SARAH S. VANCE, District Judge.
Milton Faulkner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Faulkner was charged in state court with possession with intent to distribute cocaine and distribution of cocaine.
Generally, Louisiana state court judges may set either money or non-money bonds for defendants awaiting trial. La. C. Cr. P. Art. 312. Article 334.4, however, provides that "any defendant who has been arrested for any of the following crimes shall not be released by the court on the defendant's own recognizance or on the signature of any other person." La. C. Cr. P. Art. 334.4(A). The article lists eleven offenses, including "[t]he production, manufacturing, distribution, or dispensing or the possession with the intent to produce, manufacture, distribute or dispense a controlled dangerous substance."
Because Faulkner is charged with possession with intent to distribute cocaine and distribution of cocaine in violation of La. R.S. 40:967(B), the judge at Faulkner's bond hearing was prohibited from considering a recognizance or unsecured personal surety bond. The judge set Faulkner's bond at $30,000.
Faulkner filed a motion in the trial court to declare Article 334.4 unconstitutional.
Faulkner now petitions this Court for a writ of habeas corpus.
This Court has jurisdiction pursuant to 28 U.S.C. § 2241. See Martinez v. Caldwell, 644 F.3d 238, 242 (5th Cir. 2011) ("As a pretrial detainee . . . Martinez's habeas petition is governed by § 2241."). The State concedes that Faulkner's petition is timely and that he properly exhausted his claims in state court before filing his petition for habeas corpus.
Faulkner's petition is subject to de novo review in this Court. See Martinez, 644 F.3d at 242 ("[Section] 2254(d) deference never applies to habeas petitions brought by pretrial detainees under § 2241."). The question for decision is whether Faulkner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241.
Faulkner argues that Article 334.4 is unconstitutional on its face under both the Fourteenth Amendment's Due Process Clause and the Eighth Amendment's Excessive Bail Clause.
"Facial challenges are disfavored for several reasons." Id. at 450. First, "they raise the risk of `premature interpretation of statutes on the basis of factually barebones records.'" Id. (quoting Sabri v. United States, 541 U.S. 600, 609 (2004)). Second, they "run contrary to the fundamental principle of judicial restraint that courts should neither `anticipate a question of constitutional law in advance of the necessity of deciding it[,]' nor `formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" Id. (quoting Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)). "Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution." Id. at 451. It is with these principles in mind that the Court turns to the merits of Faulkner's facial challenge.
Faulkner's first argument is that Article 334.4 violates procedural due process.
"Procedural due process imposes constraints on governmental decisions which deprive individuals of `liberty' or `property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332 (1976). "We analyze procedural due process questions using a two-step inquiry: First, we determine whether the state has deprived a person of a liberty or property interest; if there has been such a deprivation, we must determine whether the procedures relative to that deprivation were constitutionally sufficient." Welch v. Thompson, 20 F.3d 636, 639 (5th Cir. 1994).
Because Faulkner challenges Article 334.4 on its face, his procedural challenge succeeds only if the Court finds that Article 334.4 is procedurally inadequate in all, or nearly all, of its applications, not as applied to a particular set of defendants.
The Court concludes that Faulkner's procedural due process claim fails, because Article 334.4 does not deprive defendants of a liberty interest under Mathews v. Eldridge. In the alternative, even if the Court were to assume that Article 334.4 implicates a defendant's liberty interest in pretrial release, the risk of erroneous deprivation of that interest is so low as to preclude the possibility of a procedural due process violation.
"The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Faulkner asserts that Article 334.4 implicates his liberty interest in obtaining release pending trial.
Further, Article 334.4 sets no minimum bond amount. When it applies, judges may not grant non-money bonds, but they are free to set very low, even nominal, money bonds. The record shows that the state court judge who heard Faulkner's motion to declare Article 334.4 unconstitutional recognized this feature of the statute, stating that "the DA's office is right in their argument that we can set the bond as low as we want. . . . [I can] give him a bond of . . . $1,000, $500 or . . . $10."
