                                      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
               (Opinion filed: July 9, 2018)

Paul D. Clement, Esquire       (Argued)
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

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       (Argued)
Tess Borden, Esquire
Edward Barocas, Esquire
Jeanne LoCicero, Esquire




                               2
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




                              3
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.




                               4
                       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 bail-
restricted 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




                              5
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 ten-
percent cash bail option. See VanNostrand Report at 13.




                               6
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 “resource-
based” 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




                               7
       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.




                               8
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




                               9
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




                               10
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).




                               11
        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 non-
monetary conditions include that the eligible defendant:

       (a) remain in the custody of a designated person . . . ;




                               12
      (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




                              13
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 second-
degree 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.




                               14
       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




                              15
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 third-
party 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




                                16
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 non-
refundable 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.




                                17
          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




                              18
(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.




                              19
        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 non-
monetary 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




                               20
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 third-
party 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 third-
party 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.




                              21
        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.




                              22
       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.




                               23
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)).




                              24
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




                               25
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).




                              26
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




                               27
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




                              28
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).




                               29
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




                              30
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 non-
monetary 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




                               31
       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.




                               32
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




                                33
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




                               34
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




                                35
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).




                              36
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).




                              37
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 non-
monetary 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




                              38
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




                               39
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.




                              40
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.




                               41
       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




                               42
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-




                              43
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.




                               44
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 non-
monetary bail conditions Holland accepted. Perhaps what he
proposes is that using monetary bail to mitigate flight would




                               45
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,




                              46
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




                               47
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.




                               48
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




                              49
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.




                               50
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




                             51
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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