Younger and Older Abstention

Fred O. Smith Jr.* January, 2025

When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court’s emphasis that abstention is a narrow exception to federal courts’ duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of “free-floating federalism,” diverging from the Supreme Court’s careful balance between comity and individual rights. This has led to lower courts’ significant expansion of criminal abstention doctrine, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pretrial detention and child welfare proceedings.

Given the federal judiciary’s increased emphasis on tradition in interpreting contemporary equitable remedies, this Article contrasts these novel expansions with historical equitable practices. While the doctrine of criminal abstention is now known as “Younger abstention” after the 1971 case Younger v. Harris, criminal abstention and its core exceptions originate from centuries-old equitable proceedings in both the United States and England. Historically, courts of equity intervened in ongoing criminal proceedings when those proceedings were inadequate to redress harm or irreparable harm would otherwise result. Similarly, in the decades after the Fourteenth Amendment, federal courts balanced federal constitutional rights against state interests in ways that accounted for a federal judicial role in ending great irreparable harm. The most recent lower court expansions of the doctrine are in severe tension with that tradition.

Introduction

Federal courts generally do not restrain state criminal prosecutions. Nonetheless, the federal judiciary will intervene if the underlying state forum is a demonstrably inadequate site to raise federal constitutional claims or if grave and immediate irreparable harm will otherwise befall the plaintiff. Although these general principles are well established,¹ several lower courts in recent cases have significantly broadened the scope of criminal abstention in alarming and escalating ways. If these aggressive experiments in “comity” spread, criminal abstention would come to pose a nationwide existential threat to lawsuits challenging systemic harms perpetuated by state actors.² These include, but are not limited to, suits challenging local criminal schemes to incarcerate poor Americans for their inability to pay fines, fees, or bail.³ Because these lawsuits potentially impact millions of Americans who experience pretrial detention each year,⁴ they are among the most important civil rights lawsuits of our time.⁵ Moreover, unconstrained arguments for criminal abstention are poised to end important classes of federal civil rights litigation that lack a clear relationship to criminal law, such as cases challenging structural illegalities in child welfare proceedings.⁶

Recent arguments for expanding criminal abstention threaten to fundamentally reshape federal courts’ role in correcting illegalities in state criminal proceedings. These expansions manifest in three increasingly aggressive approaches, each grounded in broad notions of comity. First, one appellate court has eliminated federal judicial access—even when state proceedings fail to provide timely relief for constitutional violations—effectively forcing plaintiffs to endure irreparable harm while waiting for delayed remedies. ⁷ Second, two appellate courts have barred federal intervention whenever plaintiffs theoretically could file a civil complaint in state court, regardless of that forum’s practical adequacy. ⁸ Third and most troublingly, some courts have started blocking federal judicial access whenever a suit challenges systemic illegalities in state criminal proceedings, without regard to the type of relief sought or the gravity of the constitutional violation at stake. ⁹ Taken together, these expansions threaten to transform criminal abstention from a limited doctrine of judicial restraint into an insurmountable barrier against federal remediation of unconstitutional harms in state criminal systems—precisely when such oversight may be most needed to protect constitutional rights.

For example, the Fifth Circuit’s pivotal 2023 decision in Daves v. Dallas County¹⁰ significantly expanded the scope of criminal abstention doctrine and reshaped the access-to-justice landscape. The court determined that criminal abstention principles precluded federal courts from hearing claims brought by Dallas detainees who alleged unconstitutional detention due to their inability to pay bail. This decision overturned ODonnell v. Harris County, which had permitted similar claims from Houston misdemeanor arrestees to proceed in federal court.¹¹ The ramifications of this jurisprudential reversal are substantial: Indigent defendants across the Fifth Circuit’s jurisdiction—Louisiana, Mississippi, and Texas—are effectively barred from seeking federal judicial review of pretrial bail systems that fail to consider defendants’ financial circumstances. These systems’ constitutionally dubious practices disproportionately separate economically disadvantaged individuals from their families, employment opportunities, and communities based solely on their financial status.¹²

Daves exemplifies how contemporary arguments for expanding abstention doctrine superimpose appeals to comity with historical narratives that mischaracterize several key aspects of federal-state judicial relations. These arguments portray equitable intervention in criminal proceedings as unprecedented, federal oversight of state criminal matters as a recent development, and challenges to poverty-criminalizing practices as modern innovations.¹³ These characterizations deserve critical examination. Although comity has long served as a crucial consideration in equitable relief cases involving collateral criminal proceedings, courts have consistently recognized two significant exceptions: cases involving the need to remedy severe and irreparable harm and cases where the criminal forum proved insufficient to address the underlying legal violations.¹⁴ Furthermore, the Daves court’s dismissal of such claims as arising from “novel notions of social justice and personal rights” overlooks an important reality: Challenges to excessive bail, fines, and fees—particularly those failing to account for ability to pay—date back to the nation’s Founding.¹⁵

While contemporary legal discourse typically frames criminal abstention through the lens of Younger v. Harris,¹⁶ decided in 1971, a more comprehensive analysis reveals that both the doctrine and its principal exceptions have considerably deeper roots. The principles underlying criminal abstention can be traced through centuries of equitable proceedings in both American and English jurisprudence, with documented cases appearing in state courts well before the Civil War.¹⁷ The specific application of these principles to federal challenges of state prosecutions emerged in the late nineteenth century, following Congress’s expansion of federal jurisdiction and coinciding efforts to enforce Fourteenth Amendment rights.¹⁸ Historical context makes clear that recent judicial efforts to broaden criminal abstention not only conflict with the established framework of Younger and its progeny, but also represent a significant departure from centuries-old legal principles that balanced respect for state proceedings with necessary exceptions to protect fundamental rights.

Historical practices notwithstanding, contemporary discourse tends to focus instead on a handful of cases from a narrow timeframe—roughly 1965 to 1977. When federal courts scholars have focused on criminal abstention doctrine outside of that truncated period, we have nonetheless generally neglected the centuries-old history of equitable restraint relating to criminal legal issues. To be sure, several decades ago, some scholarly attention was dedicated to criminal abstention between 1908, when Ex parte Young was decided, and 1965, when the Supreme Court permitted enjoining a racialized, bad-faith criminal prosecution in Dombrowski v. Pfister.¹⁹ And scholarship that predates Dombrowski—for example, a 1930 Harvard Law Review article by Charles Warren²⁰—shone some light on criminal abstention cases from the Lochner Era. But writing on those cases largely ceased after Dombrowski,²¹ and cases predating the Lochner period have mostly been neglected.²²

Given the Supreme Court’s increasing reliance on historical practices to shape and define equitable remedies, the surprising dearth of contemporary scholarship examining criminal abstention’s foundations demands attention.²³ As criminal abstention—a doctrine of equitable restraint—continues to gain prominence in significant contemporary litigation, it is increasingly urgent to understand its historical underpinnings, especially as modern expansions of the doctrine appear to diverge from established traditions. Well before the watershed decision in Ex parte Young, litigants employed various collateral legal mechanisms—including injunctions, writs of mandamus, habeas proceedings, and damages actions—to address alleged illegalities within criminal legal systems.²⁴ A thorough examination of nineteenth-century cases and treatises can illuminate crucial questions about when courts exercised restraint, when they granted remedies, and how principles of federalism and comity influenced judicial decision-making—particularly in cases involving federal remedies for state criminal law violations.

This Article advances three central arguments concerning the role of overlooked equitable traditions in contemporary abstention discourse. First, federal courts are being encouraged to apply criminal abstention in ways that could permit irreparable harm to continue, even when state forums prove inadequate to address such injuries. Second, although historical chancery courts respected principles of comity and sought to avoid friction with courts of law, they maintained a clear precedent for intervention in cases where either the criminal forum proved deficient or plaintiffs faced severe, irreparable harm. Third, current proposals to expand criminal abstention fundamentally conflict with the intended post-Civil War role of federal courts, both at law and in equity. Deliberately expanded through the Reconstruction Amendments and subsequent legislation, the federal courts’ roles were specifically designed to check state violations of constitutional rights, particularly in criminal matters. Federal courts actively embraced this responsibility and—following their equitable predecessors—intervened to prevent grave and irreparable harm, especially when state forums proved inadequate to address federal constitutional violations. This analysis gains particular resonance when considering how federal courts, despite comity concerns, intervened to halt the racist persecution of Chinese individuals in the American West—a historical precedent that raises serious concerns about attempting to construct a contemporary doctrine that might have prevented such vital interventions against racial injustice.

This Article will proceed as follows. Part I highlights the importance of criminal abstention to contemporary legal contexts. In Younger, the Court’s emphasis on the need to respect “Our Federalism,” was accompanied by a longstanding recognition of the federal courts’ obligation to abate “great” and “irreparable” harm resulting from constitutional violations. In a range of contemporary litigation, federal courts have been pushed to embrace the former at the expense of the latter. In what has recently been called a kind of “new comity abstention,” federal courts have expressed far-reaching views about ways that criminal abstention and principles of federalism block them from addressing systemic illegalities in state systems.²⁵ Central to many of these lawsuits are claims that state schemes to incarcerate people solely for their inability to pay a fine or fee violate the Fourteenth Amendment. Other claims involve challenges to other punitive systems, such as child custody proceedings. When these practices are challenged in federal court, a series of jurisdictional doctrines, like criminal abstention, are raised as defenses. Federal courts are increasingly pressed to apply these restraint doctrines in unprecedented ways. Part I will show that arguments both for and against application of criminal abstention in these cases are hyper-focused on a handful of cases from a short period of time: Dombrowski v. Pfister in 1965,²⁶ Younger v. Harris in 1971,²⁷ Gibson v. Berryhill in 1973,²⁸ O’Shea v. Littleton in 1974,²⁹ and Gerstein v. Pugh in 1975.³⁰

Part II explores cases between the Founding era and Ex parte Young that grapple with the relationship between equity and criminal law. Given that investigation’s breadth, its discussion will be highly stylized, relying on old treatises and illuminating examples in case law to better appreciate the types of cases in which equitable remedies were rejected as well as the ones in which remedies were embraced. This Part places a particular emphasis on cases in which federal courts (including the United States Supreme Court) enjoined, or declined to enjoin, state criminal prosecutions during the Reconstruction and the Lochner Eras.

