened showing of dangerousness because it was not raised to the District Court. Hormel, 312 U.S. at 556.
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searches and seizures run afoul of it. “The touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250 (1991). To determine whether a seizure is reasonable, we examine the totality of circumstances and balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Schneyder v. Smith, 653 F.3d 313, 325 (3d Cir. 2011) (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985) (internal citation omitted)). Likewise, to assess whether a search is reasonable, we balance “the degree to which [it] intrudes upon an individual’s privacy and, on the other hand, the degree to which [it] is needed for the promotion of legitimate governmental interests.” United States v. Sczubelek, 402 F.3d 175, 182 (3d Cir. 2005) (quoting United States v. Knights, 534 U.S. 112, 119 (2001)).
We do not accept as given that placing an electronic monitor on an individual and then tracking his whereabouts always constitute a search and seizure, and that home detention is a seizure. In Grady v. North Carolina, 135 S. Ct. 1368 (2015), the Supreme Court held that “a State . . . conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” Id. at 1370 (emphasis added). Holland does not challenge on appeal the District Court’s finding that he consented to the conditions imposed on him. We are aware of no binding authority that holds consented-to tracking and consented-to home detention are a search and a seizure.
Even assuming they are, we cannot estimate the extent to which they intrude on Holland’s privacy. Holland alleges the ankle bracelet he wears for monitoring purposes requires him to stay near a power outlet for several hours a day while the device charges, precludes him from traveling on a
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commercial airplane, and discloses “a massive amount of private information about [his] life to the state.” Appellants’ Br. at 50. But the District Court did not find any facts that support an intrusion on privacy; rather, it assumed these practices are intrusive. We too assume without deciding they are at least somewhat intrusive.
That intrusiveness, however, is lessened by Holland’s reduced expectation of privacy. “Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, . . . his or her expectations of privacy and freedom from police scrutiny are reduced.” King, 569 U.S. at 463. Holland does not challenge that he was arrested on probable cause for a dangerous offense, and thus we consider his expectation of privacy to be reduced.
Against Holland’s reduced privacy interest we balance the State’s interest. The Supreme Court has held “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials” and a “legitimate and compelling” interest in preventing crime by arrestees. Id. at 452–53 (citations omitted). These mirror the goals espoused by the State in the Reform Act, and Holland does not challenge the legitimacy of them. Rather, he argues the conditions are not reasonable because monetary bail could serve the same legitimate interests in a less intrusive manner. We repeat the State found monetary bail did not adequately address flight risk and could not, by its nature, address risk of danger.
In any event, Holland’s argument fails as a matter of law because the Supreme Court “has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means . . . .” Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawotomie Cty. v. Earls, 536 U.S. 822, 837 (2002); see also Illinois v. Lafayette, 462 U.S.
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640, 647 (1983). The existence of a less intrusive means does not itself render a search or seizure unreasonable. Whether the conditions to which Holland agreed are in themselves unreasonable, regardless of the availability or unavailability of monetary bail, is beyond the scope of our inquiry and in any event can be revisited if circumstances change.
We hold Holland is unlikely to succeed on the merits of his argument that the Reform Act violates the Fourth Amendment because monetary bail could serve the same legitimate government interest in a less intrusive manner than the conditions to which he agreed. The Supreme Court has repeatedly disavowed a “less intrusive means” standard for determinations of reasonableness under the Fourth Amendment, see Lafayette, 462 U.S. at 647, and we will not adopt one here.
V. Conclusion
Holland has standing to bring his claims that the Reform Act violates the Eighth, Fourteenth, and Fourth Amendments of the United States Constitution, but Lexington does not. He has not, however, made a threshold showing of the first two factors required to prevail on a motion for a preliminary injunction. He has not demonstrated a sufficient likelihood of success on the merits of his argument that the Reform Act violates a constitutional right to cash bail or corporate surety bonds. We find no right to these forms of monetary bail in the Eighth Amendment’s proscription of excessive bail nor in the Fourteenth Amendment’s substantive and procedural due process components. We also reject Holland’s “less intrusive means” theory of a Fourth Amendment violation, and so we hold he has not made a sufficient showing of a violation of that constitutional amendment. Without a constitutional right violated, and with reconsideration of current release conditions an option if
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Case: 17-3104 Document: 003112976048 Page: 52 Date Filed: 07/09/2018 circumstances suggest and a request made, irreparable harm does not exist. Thus we affirm the District Court’s denial of Holland’s motion for a preliminary injunction.
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