The Court finds that Article 334.4, viewed in the context of Louisiana's bail-setting procedure, does not deprive defendants of their interest in pretrial release, because it does not require judges to set bond in any amount that is likely to prevent defendants from obtaining pretrial release. Rather, it requires only that judges set bond in some amount above zero. Moreover, the Louisiana Code of Criminal Procedure directs judges to set the amount of bail "such that, in the judgment of the court . . . it will insure the presence of the defendant, as required, and the safety of any other person and the community." La. C. Cr. P. Art. 334. The Code of Criminal Procedure directs judges to consider ten factors in setting the amount of bail, including the seriousness of the offense charged, the weight of the evidence against the defendant, the defendant's previous criminal record, the defendant's ability to post bail, the danger the defendant poses to any other person or to the community, "[a]ny other circumstances affecting the probability of [the] defendant's appearance," and the type or form of bail. Id. A defendant charged with one of Article 334.4's enumerated offenses may argue that the statutory factors favor a low or nominal money bond in his case. If the judge agrees, she may set bond in an amount the defendant can satisfy, be it a hundred dollars or ten dollars or even ten cents. If the judge does not agree, and concludes that the defendant poses a flight risk or a danger to the community, then Article 334.4 is unlikely to have any effect, as the judge would likely set a money bond even in the absence of Article 334.4. For purposes of Faulkner's facial challenge, the Court must assume that judges will apply the statutorily mandated factors in good faith when setting bail for defendants charged with one of Article 334.4's enumerated offenses.
The deprivation Faulkner claims "is more theoretical than actual." Broussard v. Parish of Orleans, 318 F.3d 644, 651 (5th Cir. 2003). He has offered no hard evidence that any arrestee who would otherwise have been released on recognizance has ever been kept in jail because Article 334.4 obligated the judge to impose a money bond. See id. Although Faulkner apparently has been unable to satisfy the $30,000 bond imposed in this case, he offers no evidence sufficient to show that this bond is attributable to Article 334.4's money bond requirement, as opposed to other statutory factors the judge may have considered. The record indicates that the judge who set Faulkner's bond recognized, at the hearing on Faulkner's motion to declare Article 334.4 unconstitutional, that he could set bond at $1000, $500 or even $10 if he felt that it was warranted.
The Court finds that Article 334.4 does not mandate pretrial detention for any defendant and allows judges to set low or nominal money bonds as appropriate. Accordingly, the Court concludes that Article 334.4 does not deprive defendants of their interest in pretrial release such that it triggers procedural due process review under Mathews v. Eldridge.
Even if the Court accepts, for the sake of argument, that Article 334.4 implicates a defendant's liberty interest in pretrial release, it finds no procedural due process violation, because the risk of erroneous deprivation of that interest is exceedingly low. Under Mathews v. Eldridge, courts consider three factors in determining whether state procedures violate due process: "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, 424 U.S. at 335.
Here, the private interest arguably affected is "the interest in being free from physical detention by one's own government." Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004). There is no question that this is an important interest. See Salerno, 481 U.S. at 750. Nonetheless, the Court finds that "any deprivation attributable to [Article 334.4] is minimal, if not non-existent." Broussard, 318 F.3d at 655. As discussed in Part III.A., supra, Faulkner has not shown that he, or any other arrestee, has been detained because of inability to post a money bond attributable to Article 334.4. See id. Faulkner's $30,000 bond is far greater than what Article 334.4 requires, suggesting that the judge's bail determination turned not on Article 334.4's money bond requirement but rather on consideration of the factors enumerated in Article 334. Because the Court finds that any deprivation of liberty attributable to Article 334.4 is minimal, it concludes that Article 334.4 does "not trigger any heightened level of private interest." Id. The first Mathews factor weighs only slightly in favor of Faulkner.