Because understanding equitable remedies requires understanding contemporaneous legal remedies, Part III highlights remedies for illegalities in state criminal systems at common law. These include claims that bear resemblance to civil rights cases today: cases against sheriffs and municipalities for extortion and excessive bail.

Part IV examines the significance of historical context and tradition in shaping contemporary interpretations of equitable restraint and federalism in relation to criminal abstention cases. What doctrinal weight should be placed on how historical practices of federal intervention in state matters clash with contemporary expansions of criminal abstention? Part IV will explore the ways historical practices undermine legal arguments that treat either federal intervention into state criminal wrongs or the substantive rights at stake in contemporary civil rights litigation as a novel break from the past. Moreover, this Part delves into the complex interplay between federalism, comity, and the protection of individual rights, particularly in the context of post-Civil War Reconstruction and Fourteenth Amendment enforcement.

I. Criminal Abstention Today

Younger v. Harris is the leading case addressing the circumstances in which federal courts may halt ongoing state criminal prosecutions. It holds that ending ongoing state prosecutions is presumptively improper unless, among other exceptions, the intervention stops harm that is “great” and “irreparable.”³¹ The Court made two moves during the Younger era that have, in recent years, proven consequential as governmental litigants push for the doctrine’s expansion. First, the potent, poetic language in which the Court described federalism in Younger-era cases outmatched the rhetorical fire the Court reserved for describing federal courts’ obligation to abate grave, irreparable, unconstitutional harms.³² Second, the Court disconnected its reasoning from equity alone, relying instead on “comity.”³³ Indeed, in a companion case to Younger, the Court even applied the doctrine to a suit at law, preventing a federal court from entering declaratory relief that would have consequently halted an ongoing state criminal prosecution.³⁴ This left the doctrine relatively untethered from a rich equitable tradition that could offer courts guidance on these issues.³⁵

After outlining these features of Younger, this Part will explore three relatively new strategies governmental defendants employ to broaden the scope of criminal abstention doctrine: (1) eliminating the timeliness exception; (2) instituting an exhaustion requirement that mandates plaintiffs file federal constitutional grievances affecting state criminal justice systems in state courts; and (3) abstaining whenever a litigant challenges ongoing, systemic issues within an important state forum—even if that suit would not halt an ongoing prosecution. Notably, the third broadsided strategy not only appears in arguments formally labeled Younger abstention, but also in arguments about the proper scope of various governmental immunities.³⁶ Moreover, in addition to suits for injunctive relief, comity has been invoked as a reason not to grant various remedies at law, such as habeas relief.³⁷ While proponents of these strategies do not claim to be innovating, their application would, in effect, significantly alter the landscape of criminal abstention. Lastly, this Part will discuss the narrow focus of current debates on criminal abstention.

A. Younger, Comity, and Irreparable Harm

In the late 1960’s, the Supreme Court wrestled with the circumstances in which federal courts could or should end ongoing state criminal proceedings. During the Civil Rights Movement, federal courts had intervened to protect the free speech rights of protestors facing harassment in the South.³⁸ In the most famous of these precedents, Dombrowski, the Supreme Court held that federal courts could end the ongoing harassment of civil rights workers in Louisiana:

[I]t is readily apparent, that abstention serves no legitimate purpose where a statute regulating speech is properly attacked on its face, and where, as here, the conduct charged in the indictments is not within the reach of an acceptable limiting construction readily to be anticipated as the result of a single criminal prosecution and is not the sort of ‘hardcore’ conduct that would obviously be prohibited under any construction.³⁹

As the Civil Rights Movement waned, questions about how broadly to interpret Dombrowski remained. To what extent was that intervention justified by the prosecution’s bad faith, and to what extent was the intervention justified instead by the fact that the prosecution fundamentally eroded the targeted individuals’ speech rights? Put differently, could a prosecution’s trampling of freedom of speech by way of a highly overbroad law, without more, furnish a basis for federal judicial intervention?

Two sources of law simultaneously guided and necessitated these questions. First, under the Anti-Injunction Act of 1793, federal courts were not to enjoin state proceedings unless necessary to protect federal jurisdiction, necessary to effectuate its judgments, or authorized clearly by Congress.⁴⁰ Second, courts of equity traditionally did not stop collateral criminal prosecutions absent certain exceptions—for example, when a litigant would otherwise face irreparable harm.⁴¹ The Fourteenth Amendment’s passage caused federal equitable courts to apply this tradition with particular force when asked to end a state criminal matter.

In Younger v. Harris, both issues were presented to the Court. And in an initial 1968 draft opinion, Justice Black strongly implied that the Anti-Injunction Act barred enjoining state proceedings, including Section 1983 suits.⁴² However, several justices needed for a majority objected that such a holding was far too broad, as it would prevent injunctions against illegal civil proceedings and prevent courts from enjoining proceedings when there was no ongoing criminal prosecution.⁴³ Consistent with those justices’ concern about overreliance on the Anti-Injunction Act, the Court later held in Mitchum v. Foster that Section 1983 suits were exempt from the Anti-Injunction Act’s reach, because the Act constituted an express warrant from Congress for such injunctions.⁴⁴

After a three-year tug of war with fierce deliberations, Younger itself was ultimately decided on reasons rooted in equity and comity.⁴⁵ The Court emphasized the importance of restraining equity jurisdiction to preserve the jury’s role and prevent unnecessary duplication of legal proceedings. It noted that while the doctrine may have originated in England, its principles remain crucial under the U.S. Constitution. Furthermore, the Court highlighted the significance of comity—a concept of mutual respect between state and federal governments. This idea, they explained, recognizes the unique structure of the United States as a union of separate state governments. The justices concluded that the federal government would function best by allowing states and their institutions to operate independently within their jurisdictions.⁴⁶ And, in the opinion’s most famous passage, the Court added:

This, perhaps for lack of a better and clearer way to describe it, is referred to by many as “Our Federalism,” and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of “Our Federalism.”⁴⁷

While the Court affirmed the importance of federalism, it also recognized federal courts’ crucial role in preventing severe and irreparable harm. The Court clarified that comity “does not mean blind deference to ‘States’ Rights’ ” nor does it imply complete centralization of control.⁴⁸ Rather, it allows for a balanced approach where federal intervention is permissible under exceptional circumstances.⁴⁹ Specifically, the Court acknowledged a “judicial exception” to the policy of non-interference with state criminal proceedings when a person can demonstrate that they will “suffer irreparable damages” if the state court proceeding is not enjoined.⁵⁰ However, later in the opinion, the Court set a high bar for such intervention, emphasizing that “even irreparable injury is insufficient unless it is ‘both great and immediate.’ ”⁵¹ The Court distinguished between ordinary litigation burdens and truly irreparable harm, noting that “the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution” do not meet this threshold. Instead, to warrant federal intervention, the threat to federally protected rights must be so severe that it “cannot be eliminated by his defense against a single criminal prosecution.”⁵² This careful balancing act preserves the integrity of state functions while ensuring federal courts can step in to prevent extraordinary injustices.

In the years that followed, the Court issued a series of tailored refinements. The Court emphasized that federal courts should not stay their hand when the underlying state proceeding is plagued by inadequacies like bias or bad faith. In other ways, the doctrine underwent a significant expansion.⁵³ By 1977, scholars raised concerns about the erosion of Ex parte Young, a pathmarking case that permitted federal intervention into an illegal state prosecution.⁵⁴ This expansion was evident in several key cases. In Samuels v. Mackell, a companion case to Younger, the Supreme Court extended its presumption against federal intervention to include declaratory judgments in ongoing state criminal cases.⁵⁵ Then, in Hicks v. Miranda, the Court ruled that federal claims for injunctive relief should be dismissed if criminal charges are filed after the federal case was filed but before substantial proceedings in federal court.⁵⁶ Decided the same year as Hicks, Huffman v. Pursue, Ltd. applied Younger abstention principles to a party that had not exhausted all state appeals within the same unitary system.⁵⁷ Two years later, the Court extended Younger abstention to civil proceedings akin to criminal prosecutions and other situations in which a federal court decision would prevent a judgment from being enforced.⁵⁸ In Juidice v. Vail, the Court reversed a district court’s injunction against a state contempt proceeding,⁵⁹ a principle interpreted a decade later to generally preclude federal cases “that implicate a State’s interest in enforcing the orders and judgments of its courts.”⁶⁰

While the expansions of the Younger doctrine did not meet universal praise, they did offer a set of reasonably clear, predictable rules.⁶¹ This clarity was further enhanced when the Court made concerted efforts to contain and refine the doctrine roughly a decade ago in Sprint Communications, Inc. v. Jacobs.⁶² In a unanimous decision, the Court affirmed that Younger abstention is not a broad principle to be applied whenever there is an ongoing state proceeding. Instead, Justice Ginsburg clarified that Younger does not apply “outside these three ‘exceptional’ categories”: (1) ongoing state criminal prosecutions;⁶³ (2) certain civil enforcement proceedings that are “akin to criminal prosecutions”;⁶⁴ and (3) civil proceedings involving orders uniquely in furtherance of the state courts’ ability to perform their judicial functions.⁶⁵

A broader doctrine, the Court admonished, would flout the centuries-old obligation for federal courts to hear cases within their jurisdiction.⁶⁶

The Court has been clear that even in those three circumstances, intervention can be warranted when the underlying state forum is inadequate to prevent great and irreparable harm the plaintiff would otherwise suffer. For example, a bad-faith prosecution would justify federal intervention,⁶⁷ as would a biased forum.⁶⁸ Additionally, if a plaintiff will experience great and irreparable harm before there is opportunity to redress it in the underlying state forum, that forum is deemed inadequate.⁶⁹ For a court to stay its hands in that circumstance would be improper, converting a doctrine of abstention into one of abdication.

