ABSTAINING FROM ABSTENTION: WHY YOUNGER ABSTENTION DOES NOT APPLY IN 42 U.S.C [section] 1983 BAIL LITIGATION.

• Author: Rauf, Alezeh

INTRODUCTION 536 I. THE DOCTRINAL BACKGROUND OF YOUNGER ABSTENTION 541 II. RECONCILING GERSTEIN V. PUGH AND O'SHEA V. LITTLETON 545 III. YOUNGER ABSTENTION IS INAPPLICABLE IN [section] 1983 BAIL LITIGATION WHERE THE REQUESTED RELIEF IS NARROWLY TAILORED 549 A. Bail Litigation Does Not Implicate Pending Criminal Prosecutions 550 B. Bail Litigants Do Not Have an Adequate Opportunity to be Heard in State Court 552 C. Where the Requested Relief Preserves Some State Court Discretion, Younger Abstention Is Inapplicable 555 IV. AN EMPIRICAL ANALYSIS OF [section] 1983 BAIL LITIGATION POST- 2012 558 V. BALANCING PHILOSOPHICAL AND EQUITABLE ARGUMENTS FOR AND AGAINST YOUNGER ABSTENTION IN [section] 1983 BAIL LITIGATION 562 CONCLUSION 566 INTRODUCTION

Advocates of bail reform argue that the cash bail system has morphea into a wealth-based incarceration scheme. (1) Cash bail is meant to ensure that defendants appear in court for their trials. (2) Judges set an amount of money a defendant must pay to secure their release from pretrial detention, and the money is returned only after the defendant makes all the necessary court appearances. (3) Otherwise, it is forfeited to the government. (4) In many jurisdictions, when a person is arrested, bail is assigned through a "bail schedule" that has nothing to do with individualized circumstances. (5) Defendants who are unable to pay bail are detained pretrial, many for weeks or months. (6)

Between 1970 and 2015, the pretrial detention population increased 433%. (7) In 2019, pretrial detainees made up over 22% of the total incarcerated population in the U.S. (8) Of these pretrial detainees, over 60% were detained due to an inability to afford bail. (9) Those held pretrial are more likely to receive prison sentences or plead guilty, and may lose jobs, finances, housing, healthcare, and more. (10) Additionally, the odds of being detained pretrial are twice as high for Latinx defendants than white defendants and 87% higher for black defendants than white defendants. (11) In this way, cash bail criminalizes poor and minority populations, and contributes to cycles of poverty and racial oppression.

The current bail reform movement is built off of the prior two waves of reform that occurred in the 1960s and 1980s. (12) The first wave occurred in the 1960s, promoting consideration of individual circumstances and pretrial factfinding to ensure fairness in bail determinations and that judges were using bail as a means to ensure court appearances rather than to punish. (13) This wave resulted in the federal Bail Reform Act of 1966 that provided, "all persons, regardless of their financial status, shall not needlessly be detained" and set specific factors to determine bail, such as neighborhood of residence, financial, housing, and employment status. (14) Subsequently, the rates of pretrial release in federal jurisdictions increased through the 1970s. (15)

However, societal perceptions of "dangerous" pretrial defendants and the "tough-on-crime" era reversed much of the first wave progress. (16) Many states implemented laws that allowed for consideration of a defendant's "dangerousness" in bail decisions, rather than simply the likelihood of appearance in court. (17) The Bail Reform Act of 1984 expanded the categories of individuals who could be detained pretrial, and states began adopting aggressive policies towards the utilization of pretrial detention under the guise of public safety. (18) After the Act, the likelihood of being held pretrial was 21% higher for persons charged with violent offenses involving firearms and 26% higher for persons charged with drug offenses. (19) The second wave of bail reform was thus deemed unsuccessful by advocates. (20)

Today, we are in the third wave of bail reform. (21) Advocates have been pursuing bail reform through several avenues: storytelling regarding the disproportionate and excessive harms bail imposes on poor people, legislative lobbying, data collection, and litigation in both federal and state courts. (22) On the legislative level, there were over 200 bail reform bills pending across states in 2021. (23) Additionally, advocacy organizations have been assisting state judges in overhauling their bail systems by providing research and data surrounding pretrial release and detention schemes. (24) Even judges themselves have been involved in reform. For example, state judges in New Jersey and California have created committees to study bail in anticipation of future reform, and judges in Colorado, Delaware, and Missouri have individually pushed for bail reform. (25) Finally, litigators have been filing individual and class action 42 U.S.C. [section] 1983 civil rights claims in federal court. (26)