Turning to the second Mathews factor, the Court finds that the risk of erroneous deprivation is exceedingly low. As discussed in Part III.A., supra, in all cases in which bail is available, Louisiana law directs judges to set the amount of bail "such that, in the judgment of the court . . . it will insure the presence of the defendant, as required, and the safety of any other person and the community." La. C. Cr. P. Art. 334. Judges are directed to consider ten factors in determining the amount of bail, including the defendant's ability to post bail, any circumstances affecting the probability of the defendant's appearance, and the type or form of bail. Id. When Article 334.4 applies, judges may not grant non-money bonds but are free to set very low, even nominal, money bonds as they see fit. Given these procedural protections, the Court concludes that the risk of erroneous deprivation of a defendant's interest in obtaining pretrial release is exceedingly low. In light of this statutory scheme, if a defendant charged with one of Article 334.4's enumerated offenses would otherwise be eligible for a non-money bond because he poses a minimal flight risk and danger to the community, the Court cannot presume that the judge will impose a bond so financially onerous as to deny the defendant pretrial release.
The Court finds that, on its face, Article 334.4 is unlikely to result in pretrial detention of defendants who would otherwise be eligible for personal recognizance bonds. The only circumstance in which this might plausibly occur is when the defendant is unable to post even a de minimis money bond. In ruling on Faulkner's facial challenge, however, the Court may not "speculate about `hypothetical' or `imaginary' cases." Wash. State Grange, 552 U.S. at 450. Since Article 334.4, on its face, occasions only a minimal risk of erroneous deprivation of a defendant's interest in pretrial release, the Court concludes that the second Mathews factor weighs strongly in favor of the State.
As to the third Mathews factor, the Court finds that Article 334.4 serves the State's legitimate interest in public safety. Bail in Louisiana serves two purposes: ensuring the presence of the defendant at trial, and ensuring the safety of any other person and the community. La. C. Cr. P. Art. 334. The eleven offenses enumerated in Article 334.4 involve either violent or dangerous conduct directed toward human or animal victims, or the production or distribution of controlled dangerous substances. See La. C. Cr. P. Art. 334.4(A). The Court concludes that the Louisiana legislature determined that these offenses are of sufficient gravity, and occasion a sufficient flight risk or risk of danger to the community, to warrant mandatory imposition of a money bond.
Consideration of the three Mathews factors indicates that Article 334.4 is procedurally sufficient, primarily because the risk of erroneous deprivations is minimal. See Kaley v. United States, 134 S.Ct. 1090, 1103 (2014) (noting that the second Mathews factor is "critical when the governmental and private interests both have weight"). The Court concludes that Article 334.4 falls within the "`great leeway' given to governments in `protect[ing] public health and safety.'" Bevis v. City of New Orleans, 686 F.3d 277, 281 (5th Cir. 2012) (alteration in original) (quoting Mackey v. Montrym, 443 U.S. 1, 17 (1979)). Faulkner's procedural due process claim fails.
Faulkner's second argument is that Article 334.4 violates the Excessive Bail Clause of the Eighth Amendment.
Throughout his petition, Faulkner relies substantially on dicta in the case of Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978).
Further, the dicta on which Faulkner relies addresses circumstances in which indigent defendants remain incarcerated pending trial due to imposition of money bonds. As stated in Part III.B., supra, the Court finds that the only circumstance in which application of Article 334.4's facial requirements will result in pretrial incarceration of a defendant who would otherwise be applicable for a non-money bond is when the defendant is unable to post even a de minimis money bond. This theoretical scenario may not serve as the basis for Faulkner's facial challenge. If Faulkner, or any other defendant, can establish that after consideration of all of the statutory factors he would otherwise have been eligible for a non-money bond, and that imposition of a money bond under Article 334.4 resulted in his pretrial detention, he may be able to succeed in an as-applied challenge to Article 334.4.
The Court DENIES Faulkner's petition for a writ of habeas corpus.