Despite the clarity of the Court’s rules, a siren song has proven more alluring in some corners of the federal judiciary today: the Court’s rhetoric. This includes not only the “Our Federalism” rhetoric of Younger but also language in the 1974 case O’Shea v. Littleton.⁷⁰ In O’Shea, a group of predominantly black Cairo, Illinois residents filed a class action lawsuit against a magistrate and a circuit court judge. The plaintiffs alleged that the judicial officers engaged in discriminatory practices in criminal cases, including illegal bond-setting, sentencing, and jury fee practices. These actions allegedly violated the plaintiffs’ constitutional rights and several civil rights statutes.⁷¹ The Court ruled that the plaintiffs lacked Article III standing; They could not demonstrate that they were likely to be injured by the constitutional violations they challenged.⁷²

In the alternative, the O’Shea court opined that even if the plaintiffs did have Article III standing, equitable relief would conflict with Younger’s teachings. The injunction the plaintiffs sought would facilitate “interruption of state proceedings to adjudicate assertions of noncompliance.”⁷³ Such piecemeal interruptions of the daily conduct of criminal trials would constitute “federal audit[s] of state criminal proceedings” of the sort that Younger aimed to prevent⁷⁴ Worse, the plaintiffs were seeking such an injunction absent a showing that grave, immediate irreparable harm would follow. In those circumstances, intervention would undermine principles of comity.⁷⁵

As detailed below, however, observers have interpreted the Court’s language of comity and citation to Younger as a broad prohibition on addressing widespread, ongoing wrongs in state criminal systems. This is true even when, in contrast to O’Shea, a litigant (1) has Article III standing; (2) is not asking for relief that would invite piecemeal, continuous interruptions into state criminal proceedings; and (3) would suffer great and irreparable harm in the absence of federal judicial intervention. Indeed, most disconcertingly, courts are engaging in this free-floating federalism rationale to abstain in cases that do not involve interrupting a criminal prosecution (or proceeding akin to a prosecution) at all.

B. Who and When

Over fifty years ago, on the pages of the Yale Law Journal, Professor Henry Monaghan wrote that beyond defining substantive rights, federal courts are often tasked with deciding “who may obtain constitutional declarations and when.”⁷⁶ As the United States confronts fatal flaws in its architecture of constitutional accountability, criminal abstention doctrine shows up in an urgent subset of those two questions. “Who” criminal abstention impacts are survivors of systemic and structural constitutional violations in state judicial proceedings bringing federal lawsuits to prevent or redress those injuries.⁷⁷ As for “when,” these claims face the perpetual risk of being deemed and doomed as untimely.

The jurisdictional obstacles are daunting. When litigants bring suit before the criminal legal system formally ensnares them, federal courts sometimes conclude that these litigants brought their suits too early because the claims are speculative.⁷⁸ When litigants bring suit after state criminal proceedings have commenced, federal courts sometimes conclude that the resultant federal lawsuits have, in essence, been brought too promptly, given those concurrent state proceedings.⁷⁹ When litigants bring federal suit after a state court judgment, litigants risk bringing those suits both too late, because the state proceedings have terminated, ⁸⁰ and too early, in that it is speculative whether one will face illegal prosecution again.⁸¹

Across different timeframes, these rules work together to ensure that in cases challenging structural and systemic flaws in state criminal legal systems, aggrieved litigants face the high and sometimes insurmountable risk that they can never maintain federal lawsuits to prevent irreparable harm or redress past constitutional harm.

Rendering these obstacles even more daunting is the interplay between the when and the whom; that is, defendants who aggrieved persons may sue at different points in time. At different moments across the life of systemic constitutional violations in criminal enforcement, different actors are ostensibly responsible for doing the harm. At any point in time, many barriers might emerge depending on the named defendant’s identity. Judges and prosecutors, for example, are often protected by absolute immunities.⁸² Moreover, states cannot be sued for damages both because of sovereign immunity⁸³ and because they are not considered “persons” within the meaning of Section 1983,⁸⁴ the statute that creates a cause of action against state officials who violate federal rights. Suits against local governments come with their own set of doctrinal burdens.⁸⁵ And therefore, at any point in time, a person seeking to free oneself from illegal government abuse must find a defendant whom the law has not shielded from federal lawsuits, all while demonstrating that at the time the suit is filed, their actual or imminent injury is traceable to that elusive defendant.

These doctrines were never intended to forever lock litigants out of federal court when serious, meritorious federal constitutional claims are at issue. And if one views the doctrines in isolation, one can quickly lose perspective on how they operate together: Who can sue whom in federal court when a deeply broken criminal system is engaging in systemic abuses? The answer to that question cannot be that nobody can sue anyone in federal court for these federal constitutional abuses ever. That answer is anathema to any defensible conception of accountability, equity, or federalism. Yet, that is where American law is at risk of mercilessly drifting.

1. Criminalization of Poverty

One urgent setting in which these issues arise is in cases challenging the criminalization of poverty. Over the past decade, federal suits challenging systems that criminalize poverty have arisen in two primary settings. First, Americans facing pretrial detention have filed suits when they are unable to pay bail amounts imposed with no attention to their ability to pay.⁸⁶ Second, people have filed suits who owe the government unpaid fines or fees; the state has incarcerated these individuals due to their inability to pay these debts.⁸⁷

The first set of suits is exemplified by the federal complaint of Maurice Walker, a man in his mid-fifties with a mental health disability and who subsisted solely on a monthly Social Security disability payment of $530.⁸⁸ In Calhoun, Georgia, September 2015, he was apprehended by local police for walking near a roadway under the influence of alcohol, breaching title 40, section 95 of the Georgia Code.⁸⁹ This misdemeanor charge could have resulted in a fine up to $500, but it did not entail a jail sentence.⁹⁰ Following his arrest, Walker was detained in a local jail and informed that he could only be released upon payment of a $160 cash bond, which was the standard amount for such offenses in Calhoun.⁹¹ Financially constrained, neither Walker nor his family could afford this bond. Moreover, Walker alleged that during his incarceration, he was deprived of essential medication for his mental health condition, confined mostly to a single-person cell and generally experienced only one hour of daily respite.⁹²

Five days after his arrest and still in detention, he filed a federal lawsuit in the Northern District of Georgia.⁹³ This action was not only for himself but also represented a broader class of indigent individuals similarly affected. He argued that the City’s practice of detaining individuals unable to pay a small bond violated the Fourteenth Amendment.⁹⁴ His suit resembles others brought across the nation in locales ranging from other small towns to large cities.⁹⁵

The second group of lawsuits includes an ongoing suit initiated by Carly Graff and other financially disadvantaged individuals in Oklahoma convicted of either criminal or traffic-related offenses.⁹⁶ As a component of their sentencing, they incurred fines and fees. Following their sentencing or release from incarceration, they were obligated to establish payment arrangements with a “cost administrator.”⁹⁷ The plaintiffs contend that the cost administrator engaged in unlawful debt collection whenever plaintiffs either failed to make a payment or sought a payment extension. In such instances, without any prior notification to the debtor, a court clerk or cost administrator would pursue a warrant for arrest due to failure to pay. This warrant was commonly approved by a judge without examination and carried out by a sheriff.⁹⁸

This process became more complicated when a case was transferred to a collection agency called Aberdeen, Inc. Upon transfer, a 30 percent surcharge was added to the debtor’s total owed amount.⁹⁹ Aberdeen’s primary revenue source was these payments from court debtors. The transfer to Aberdeen—including the added surcharge—occurred without any notice to the debtor, judicial involvement, or opportunity for the debtor to be heard.¹⁰⁰ Aberdeen repeatedly contacted the debtor and their family and threatened arrest to coerce payment, even when aware of the debtor’s financial incapacity.¹⁰¹

Aberdeen’s actions continued to escalate. If their threats did not yield payments, they would contact court officials to request new arrest warrants for nonpayment without providing information about the debtor’s inability to pay.¹⁰² Judges routinely issued these warrants without a hearing or an opportunity for the debtor to explain nonpayment. Moreover, upon arrest for failure to pay, sheriffs kept debtors in jail unless they could pay a fixed sum for release, which varied by county.¹⁰³ Those unable to pay remained in jail for as many as ten days before seeing a judge, which was often their first chance to explain their financial situation.¹⁰⁴

The plaintiffs filed suit in the Northern District of Oklahoma, alleging violations of the Constitution and of the Racketeer Influenced and Corrupt Organizations Act (RICO) against Aberdeen and fifty-four sheriffs.¹⁰⁵ They alleged that Aberdeen and its partners formed a business relationship with the purpose of maximizing the collection of court debts without considering the debtor’s ability to pay or the debtor’s entitlement to legal processes. They further alleged that this entire practice of detaining persons on debt-collection warrants based solely on failure to pay lacks due process or constitutionally required legal safeguards.¹⁰⁶ This suit resembles others challenging similar practices across the nation.¹⁰⁷

Legal battles about abstention are common, if not routine, in federal litigation-challenging regimes that criminalize poverty.¹⁰⁸ Governmental defendants often find, however, that extant abstention doctrine is not capacious enough to block these suits.¹⁰⁹ This is so for at least two reasons. First, at the core of criminal abstention doctrine are cases that would interfere with a criminal prosecution, but plaintiffs like Walker and Graff do not challenge their criminal prosecutions.¹¹⁰ In Younger itself, for example, if John Harris had prevailed on his federal claim that California’s syndicalism statute was unconstitutional, that would have foiled his criminal prosecution. By contrast, if a court held that the pretrial detention practices Walker experienced were unconstitutional, this would have no bearing on whether the State of Georgia could prosecute him for walking around while intoxicated. As the Supreme Court reasoned in Gerstein v. Pugh, when litigants in Florida challenged illegal pretrial detention practices, “[t]he injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution.”¹¹¹ Further, Graff’s prosecution is already over.¹¹² And if she prevails on the merits, her traffic ticket sentence would not necessarily be invalidated; she would only be entitled to procedural protections while her debt is pursued. ¹¹³