Recent [section] 1983 bail cases have resulted in widespread reform. (27) For example, litigation in Harris County, Texas resulted in an injunction requiring hearings to determine the defendants' ability to pay prior to imposing bail and funding to provide representation to all misdemeanor arrestees at their bail hearings, among other reforms. (28) Additionally, after litigants filed a complaint challenging the money bail system in Chicago's Cook County, the Chief Judge of the Cook County Circuit Court issued a standing order prohibiting judges from setting bail at amounts defendants could not pay. (29) As a result, the Cook County jail has "now reached its lowest daily jail population in recorded history." (30) And finally, the City of Atlanta ended money bail for nonviolent misdemeanor offenses, citing the threat of litigation stemming from a letter sent by Civil Rights Corps and the Southern Center for Human Rights. (31)

While there have been many notable successes, a major procedural barrier has arisen in almost every recent case: Younger abstention. In a [section] 1983 action, even though a federal court has subject matter jurisdiction, a court may decline to exercise that jurisdiction, relying on one or more judge-made abstention doctrines. (32) Under an abstention doctrine, judges decline to exercise jurisdiction in cases or controversies which they would otherwise be authorized to adjudicate under Article III and Congress's delegation of power. (33) Younger abstention, specifically, instructs courts to refrain from hearing cases that might interfere with ongoing criminal proceedings. (34)

The forum of litigation can be as outcome-determinative as the underlying merits of the case. (35) When federal courts decline to exercise their jurisdiction to hear these cases, plaintiffs are forced into state courts, where their federal claims are far less likely to be successful. (36) Therefore, the stakes for keeping [section] 1983 bail litigation in federal courts are high. So, the inquiry for litigants and judges alike is: can federal courts intervene in a state bail system and grant widespread relief?

This comment argues that Younger abstention should not apply in [section] 1983 civil rights bail litigation where the relief requested is tailored to avoid interference with pending prosecutions and does not foreclose state court discretion. Federal courts apply Younger abstention when an active state prosecution that implicates important state interests, and when the state criminal proceeding provides an adequate means to address the federal constitutional concerns. In instances where plaintiffs are challenging a state bail system, these Younger concerns are not present for several reasons. First, bail hearings are not part of active criminal prosecutions and should not be treated as such. (37) Second, even if a court finds that there is an active prosecution, there is no adequate state remedy available that would be timely or responsive enough to address the specific harms of pretrial detention. Therefore, there is no need to apply Younger abstention in bail litigation where the requested relief does not interfere with a pending prosecution. This means federal courts can properly hear [section] 1983 bail litigation and grant widespread relief regarding bail systems.

Part I of this comment examines the Younger abstention doctrine and its exceptions. Part II begins to assess Younger abstention as applied to bail litigation by reconciling O'Shea v. Littleton (38) and Gerstein v. Pugh, (39) and explaining that their different outcomes stem from the relief requested by the plaintiffs. This examination reveals that narrowly tailored bail reform claims should properly be heard in federal courts under Gerstein and without conflict from O'Shea. Part III argues that Younger abstention does not apply in [section] 1983 bail litigation where the requested relief is narrowly tailored because bail litigation (1) does not implicate ongoing criminal procedures and (2) there is no adequate state relief available. Part IV then empirically analyzes all [section] 1983 bail litigation since 2012, providing a resource for litigants bringing these claims. And, finally, Part V argues that philosophical and equitable arguments against Younger abstention in bail litigation outweigh those in favor of its application. Importantly, this comment does not argue that a Younger abstention exception applies, but that the doctrine cannot be applied at all. (40) This scholarship adds to the literature by surveying the application of Younger in all [section] 1983 bail litigation cases in the third wave of bail reform, and should be a tool for advocates to strategize challenging bail systems in the future.

1. THE DOCTRINAL BACKGROUND OF YOUNGER ABSTENTION

   The Younger abstention doctrine holds that a federal judge should decline to exercise jurisdiction where there is (1) an ongoing state judicial proceeding (2) that implicates important state interests, and (3) offers adequate opportunity to raise constitutional challenges. (41) In Younger, defendant Harris was indicted in California state court and charged under the state's Criminal Syndicalism Act. (42) He then filed a complaint in...