TRIBUNE EXCLUSIVE: Federal judge issues preliminary injunction in Cullman County indigent bond cases

Wendy Sack for The Cullman Tribune

The Cullman County Detention Center (Wendy Sack for The Cullman Tribune)

BIRMINGHAM – On Tuesday, Sept. 4, U.S. Federal District Judge Madeline Hughes Haikala issued a memorandum opinion and order granting a preliminary injunction on behalf of indigent defendants incarcerated in the Cullman County Detention Center who cannot afford the bail amounts assigned to them by the Cullman County Sheriff’s Office (CCSO) or county judges.  According to a copy of the order reviewed by The Tribune, the injunction will temporarily prohibit “the Cullman County Sheriff from detaining indigent defendants who cannot afford to post a property bond or a surety bond as a condition of pretrial release,” while a civil rights case filed by Bradley Dewayne Hester against Sheriff Matt Gentry, Cullman Circuit Clerk Lisa McSwain, Cullman County District Court Magistrates Amy Black and John White and Cullman County District Judges Kim Chaney and Rusty Turner proceeds.

Hester was arrested on July 27, 2017 for misdemeanor possession of drug paraphernalia.  He was assigned a $1,000 bond but claimed indigent status and inability to pay. Still in jail several days later, he filed the above-mentioned complaint that could allow him to join in an existing class action filed in March 2017 against Gentry, the State of Alabama and the 32nd Judicial Circuit  (See, with the support of a battery of attorneys:

  • Samuel Brooke and Micah West of the Southern Poverty Law Center in Montgomery
  • Alec Karakatsanis and Katherine Hubbard of the Civil Rights Corps in Washington, DC
  • Brandon Buskey and Andrea Woods of the American Civil Liberties Union (ACLU) Foundation Criminal Law Reform Project in New York
  • Randall C. Marshall and Brock Boone of the ACLU Foundation of Alabama, Inc. in Montgomery

Background (from Judge Haikala’s memorandum/order):

Mr. Hester filed his intervenor complaint against Cullman County Sheriff Matt Gentry, Circuit Clerk Lisa McSwain, Magistrate Amy Black, Magistrate Joan White, District Court Judge Kim Chaney, and District Court Judge Wells R. Turner III.

In his first claim for relief, citing the Fourteenth Amendment, Mr. Hester alleges that the defendants violate the “fundamental rights” of indigent criminal defendants arrested in Cullman County “by enforcing against them a post-arrest system of wealth-based detention” pursuant to which indigent defendants “are kept in jail because they cannot afford a monetary amount of bail.”

In his second claim for relief, Mr. Hester alleges that the defendants do not provide counsel for bail hearings, give arrestees an adequate opportunity to testify or present evidence at bail hearings, apply a uniform evidentiary standard to determine whether a person should be detained prior to trial, or “require a [judicial] finding that no affordable financial or non-financial condition of release will ensure appearance or public safety before jailing pretrial arrestees on monetary bail amounts that they cannot afford.

Mr. Hester asserts that the defendants create de facto detention orders that apply to only indigent criminal defendants in Cullman County.

Mr. Hester seeks declaratory relief from the judicial defendants — Circuit Clerk McSwain, Magistrate Black, Magistrate White, Judge Chaney, and Judge Turner and injunctive relief from Sheriff Gentry.

Judge Haikala’s memorandum/order began:

Bradley Hester was arrested and jailed in Cullman County. He was, and others similarly situated are, detained in the Cullman County jail following arrest because they cannot afford to post a surety bond or a property bond as a condition of pretrial release. Mr. Hester asks the Court to preliminarily enjoin the Cullman County Sheriff from detaining indigent defendants who cannot afford to post a property bond or a surety bond as a condition of pretrial release. Mr. Hester argues that Cullman County’s procedures for setting a secured bond as a condition of pretrial release are constitutionally flawed, and he argues that the way in which Cullman County implements those procedures is inequitable.

Later in the order, Haikala continued:

Under Alabama law, absent a capital murder charge, arrestees have a statutory right to bail. In Cullman County, bail initially is set as a condition of pretrial release for every arrestee. The staff of Cullman County’s Sheriff’s Office selects the initial bail amount for individuals jailed for warrantless probable cause arrests; magistrates select the initial bail amount in arrest warrants. Because most of the arrests in Cullman County are warrantless arrests, the Sheriff’s Office sets most of the initial bail amounts in the county. Both the sheriff and the magistrates use a bail schedule to determine the bail amount. On an average day, there are ten arrests in Cullman County, and six of those arrestees are immediately bail eligible.

In a two-part series in 2017, The Cullman Tribune explained how the Cullman County Sheriff’s Office, magistrates and judges use a bond schedule established by the State to determine bail amounts.  See more at and

Haikala’s order acknowledged, “Sheriff Gentry testified that he has two primary interests in the pretrial process: getting defendants to appear for court proceedings and ensuring the safety of the community. Those interests are consistent with Alabama law.”