The second reason that current abstention doctrine does not cover cases like Walker or Graff is that criminal abstention only applies when the underlying state proceeding provides an adequate opportunity to raise the federal claim.¹¹⁴ Plaintiffs like Walker and Graff argue that they do not have any opportunity, let alone an adequate or timely opportunity, to raise federal challenges at all before the government causes them to suffer grave and irreparable harm.¹¹⁵ As is often the case when a litigant challenges a systemic or structural flaw in a state system, the question of the adequacy of the states’ remedy is “for all practical purposes identical with the merits.”¹¹⁶

2. Child Welfare Proceedings

These abstention defenses are also pressed in child welfare proceedings. For example, in the recent class action lawsuit Annabel B. v. Holcomb, a group of children filed suit against Indiana state officials and the Department of Child Services (DCS), seeking to address systemic failures in Indiana’s foster care system.¹¹⁷ The plaintiffs, representing all children in DCS custody and a subclass of children with disabilities, allege that DCS fails to maintain adequate staffing levels, provide timely medical and mental health treatment, ensure placement stability, maintain proper medical records, and appropriately place children with disabilities.¹¹⁸ The lawsuit claims these failures violate children’s constitutional rights and federal laws, including the Adoption Assistance and Child Welfare Act and the Americans with Disabilities Act.¹¹⁹

The complaint details numerous distressing cases, including that of Sophia P., a thirteen-year-old girl in DCS custody since 2019. Sophia disclosed sexual abuse by her mother’s fiancé, but DCS initially failed to remove her from the home.¹²⁰ After eventually being placed in foster care, Sophia did not receive any trauma therapy for almost two years, despite DCS’s awareness of her severe trauma. DCS has since bounced her between multiple placements, including foster homes and residential facilities, where she has exhibited serious behavioral issues.¹²¹ The lawsuit argues that cases like Sophia’s demonstrate DCS’s systemic failures to protect children and provide necessary services.¹²²

The plaintiffs sought declaratory judgment that DCS’s practices were unconstitutional and unlawful, as well as injunctive relief requiring various reforms. These reforms included procedural protections consistent with the federal legal commands of the Child Welfare Act of 1980 and the Safe Families Act of 1997.¹²³

Legal battles about abstention and comity are common in this legal setting as well. In Annabel B. v. Holcomb, for example, a federal district court recently dismissed the suit on abstention grounds.¹²⁴ The opinion, which relied on recent Seventh Circuit precedent,¹²⁵ is notable because the case does not ostensibly fall into any of the three categories outlined in Sprint to which Younger applies. First, there was no ongoing criminal prosecution. Second, there was no civil proceeding in which the plaintiffs were being sanctioned for wrongful conduct. Third, there was no argument that the civil proceedings here were in furtherance of state court judgment.

A related but legally distinct case—Oglala Sioux Tribe v. Fleming—met the same fate. There, two Native Nations and individual tribal members challenged South Dakota’s emergency child removal procedures, alleging violations of both the Indian Child Welfare Act (ICWA) and the Fourteenth Amendment’s Due Process Clause.¹²⁶ The plaintiffs specifically contested South Dakota’s “48-hour hearing” process, arguing that the state’s policies failed to provide American Indian parents with meaningful hearings after their children were taken into temporary custody.¹²⁷ While the district court initially granted partial summary judgment and issued injunctive relief requiring enhanced procedural protections, the Eighth Circuit ultimately vacated these orders on abstention grounds.¹²⁸ “The relief requested would interfere with the state judicial proceedings by requiring the defendants to comply with numerous procedural requirements at future 48-hour hearings,” the court reasoned.¹²⁹ The Court further reasoned that South Dakota courts could address the plaintiffs’ legal objections, noting that the Supreme Court of South Dakota can issue writs of mandamus and that South Dakota also has state courts of general jurisdiction.¹³⁰

The Court’s reasoning effectively creates an exhaustion requirement, forcing plaintiffs to file state collateral proceedings rather than federal collateral proceedings whenever available. If that were the law, Younger would cease to be a narrow exception to the general rule that federal courts must exercise jurisdiction, given that all states have high courts and courts of general jurisdiction. Indeed, the Supreme Court has made clear that Section 1983 does not contain an exhaustion requirement.¹³¹ Plaintiffs may elect a federal forum without such exhaustion.

These cases are emblematic of a broader trend.

C. Younger’s Quiet Expansion

Across these contexts, even as the Supreme Court has placed guardrails on Younger through what Frederick Schauer might have called “rulification,”¹³² lower courts have sometimes resisted those rules. This resistance has manifested in at least three ways.

1. Untimely but Adequate

First, one federal court has forgone the established timeliness exception to criminal abstention. Under existing legal principles, a state-level legal proceeding is considered an insufficient venue for contesting federal legal violations if the litigant lacks the opportunity to address these violations before suffering great, irreparable harm. But the Fifth Circuit disavowed this exception in the recent en banc opinion of Daves v. Dallas County.¹³³ In that case, plaintiffs alleged that they were being jailed before trial without a hearing to determine their ability to pay.¹³⁴ Any chance the plaintiffs had in the underlying state system to assert their federal constitutional rights is untimely: They will have already experienced the great, immediate, irreparable harm they wish to redress. Dismissing the complaint on abstention grounds, the majority reasoned that the timeliness exception to Younger rests precariously on a single line in Gibson v. Berryhill.¹³⁵ In Gibson, the Court stated that the doctrine “presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved.”¹³⁶ The Fifth Circuit disagreed with those who, in its view, attribute undue and “talismanic” significance to that one line.¹³⁷

The language of Daves does not purport to be an expansion of Younger beyond the bounds of Supreme Court doctrine. But it is. The timeliness exception played a much more significant role in the Gibson opinion than a single throw-away line. By way of background, the Gibson case involved a group of optometrists in Alabama employed by corporations. These optometrists were charged with unprofessional conduct by the Alabama State Board of Optometry because the Board believed that being employed by a corporation constituted an illegal practice. The Alabama State Board of Optometry, responsible for licensing and regulating optometrists in Alabama, was composed entirely of independent practitioners.¹³⁸ These practitioners were in direct competition with the corporate employers. The employed optometrists challenged the proceedings, arguing that the Board’s members were competitors and had a direct financial interest in the outcome of the proceedings. ¹³⁹ They claimed that this created a conflict of interest, violating their due process rights under the Fourteenth Amendment.¹⁴⁰ In an opinion by Judge Varner, the three-judge district court panel agreed with the employed optometrists that there was an unlawful conflict of interest.¹⁴¹

On appeal, the United States Supreme Court rejected the argument that the optometrists’ claims were foreclosed by Younger abstention. The Court’s decision was primarily based on the Alabama proceeding’s failure to provide a sufficient platform for presenting federal constitutional claims. This inadequacy stemmed from the board’s financial interest in the case outcome, which compromised its ability to impartially adjudicate the claims. But this bias, while central to Gibson, was not the sole reason identified for the proceeding’s inadequacy. The Court also noted that, even if the plaintiffs were granted a later opportunity to present their claims de novo before an unbiased state court, it would not justify Younger abstention.¹⁴² By that stage, the optometrists could have suffered significant irreparable harm, including license revocation and the negative publicity accompanying it.¹⁴³ A subsequent de novo hearing would fail to mitigate the substantial and immediate harm experienced in the interim. Therefore, the Court reasoned that abstention was not required “simply because judicial review, de novo or otherwise, would be forthcoming at the conclusion of the administrative proceedings.”¹⁴⁴

This timeliness requirement is reenforced by Gerstein v. Pugh, a class action lawsuit filed in the Southern District of Florida.¹⁴⁵ The lead plaintiff, Robert Pugh, had been incarcerated in Dade County.¹⁴⁶ He brought suit against Richard Gerstein, a state attorney whose actions led to Pugh’s arrest.¹⁴⁷ Pugh claimed that Gerstein’s policy denied him and other similarly situated defendants a preliminary hearing to assess probable cause for their detention.¹⁴⁸ This, they argued, violated the Fourth Amendment.¹⁴⁹ The district court issued an injunction against Gerstein, which the Fifth Circuit upheld.¹⁵⁰

The district court, the Fifth Circuit, and the United States Supreme Court all rejected the argument that Younger abstention foreclosed Pugh’s suit.¹⁵¹ The Supreme Court expressly reasoned, in a footnote, that “[t]he District Court correctly held that respondents’ claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions.”¹⁵² So, what did the district court say? It explained that Younger expressly allows for federal injunctions to correct “great and immediate” irreparable injury.¹⁵³ The plaintiffs’ claims met that bar, as they were not simply alleging the insufficient injury of defending against a criminal prosecution.¹⁵⁴ Illegal pretrial detention is a different sort of harm. And by the time the litigants could challenge these detentions, that grave harm would have already been inflicted: “Plaintiffs at bar are challenging the validity of their imprisonment pending trial with no judicial determination of probable cause. These facts present an injury which is both great and immediate and which goes beyond cost, anxiety, and inconvenience.”¹⁵⁵

As it affirmed the district court on appeal, the Fifth Circuit’s reasoning in Gerstein emphasized the relationship between adequacy and timeliness more directly. In an opinion by Judge Elbert Tuttle, the panel inquired, “If these plaintiffs were barred by Younger from this forum, what relief might they obtain in their state court trials? Since their pre-trial incarceration would have ended as of the time of trial, no remedy would exist.”¹⁵⁶

For plaintiffs like Walker, the alleged injuries are far more akin to those at issue in Gerstein than those at issue in Younger. Like Pugh, these plaintiffs allege that they are being unconstitutionally detained for significant periods without a hearing to assess whether they belong in jail as they await trial. For example, in Daves, some plaintiffs alleged that they were in jail for weeks or even months before being able to challenge the constitutionality of their detention.¹⁵⁷ These types of allegations go well beyond the expense and stress of criminal trials. The elimination of the timeliness exception would represent a consequential and deleterious change in current doctrine.

2. Exhaustion of Collateral State Remedies

There is a second way that Younger abstention may be undergoing an unprecedented expansion. Two lower courts have suggested that plaintiffs must first submit their federal constitutional grievances to state courts: the Fifth Circuit in Daves and the Eighth Circuit in Oglala Sioux Tribe.¹⁵⁸ Part II of this paper will later show how that reasoning contradicts principles of criminal abstention and comity dating back over a century. But the reasoning also is highly doubtful under recent, prevailing precedents. To be sure, a criminal defendant is obligated to fully navigate the state’s trial-and-appeal process before initiating a federal lawsuit that could disrupt ongoing criminal proceedings.¹⁵⁹ The criminal trial-and-appeal process is cohesive, and any mid-process federal interference could be perceived as a lack of respect for the state’s sovereignty. However, when it comes to remedies outside this integrated system, the Supreme Court has not mandated the exhaustion of other state remedies.¹⁶⁰

As the Supreme Court observed in Steffel v. Thompson, a case about the proper scope of abstention: “When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) . . . we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights.”¹⁶¹ The Court fortified its conclusion in Patsy v. Board of Regents, which disavowed the necessity of exhausting state administrative remedies before pursuing § 1983 claims.¹⁶² The Court’s conclusion in Patsy drew on the 1871 Congress’s intentions, which sought to ensure that individuals threatened with or experiencing the deprivation of constitutional rights have immediate access to federal courts, irrespective of any conflicting state law provisions.¹⁶³

This rejection of a general exhaustion requirement—except in cases involving a unitary appellate process—stands as a crucial safeguard within the Younger doctrine. Without this safeguard, states could almost always propose another state remedy that a plaintiff might pursue, such as mandamus or an injunction from a court of general jurisdiction. Requiring federal plaintiffs to pursue state remedies would effectively dissolve their ability to choose a federal forum for addressing federal rights violations. There is little reason to believe Congress intended that outcome when it created Section 1983.

3. Free-floating Federalism¹⁶⁴

Third, lower courts have confronted arguments that they should abstain essentially whenever a litigant challenges persistent, systemic illegalities within a state’s criminal system. For example in Dixon v. St. Louis, the Eighth Circuit overturned a federal district court’s decision that would have required St. Louis, Missouri to provide additional procedural safeguards to arrestees.¹⁶⁵ The appellate court determined that the lower court had not adequately considered issues of comity and the recent reforms in Missouri’s court system.¹⁶⁶ The Dixon court relied in part on the Jim Crow era case Railroad Commission of Texas v. Pullman Company.¹⁶⁷ In Pullman, the Supreme Court avoided ruling on the constitutionality of racially segregated Texas train cars, reasoning that the case, which touched on a “sensitive area of social policy,” might be resolved under state law.¹⁶⁸ In addition to Pullman, the Eighth Circuit broadly cited the “principle of comity” which “takes on special force when federal courts are asked to decide how state courts should conduct their business.”¹⁶⁹ When Dixon was remanded, the federal district court chose not to restore the injunction, citing its mootness due to Missouri’s new policies addressing the issue. But the court’s decision also cited the principle of comity.¹⁷⁰

More recently, the Fifth Circuit’s opinion in Daves took a similar path. Rather than apply Younger doctrine’s precise rules, which it called “unrelated nuances,” the Fifth Circuit instead “principally rel[ied] on the Supreme Court’s decision in O’Shea v. Littleton.”¹⁷¹ In Daves, the Fifth Circuit found that O’Shea was “closely on point.”¹⁷² And it implicitly cautioned against returning to a pre-Younger era in which “[i]deas of deference to state governmental systems or state courts seemed to have been overshadowed by the Supreme Court’s enthusiasm for effectuating novel notions of social justice and personal rights.”¹⁷³ Overruling circuit precedent from less than a decade ago, the Fifth Circuit ruled that federalism stood as an insuperable barrier to reviewing the legality of Dallas County’s pretrial detention system.¹⁷⁴

Dean John Manning once used the term “freestanding federalism” to describe federalism doctrines, such as state sovereign immunity, that are not rooted in any precise constitutional provision.¹⁷⁵ Arguably, Younger fits the bill as well, to the extent the Court invoked “Our Federalism” without a clear articulation of the work any constitutional provision did in its analysis. But what’s happening in the lower courts is distinctive. Not only is it a form of freestanding federalism, it also is a form of free-floating federalism. The doctrine is not only unmoored by constitutional text but is also untethered from any defined set of rules. It is not standing. It is traveling wherever a lower court thinks it might be needed. Free-floating better describes the doctrine than does freestanding.

One result of this is that arguments about comity are not only appearing in cases seeking injunctive relief, but also in cases involving other remedies. In Arevalo v. Hennessy, a federal district court deployed Younger abstention sua sponte to a petition for habeas relief filed by a pretrial detainee who had exhausted his state court remedies.¹⁷⁶ “[F]ederalism concerns compel the application of Younger to habeas petitions challenging the constitutionality of pretrial detention,” that court held.¹⁷⁷ For that proposition, the court relied heavily on O’Shea.¹⁷⁸ While the Ninth Circuit reversed, the district court illustrates how broad, free-floating federalism arguments are agnostic to the precise remedy being sought.

Indeed, even before the most recent wave of litigation-challenging regimes that criminalize poverty, some federal courts held that “Our Federalism” and comity could necessitate the application of Younger in suits that only sought damages relief.¹⁷⁹ In those decisions, O’Shea, together with the Court’s decision to apply abstention to suits seeking declaratory relief, played a role in abstention’s creep into the nonequitable remedy of damages. A doctrine of equitable restraint has sprawled to core cases at law.

While these cases purport to rely on O’Shea to override the precise rules and exceptions governing Younger abstention, this deployment of free-floating federalism is actually an expansion of Supreme Court doctrine. The Court has struck a careful balance in applying Younger doctrine to ensure that abstention does not cross the line into abnegation of federal courts’ duty to enforce the Constitution when a plaintiff faces, in the words of Younger itself, “great and immediate” harm.¹⁸⁰ Waving one’s hand and proclaiming “O’Shea” when someone challenges a systemic wrong in a criminal legal context does not suddenly hollow out other cases.

Three reasons support the view that the Fifth Circuit placed more weight on O’Shea than the case can bear. First, the Supreme Court decided Gerstein after O’Shea. The broadest reading of O’Shea—that federal courts may not issue injunctions correcting a systemic or structural flaw in state criminal legal systems¹⁸¹—is deeply undermined by the fact that in Gerstein, the Court endorsed precisely such an injunction.¹⁸² While Daves expressed concern about possibly holding government actors in contempt for violating the injunction,¹⁸³ the same could be said of Gerstein. And while the Supreme Court’s Younger abstention analysis was brief, its conclusion was unmistakable.¹⁸⁴ Younger abstention did not block the federal lawsuit in that case.

Second, the Supreme Court has cautioned lower courts against allowing Younger abstention to sprawl beyond the metes and bounds of Supreme Court doctrine. In Sprint Communications, Inc. v. Jacobs, decided in 2013, the Supreme Court overturned the Eighth Circuit’s application of Younger abstention to a civil administrative proceeding between two private parties in which one party was seeking compensation for a statutory violation.¹⁸⁵ This, the Court reasoned, took Younger abstention too far. “Federal courts, it was early and famously said, have ‘no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.’ Jurisdiction existing, this Court has cautioned, a federal court’s ‘obligation’ to hear and decide a case is ‘virtually unflagging.’ ”¹⁸⁶ In light of that obligation, the Court warned that “federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant and should not ‘refus[e] to decide a case in deference to the States.’ ”¹⁸⁷

Sprint disavowed an unmoored abstention doctrine that applies anytime a proceeding arguably implicates an “important state interest.”¹⁸⁸ In Sprint, much like the Fifth Circuit in Daves, the Eighth Circuit relied on Middlesex County Ethics Committee v. Garden State Bar Association for the view that federal courts should deploy Younger abstention “when (1) there is an ongoing state judicial proceeding, which (2) implicates important state interests, and (3) the state proceedings provide an adequate opportunity to raise constitutional challenges.”¹⁸⁹ The Sprint Court unanimously and emphatically rejected this broad approach:

Divorced from their quasi-criminal context, the three Middlesex conditions would extend Younger to virtually all parallel state and federal proceedings, at least where a party could identify a plausibly important state interest. That result is irreconcilable with our dominant instruction that, even in the presence of parallel state proceedings, abstention from the exercise of federal jurisdiction is the “exception, not the rule.”¹⁹⁰

The Court explained that it had never “applied Younger outside these three ‘exceptional’ categories.”¹⁹¹ Specifically, Younger abstention applied to “state criminal prosecutions, civil enforcement proceedings, and civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.”¹⁹² Because that case presented “none of the circumstances the Court has ranked as ‘exceptional,’ the general rule govern[ed]: ‘[T]he pendency of an action in [a] state court is no bar to proceedings concerning the same matter in the Federal court.”¹⁹³

Nothing about this reasoning suggests a broad, rudderless application of comity principles to displace a federal lawsuit outside these three circumstances. Quite the opposite. And the legal claims in cases like Daves do not fall into these three categories. These plaintiffs are not challenging their criminal prosecutions. They are not challenging a civil enforcement proceeding, which the Court defined as a civil proceeding that is akin to a criminal prosecution. “Akin,” here, means that the state designed the proceeding to sanction someone for conduct the state seeks to deter or punish.¹⁹⁴ Moreover, these suits do not resemble circumstances the Court has deemed to be “uniquely in furtherance of the state courts’ ability to perform their judicial functions.”¹⁹⁵ Unlike those circumstances—contempt hearings and a requirement that a litigant post bond in order to appeal a civil judgment¹⁹⁶—the relief sought by litigants like Daves would not preclude any state judicial proceeding from moving forward.