On March 26, 2018, Cullman’s circuit and district judges modified their bail policies.  Prior to that time, according to the order:

Cullman County magistrates conducted initial appearances for arrestees who could not afford to post bond. The initial appearance was conducted by video conference, and the state did not offer counsel for the appearance. At the initial appearances, the magistrates informed the arrestees of their bail amount but did not evaluate the bail amount to determine whether the bail amount exceeded the amount necessary to satisfy the statutory purposes of bail. Arrestees who could not afford to post a secured bond had to remain in jail and file a motion to reconsider their bail amount. Typically, a district judge would not consider such a motion until several weeks after arrest.

Even after revisions made in March, including cutting the standard bail amount for some drug offenses in half (See, Haikala’s order claims, “. . . officials in Cullman County do not always comply with the written requirements in the new Standing Order” and “although the Cullman County Circuit Court has revised its written criminal pretrial procedures, the record demonstrates that the defendants (Sheriff Matt Gentry, Cullman Circuit Clerk Lisa McSwain, Cullman County District Court Magistrates Amy Black and John White and Cullman County District Judges Kim Chaney and Rusty Turner) do not fully comply with the new written procedures. And even if the defendants did comply, as discussed in greater detail below, the new procedures, though an improvement over the old, still are constitutionally deficient.”

As explained in the order, to receive a preliminary injunction, the plaintiff (Hester in this case) must show:

  • a substantial likelihood of success in the larger case
  • that the plaintiff (in this class action case, all Cullman County arrestees who are held due to inability to post bond) will suffer irreparable injury unless the injunction is issued
  • that the threatened injury to the plaintiff outweighs possible harm that the injunction may cause the opposing party
  • that the injunction would serve and not disserve the public interest

Haikala then stated, “Mr. Hester has satisfied all four elements.”

An explanation of the satisfaction of the four elements took up much space in the 64-page order (which can be found at  A few representative statements follow here.

Likelihood of success

As to the first element, according to the order, “Mr. Hester contends that Cullman County’s bail system cannot withstand constitutional scrutiny because it creates one standard of pretrial release for wealthy defendants and another for indigent defendants. The Court agrees.”

Injury to indigent arrestees

As to the second element, the order stated that “The Supreme Court has recognized that the ‘time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness.’ Barker v. Wingo, 407 U.S. 514, 532 (1972). Imprisonment hinders a defendant’s ability to prepare her defense, forces her to live ‘under a cloud of anxiety, suspicion, and often hostility,’ and is ‘simply dead time’ that the defendant can never get back. Id. at 532-33. The evidence in this case is consistent with the Supreme Court’s observations in Barker. Mr. Hester’s evidence demonstrates that pretrial detention for three days or less negatively influences a person’s employment, financial circumstances, housing, and the wellbeing of dependent family members. These detrimental impacts are exacerbated when pretrial incarceration exceeds three days.”

Injury to the sheriff and other officials

Haikala wrote, “The threatened harms to the putative class outweigh the harms the preliminary injunction may cause to the defendants. The defendants argue that no alternative systems are workable in Cullman County. The defendants contend that detaining every arrestee until an initial appearance would put considerable strain on the county’s resources. Judge Turner stated that the circuit court’s resources already are taxed to handle the 72-hour initial appearances, the county has no government-funded pretrial services staff, and the county needs one more judge just to keep up with the circuit court’s current case load. According to Sheriff Gentry, funding for the sheriff’s department has not increased since 2009.  

“But alternative pretrial detention policies are cost effective. Three options are readily available to Cullman County at little or no cost. First, Cullman County could release all defendants on unsecured bond. In a case in which a defendant may pose a significant flight risk or a danger to the community, a judge could hold an initial hearing within 48 hours of arrest and, if necessary based on the evidence collected at the hearing, impose additional conditions for release such as a court-appointed third-party custodian or a requirement that the defendant periodically call one of the sheriff’s court liaisons. The defendants acknowledge that an unsecured bail schedule would serve their interests.”

The order acknowledged that “The Sheriff’s Office would detain all high-risk arrestees, wealthy and indigent alike, for an initial appearance at which a judge would assess the necessary conditions for pretrial release.”

Serving the public interest

According to the order, “A preliminary injunction would prevent continuing deprivation of core constitutional rights by prohibiting detention based solely on predetermined secured money bail amounts without sufficient substantive findings and adequate procedural protections. It would not impair the efficacy of the justice system or endanger the public. Therefore, a preliminary injunction would not disserve the public interest.”

In her conclusion, Haikala wrote, “For the reasons stated above, Mr. Hester has demonstrated that he is entitled to a preliminary injunction consistent with the analysis in this opinion. The Court will set a telephone conference to discuss the terms of a preliminary injunction.”

The Civil Rights Corps, one of the organizations representing Hester, has posted Hester’s original complaint and Haikala’s memorandum/order online.  Hester’s complaint can be viewed at  Haikala’s order can be viewed at

Cullman County 2018-09-04 #159 Memorandum Opinion and Order by TheCullmanTribune on Scribd

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