Third, as Judge Southwick noted, the injunction a plaintiff requests may differ from the one ultimately granted. The extent to which an injunction could undermine comity through excessive monitoring is uncertain at a case’s outset, as no injunction has yet been issued.¹⁹⁷ Dismissing a case based on Younger grounds prevents a district court from exercising discretion to determine the proper, comity-sensitive relief to grant.

D. The Absent Role of Tradition

In the legal arguments about whether to extend abstention, and more broadly when criminal abstention’s story is told today, courts and commentators generally begin at one of two starting points. First, as represented in the lower court arguments for and against abstention’s expansion, criminal abstention allegedly begins around the time of Younger v. Harris.¹⁹⁸ On this telling, in the early 1970’s, the Supreme Court created the doctrine of Younger abstention, calibrating a ruling from a few years earlier in Dombrowski in which the Court halted a set of ongoing prosecutions against civil rights workers in Louisiana.¹⁹⁹ A second telling of criminal abstention begins with the venerable Ex parte Young case which, although typically understood as a case about sovereign immunity and implied equitable causes of action,²⁰⁰ is also a case about when federal courts can restrain an ongoing state prosecution.²⁰¹ That opinion has sometimes been described as the catalyst for the Supreme Court’s decisions to either abstain or vindicate constitutional interests when asked to review issues that impact state criminal justice systems.²⁰² While neither of these stories is wrong, they are radically incomplete.

1. Pre-Ex parte Young

Legal academic scholarship in the years leading up to Ex parte Young stands as evidence that commentators were then familiar with criminal abstention’s deep historical foundations and at least some of its exceptions. These writings described two core rules that were already well-established. First, there was a general rule against enjoining criminal prosecutions. Second, courts could nonetheless grant such injunctions to abate or prevent grave, irreparable harm. For example, a short, 1890 piece in the Harvard Law Review described it as “a well-settled general rule of equity jurisprudence that a court of equity never extends its jurisdiction to the enjoining of criminal proceedings.”²⁰³ “[Y]et,” the author explained “the rule has its exceptions. . . [w]here a threatened criminal proceeding is vexatious and involves a destruction or injury to property; and, especially, under circumstances where the party injured would have no adequate remedy at law for restitution.”²⁰⁴

Similarly, on the pages of the same legal journal, an author observed in 1904 that “[i]t is an ancient maxim that a court of equity will not restrain criminal proceedings. Like most legal maxims, this assertion, though generally true, does not accurately represent the state of the law.”²⁰⁵ The author observed that “where a number of prosecutions on the same facts are threatened, and it can be shown that irreparable damage will result from them, equity might enjoin all the proceedings save one, leaving that one to determine the controversy.”²⁰⁶ An author in the 1907 issue of Harvard Law Review likewise recognized this core rule and core exception: “Ordinarily equity will not interfere with criminal proceedings. But where irreparable damage would otherwise follow, the majority of the many conflicting cases will be found to hold that equity will restrain the enforcement of penalties under a statute affecting property rights which the court deems unconstitutional.”²⁰⁷

2. Between Young and Younger

In 1908, the Supreme Court issued its landmark opinion in Ex parte Young as it entertained a habeas petition filed by Edward T. Young, then Attorney General of Minnesota.²⁰⁸ The facts of the case are well known. The litigation was sparked by shareholders of the Northern Pacific Railroad Company, which named Attorney General Young and others as defendants in a lawsuit. The core of the dispute lay in the shareholders’ grievance against the railroad’s compliance with newly instituted rate regulations. They argued that the company’s leadership refused to disregard these regulations not because they deemed the rates reasonable or nonconfiscatory, but because penalties associated with noncompliance were unduly harsh.²⁰⁹

The lawsuit escalated when Attorney General Young attempted to dismiss the case, arguing that the court lacked jurisdiction over him. He contended that the lawsuit essentially targeted the State of Minnesota and invoked the Eleventh Amendment to assert immunity from being sued without the state’s consent. However, a federal court rejected his motion to dismiss and enjoined Young from enforcing the contentious rate regulations. Young’s refusal to comply with the injunction, however, resulted in his arrest for contempt. This in turn led him to file a writ of habeas corpus.²¹⁰ The United States Supreme Court rejected his petition, finding that the injunction Young violated did not run afoul of the Eleventh Amendment or principles of equity.²¹¹

Although some contemporaneous commentators treated Ex parte Young as a novel overreach,²¹² scholarly narratives continued to reflect the older footing of criminal abstention and its core exceptions even after Ex parte Young was decided. In 1930, for example, Charles Warren wrote an influential article about equity and comity in the context of federal judicial decisions that interfered with state proceedings.²¹³ His narrative did not begin in 1908 with Ex parte Young. Instead, he described earlier legal developments from near the Founding (such as the Anti-Injunction Act), and from the decades following the passage of the Fourteenth Amendment.²¹⁴ And even though the primary thrust of Warren’s argument was to warn against excessive federal intervention in state proceedings, the article nonetheless acknowledged a role for federal courts in some instances:

[As] the equitable jurisdiction of the federal courts, in these cases of injunctions against state law officials to restrain enforcement of alleged unconstitutional statutes, is based on the effect of such enforcement upon property rights, through excessive and oppressive penalties, or through possibility of multiplicity of suits causing irreparable damage, or through lack of proper opportunities for review, it is open to the states, by changes in the provisions of their statutes, to remove this basis for the exercise of equitable jurisdiction by the federal courts, and thus to confine the trial of such cases in the first instance to the state courts.²¹⁵

He then observed that state officials, like federal officials, have a role to play in maintaining comity. “[I]t lies with the states themselves to obviate this one source of friction with the federal authority.”²¹⁶ Warren’s analysis comports with other pre-Ex parte Young writings on jurisprudence allowing equitable relief against state criminal prosecution.²¹⁷

So, when did the deeper history of criminal abstention (and its important exceptions) start to fade from legal discourse? There is some evidence that this fading had started to occur by, or perhaps was even related to, the advent of Henry Hart and Herbert Wechsler’s groundbreaking 1953 textbook, The Federal Courts and the Federal System.²¹⁸ On roughly three pages in Chapter 7, the book discussed “[e]njoining criminal prosecutions.”²¹⁹ Of the eight cases discussed on those pages, the oldest of them is Ex parte Young. There is no mention of earlier cases in which federal courts halted unconstitutional state criminal law enforcement. The authors analyzed Douglas v. City of Jeannette,²²⁰ a 1943 case in which the Supreme Court declined to issue an injunction against a religious practice ordinance.²²¹ The rationale was that the plaintiffs failed to show a great and immediate risk of “irreparable injury,” given that the legal action against them was initiated lawfully and in good faith.²²²

Following the publication of the seminal textbook—known today as simply “Hart and Wechsler”²²³—some criminal abstention narratives have continued to position Ex parte Young as the initial point of discussion in academic circles. When Ex parte Young is treated as the starting point, scholars explore cases like Douglas, where the Supreme Court refrained from issuing an injunction, and cases like American Federation of Labor v. Watson, where an injunction was indeed granted.²²⁴ Consider, for example, two important pieces of federal scholarship from the 1970s: Owen Fiss’ article entitled “Dombrowski”²²⁵ and Douglas Laycock’s “The Cases Dombrowski Forgot.”²²⁶ Both articles scrutinize the Court’s portrayal of its involvement in the 1965 Louisiana state criminal case.²²⁷ Fiss, who served as a clerk for Justice Brennan during the drafting of Dombrowski, contended that the decision provided little in the way of clear principles or guidelines to extend such injunctions beyond a narrow scope of cases.²²⁸ Laycock argued that in Dombrowski, justices neglected or ignored a series of cases that followed Ex parte Young.²²⁹

One noteworthy dimension of both articles is that even as they critique the Supreme Court for insufficiently addressing earlier federal judicial interventions into states’ criminally adjacent illegalities, cases that predate Ex parte Young are not discussed in detail.²³⁰ Laycock and Fiss’s accounts have played an important role in subsequent, recent scholarship that similarly reaches back no earlier than Ex parte Young when discussing the Supreme Court’s record of intervention in criminal and quasi-criminal cases.²³¹

3. Post-Younger Period

The scope of criminal abstention—as discussed by litigants, courts, and commentators—continues to be narrowly focused. Pre-Younger cases simply do not feature heavily in discussions about the proper reach of criminal abstention. In legal analyses, such as the Fifth Circuit’s opinion in Daves, jurists meticulously analyze the wording, scope, and intentions of case law from the brief era surrounding the Younger decision.²³² In the Fifth Circuit’s telling, the Supreme Court once intrusively weighed in on “social justice and personal rights”²³³ in settings like schools and inhumane carceral sites. Younger, according to Daves, interrupted federal courts’ tendency to aggressively enforce civil rights in these types of settings, using equitable principles and comity as a means of reining in such courts.²³⁴

Narratives matter. And at a juncture where criminal abstention is being applied in new and significant ways, a broader historical perspective could be beneficial for courts. The following Part delves into this extensive background.

II. Development of Criminal Abstention and Its Exceptions

This Part destabilizes accounts that treat Younger as a groundbreaking, catalyst moment for criminal abstention; or that treat Ex parte Young as the groundbreaking, catalyst moment for equitable relief against collateral criminal proceedings. Specifically, the Part delves into cases from the century and a half leading up to Ex parte Young and examines how courts addressed their role in applying principles of equity to criminal prosecutions. Much of the focus is on decisions by federal courts after the Fourteenth Amendment’s ratification and the subsequent broadening of federal question jurisdiction in Article III courts. Additionally, this Part shines a secondary focus on cases that predate the Fourteenth Amendment or that originate from state or English chancery courts to the extent they help elucidate the meaning of concepts like adequacy and irreparable harm.

The opinions discussed in this Part reveal the role that concepts like adequacy and irreparable harm played in structuring federal courts’ approach to this legal setting. Courts generally did not block collateral criminal prosecutions; however, this section illustrates ways in which some courts nonetheless did so if the plaintiff seeking relief would otherwise face great and immediate irreparable harm. The underlying state forum’s adequacy also mattered. For example, prosecutions rooted in bad faith or harassment were not entitled to the presumption that the state criminal case provided an adequate forum. Moreover, a forum was inadequate if the plaintiff would experience great and immediate harm before having an opportunity to raise the claim in the underlying state court forum.

A. Origins of Criminal Abstention and Its Exceptions

1. English Chancery Courts

Distinguished equity scholars and renowned jurists often trace the origins of equity in criminal law back to the fourteenth century, under the reign of Richard II.²³⁵ As Edwin Mack once observed, “the Court of Chancery in its earliest period designedly assumed jurisdiction to protect persons and property from violence.”²³⁶ England during Richard II’s reign was “in a turbulent and restless state,”²³⁷ rife with riots and other breaches of the peace. Consequently, many suits from this period were initiated to maintain peace and deter criminal activity.²³⁸ For example, in Thomas Saintquintyn v. Roger de Wandesford, decided in the 1390s, a plaintiff sued a defendant who allegedly attempted to ambush and murder the plaintiff and battered the bailiffs who came to arrest the defendant and his co-conspirators. The plaintiff asked the chancery for a “remedy in safeguard of the peace.”²³⁹ Similarly, in 1388, a plaintiff sued defendants who “came by night with force and arms” into his house and assaulted his servants.²⁴⁰

According to Mack, equity jurisdiction “was always unpopular; and gradually, as the government became more stable and the courts of law more efficient, the need for a criminal equity lessened, and little by little the chancellor’s criminal jurisdiction fell off, until finally toward the end of the fifteenth century its exercise ceased entirely.”²⁴¹ Further, even the more limited role the Court of Chancery played in criminal law came to be controversial during the seventeenth century, given the court’s cooperation with the authoritarian, deeply unpopular Star Chamber.²⁴²

By the eighteenth century, the jurisdiction of chancery courts became more fixed, and they ceased attempting to enforce criminal law.²⁴³ And so, over time, a court that once directly engaged criminal matters came to expressly disavow that role.²⁴⁴ This disavowal came in two distinct forms of what Aditya Bamzai and Samuel L. Bray have called “ ‘equity will not’ doctrines.”²⁴⁵ First, “[e]quity will not enjoin a crime.”²⁴⁶ Second, equity “will not enjoin a criminal proceeding.”²⁴⁷ For instance, in the 1737 Mayor of York v. Pilkington case, Lord Hardwicke referenced the chancery courts’ lack of authority to restrain criminal prosecutions.²⁴⁸ Later, when American courts of equity adopted this principle,²⁴⁹ they were drawing from this English precedent.²⁵⁰ In the American system, the doctrine also came to include abstention from quasi-criminal prosecutions.²⁵¹

Meriting further investigation are instances where courts, despite the general rule, issued injunctions that disrupted or halted criminal and quasi-criminal prosecutions. Indeed, Mayor of York v. Pilkington not only exemplifies the general rule against halting criminal prosecutions by chancery courts but also highlights exceptions.²⁵² In the century that followed, American courts sitting in equity intervened in criminal matters,²⁵³ quasi-criminal matters,²⁵⁴ and illegal enforcement of criminal debt.²⁵⁵

2. State Courts

Balancing the general rule against intervention with other considerations occurred in state courts in some instances. In these occurrences, state courts granted equitable remedies that, though relating to matters arising in criminal contexts, did not directly impede criminal or quasi-criminal prosecutions. Consider, for example, the disparate results from the Alabama Supreme Court in two cases, decided within two years of each other, about the proper scope of equitable remedies during the mid-nineteenth century. In Burnett v. Craig, that court declined to enjoin an allegedly invalid ordinance’s prosecution.²⁵⁶ The court observed, “We have not been able to find any principle or adjudged case, which justifies an injunction to stay a prosecution, either criminal or quasi criminal; or to restrain a trespass to the person or personal property.”²⁵⁷

However, three years later in Withers v. State, that same court was asked to review a writ of mandamus—an equitable remedy—that a circuit court directed toward quasi-criminal prosecutions.²⁵⁸ In that case, the arrestees were charged with violating a criminal law and a city ordinance in a municipal court. The municipal court refused to allow their attorney to make an appearance on their behalf or on behalf of any other criminal defendant tried in that forum. According to these arrestees’ attorney, the municipal court’s denials were “reckless and high-handed violations of the constitutional rights of the said persons for whom he appeared as counsel, by which they were deprived of the sacred right of defense by counsel of their own choosing, and were deprived of their liberty and property on an ex-parte hearing.”²⁵⁹ In addition to violating these arrestees’ rights, the attorney also alleged that the refusals violated his own “chartered right to practice in all the courts of [Alabama].”²⁶⁰ The Alabama Supreme Court agreed, granting the writ of mandamus and instructing local officials to permit the attorney to appear.²⁶¹

Criminal abstention has long impacted courts’ capacity to restrain criminal prosecutions. The Withers case suggests that, while judges respected this constraint, they sometimes felt empowered to correct incidental grave and immediate illegalities in criminal trials.

3. Federal Courts

Federal courts have long been tasked with balancing the equitable default rule of criminal abstention against other principles of judicial access. Prior to the Fourteenth Amendment, there was likely little reason for federal courts to weigh these issues extensively. The case of Osborn v. Bank of United States did raise important questions of equity and federalism, as the Court affirmed a lower court’s injunction against the State of Ohio’s unconstitutional tax-enforcement regime.²⁶² However, while this case presents a significant challenge to the most aggressive free-floating federalism arguments, it does not directly address enjoining criminal prosecution or enforcement. Another pre-Fourteenth Amendment case raising similar principles is Ex parte Fleming, which describes a federal judicial injunction preventing the arrest of a defendant authorized by a state court.²⁶³ Yet, this case too appears to be somewhat of an outlier. The basis of the federal court’s jurisdiction is not apparent from the facts outlined in the opinion. Moreover, the court characterized the arrest for failure to pay a debt as civil—rather than criminal—in nature, further distinguishing it from more typical criminal abstention scenarios.

After the passage of the Fourteenth Amendment, however, the occasion for federal courts to consider the constitutionality of various state criminal proceedings on due process and equal protection grounds increased considerably.²⁶⁴ Federal courts were asked to enjoin state officials from enforcing unconstitutional criminal statutes on matters ranging from lotteries²⁶⁵ to liquor²⁶⁶ to railroads²⁶⁷ to race relations.²⁶⁸ This paved the way for significant twentieth-century judicial interventions, including the Ex parte Young case in 1908 and its progeny. Across these dramatically varied historical contexts, there is evidence that federal courts intervened when (1) the underlying criminal proceeding was an inadequate site to raise one’s legal objection; and (2) when significant, immediate, irreparable harm would otherwise befall the litigant. The following sections discuss those settings, which echo themes in earlier English and state cases.

B. Inadequacy

1. Bias and Bad Faith

Most accounts today trace the bad-faith exception to the 1965 case Dombrowski v. Pfister.²⁶⁹ In that case, police and prosecutors’ incessant arrests of civil rights workers under an unconstitutional Louisiana law justified federal intervention.²⁷⁰ However, the bad-faith exception has been deployed for at least 250 years.²⁷¹ As for the bias exception, the leading citation today is Gibson v. Berryhill, decided two years after Younger.²⁷² In that case, the Supreme Court held that the doctrine of abstention should not be applied when the decisionmaker in the underlying state proceeding is biased.

Bias, however, has served as a basis for intervening in criminal prosecutions for centuries. The longstanding nature of the bias exception is apparent from the 1742 Pilkington case.²⁷³ In that case, the town of York and Sir Lionel Pilkington sought a chancery court’s determination as to which party had exclusive fishing rights in the Ouse River.²⁷⁴ Meanwhile, Sir Pilkington faced an indictment by the town’s municipal corporation for allegedly illegal fishing.²⁷⁵ Lord Hardwicke, while recognizing the general prohibition on restraining criminal prosecutions, halted the prosecution pending further legal proceedings, noting the potential impact on the accused’s “civil right[s]” given that the accusers were also the judges in the city’s criminal proceeding.²⁷⁶

A biased tribunal partially justified Lord Hardwicke’s intervention. In temporarily prohibiting a prosecution from continuing and issuing the practical equivalent of a modern show-cause order, Lord Hardwicke observed, “If it could be made appear at law, that the plaintiffs were both judges and parties, it might come out to be coram non judice,” or, in English, void for lack of proper legal authority to adjudicate.²⁷⁷

Following the Fourteenth Amendment’s passage over a century later, federal courts intervened in a different, but related context: settings in which those prosecuting an action were engaging in criminal prosecutions as a means of harassing individuals. In M. Schandler Bottling Co. v. Welch, a Missouri-based corporation initiated legal action against the acting county attorney and acting sheriff of Shawnee County, Kansas.²⁷⁸ The lawsuit accused them of conspiring to “unlawfully oppress, impede, and obstruct” the company’s operations with the intention to force the business out of the county.²⁷⁹ According to the plaintiff, under the guise of state authority, the county attorney and sheriff orchestrated the repeated arrest, imprisonment, and prosecution of the company’s agents.

Furthermore, the sheriff and county attorney allegedly imposed excessive and unreasonable bail, forced the agent’s detention in jail, and repeatedly recharged them under seemingly new but essentially identical accusations upon their release via habeas corpus writs.²⁸⁰ The plaintiff sought an injunction “temporarily restraining and prohibiting” county officials “from instituting or prosecuting civil or criminal actions against said agents.”²⁸¹

A federal court granted the injunction. The court observed the “general rule” against enjoining criminal prosecutions but noted that “the rule has its exceptions.”²⁸² These exceptions were triggered “where a threatened criminal proceeding is hostile, vexatious, and unwarranted, and involves the wanton destruction of or injury to property interests of the accused; and especially so under circumstances where, if permitted to proceed, the party injured would have no adequate remedy at law for restitution.”²⁸³ Relying on Section 1983, the court used its equity power to protect the constitutional rights at stake.²⁸⁴

Harassment prevention also supported a federal court’s intervention in State v. Lagarde.²⁸⁵ The State of Louisiana initiated the federal lawsuit through its attorney general and commissioner of agriculture against an out-of-state fertilizer company named E. Lagarde & Son, accusing them of selling commercial fertilizers without adhering to the requirements set forth in Louisiana law.²⁸⁶ In their suit, the state officials alleged that the business owed fines for multiple violations of the law, resulting in a significant sum of money owed to the state.²⁸⁷ E. Lagarde & Son responded with a cross bill, arguing that the law burdened interstate commerce and was designed primarily to generate revenue on the backs of out-of-state companies.²⁸⁸ They sought an injunction to prevent the state from enforcing this act against them, claiming it would unjustly disrupt their business and cause irreparable harm. As the court explained, the company contended that state officials were “threatening and intending to harass and annoy the complainants with civil and criminal prosecutions under the said act until they shall pay the revenue demanded, or be compelled to abandon their business.”²⁸⁹ The federal court agreed with the business, enjoining “the board of agriculture, its members, officers, agents, and attorneys” from instigating, instituting, or prosecuting the business under Louisiana’s purportedly protectionist law.²⁹⁰

2. Timeliness

The timeliness exception—that is, the requirement that a state provide a timely opportunity to raise federal objections in the face of grave, irreparable harm—recently received significant scrutiny from the Fifth Circuit.²⁹¹ This exception is most associated with language and reasoning in Gibson v. Berryhill and Gerstein v. Pugh.²⁹² But the intuition is much older. As observed, courts intervened when a plaintiff faced great and “immediate” harm. What is the legal significance of immediate harm if immediate relief is unattainable? Implicit in the word “immediate” is prompt. The goal has always been to furnish litigants with the means to avert harm before its occurrence, rather than make them endure it and later pursue legal remedies. Courts are empowered to halt ongoing immediate harm but are powerless to reverse harm that has already transpired. Federal courts intervened, then, when a plaintiff would suffer grave irreparable harm before having an opportunity for redress.

This principle was exemplified in Tuchman v. Welch, decided in 1890.²⁹³ That case was a companion case to M. Schandler Bottling Co. v. Welch, the facts of which have been discussed.²⁹⁴ In Tuchman, Kansas officials illegally used arrests to burden the sale of alcohol imported from out-of-state. Concluding that an injunction was necessary to stop the harassment, the court explained why other remedies, including habeas, were insufficient. The writ of habeas corpus, for example, was insufficient because state officials would be permitted three days to discharge the plaintiff. The court observed that when the plaintiff in that case had previously been successfully discharged on a writ of habeas corpus, state officials waited three days in each instance before discharging him.²⁹⁵ Accordingly, “the applicant, guilty or innocent, is kept in jail during this period before he can have a hearing and secure his liberty. So that, if he is to be remitted to that remedy which is the most expeditious known to the law side of the court, it is most inadequate.”²⁹⁶

Notably, the Supreme Court also embraced the view that the underlying state proceeding must provide adequate opportunity to redress grave federal constitutional harm. In the case of Smyth v. Ames, discussed in greater detail below, the Supreme Court expressly rejected the view advanced in contemporary litigation that federal courts should abstain when a party could have instead brought a collateral civil suit in state court.²⁹⁷

One who is entitled to sue in the federal circuit court may invoke its jurisdiction in equity whenever the established principles and rules of equity permit such a suit in that court; and he cannot be deprived of that right by reason of his being allowed to sue at law in a state court on the same cause of action.²⁹⁸

C. “Great and Immediate” Irreparable Harm

In Younger v. Harris, the United States Supreme Court stressed that, for federal courts to interfere with state prosecutions, the plaintiff must show “irreparable injury,” the traditional prerequisite to obtaining an injunction; moreover, the irreparable injury must be “both great and immediate.”²⁹⁹ This injury must be more than “the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution.”³⁰⁰ These principles are older than either Ex parte Young or Younger.³⁰¹ Long before, courts—including federal courts—issued equitable remedies when a plaintiff faced great and immediate irreparable harm.

Wood v. City of Brooklyn illustrates this principle for state courts.³⁰² There, the then-city of Brooklyn, New York enacted an ordinance that prohibited liquor sales on Sundays. The ordinance authorized “a justice to impose a fine upon any person arrested and brought before him for the violation of any ordinance, by law, or regulation of the common council.”³⁰³ An innkeeper who was arrested under the law sought an injunction, preventing the ordinance’s enforcement.³⁰⁴ He challenged the law on two grounds. First, he contended the ordinance violated state law.³⁰⁵ Second, he objected to the law imposing a fine without a jury trial.³⁰⁶

A New York trial court granted the injunction. It acknowledged that in most circumstances, a “court of equity ought not to interfere to protect anyone from the consequences that might result from a future violation by him.”³⁰⁷ Here, however, circumstances warranted intervention as he faced severe harm without an adequate alternative means of redress. The court explained:

[T]he business by which he earns a livelihood for himself and his family, [was] seriously and constantly injured [and] he apprehends from the course pursued by the officers of the city, that he may be illegally arrested on a Sunday, while engaged in his lawful pursuits, and confined, without the privilege of procuring bail, until the next day, and then be subjected to a hasty trial, without the benefit of a constitutional privilege, and all under an illegal ordinance.³⁰⁸

In the court’s view, only an injunction would provide adequate redress. Accordingly, the court enjoined the city from enforcing its ordinance as applied to licensed innkeepers and Sunday customers.³⁰⁹

This case serves as an informative illustration of various forms of irreparable harm warranting equitable intervention. Initially, the court acknowledged the fundamental right to pursue a livelihood. In addition, it recognized personal dignity interests, specifically the distress of arrest and the subsequent inability to obtain bail. Furthermore, the city could cause this harm without providing any chance for the accused to contest it during the initial proceedings. The inability to effectively challenge the criminal law compounds the issue. Similarly, there were no sufficient means to dispute pretrial detention, as the individual arrested lacked the ability to arrange for bail.³¹⁰

The following sections delve deeper into cases that echo these concerns by way of federal cases challenging state criminal laws, with an emphasis on federal decisions during the last quarter of the nineteenth century. The question of how to balance traditional equitable considerations, comity, and rights were particularly salient during that era given three major legal changes. First, the adoption of the Fourteenth Amendment resulted in the creation of new rights that states could not legally breach.³¹¹ Second, Congress’ adoption of federal question jurisdiction in 1875 meant an increased role for federal courts in deciding questions of federal constitutional rights.³¹² Third, Congress adopted the provision now known as Section 1983 in the 1871 Ku Klux Klan Act, creating a private cause of action against those who, acting under the color of state law, violate federal rights.³¹³ And notably, as Professor Gene Nichol has concluded, “the overwhelming weight of evidence suggests that [Section 1983’s] framers sought to provide a federal cause of action to remedy miscarriages of justice at the hands of state jurists.”³¹⁴ It is perhaps unsurprising, then, that federal courts in the decades after Reconstruction found themselves confronting the constitutionality of some state prosecutions. Federal judges were tasked with balancing prudent restraint against civil rights.

1. Deprivation of Property and Ability to Earn a Living

During the Lochner Era, many of the cases that turned equitable intervention into criminal prosecutions, like Wood, involved instances of interference with one’s ability to earn a living or other related property interests.³¹⁵ Federal intervention was warranted, for example, in Louisiana State Lottery Co. v. Fitzpatrick.³¹⁶ In that 1879 case, the Louisiana State Lottery Company, along with individuals from Mississippi and New York, filed a lawsuit against thirteen Louisiana citizens and the city of New Orleans. The lawsuit centered on an 1868 Louisiana law that established the Louisiana State Lottery Company to increase state revenues and combat economic losses caused by residents purchasing out-of-state and foreign lottery tickets.³¹⁷ This law granted the company exclusive rights to operate lotteries, required it to pay $40,000 annually to the state for education, and exempted it from other taxes.³¹⁸ The company, which had invested significantly in its operations, challenged an 1879 law that repealed its charter and made its operations illegal; the company argued this repeal violated the federal constitution by impairing the contract between the state and the company.³¹⁹ Under that law, continuing to operate the lotteries had become punishable by imprisonment or fine.³²⁰ The lawsuit asked the court to declare the repeal unconstitutional and to prevent state officials from enforcing it against the company’s operations.

The court granted the injunction.³²¹ Like other courts from the era, it acknowledged the general rule “that the court of chancery does not deal with matters of crime, misdemeanors, offenses against prohibitory laws, nor questions of mere morality.”³²² However, this general rule came with an exception³²³: After surveying precedent cases from English chancery courts and the United States Supreme Court, this court concluded, “[c]ircumstances may confer a jurisdiction . . . [w]here a party, under color of title, proposes to inflict irreparable mischief, and the recovery of damages is inadequate or uncertain, and the protection of the specific right is a surer mode of doing justice, an injunction will issue.”³²⁴ The court concluded that property rights were among the class of irreparable harms that justified an injunction in the criminal context. The Court cited Springhead Spinning Co. v. Riley, in which a vice chancellor reasoned:

The jurisdiction of this Court is to protect property, and it will interfere by injunction to stay any proceedings, whether connected with crime or not, which go to the immediate, or tend to the ultimate, destruction of property, or to make it less valuable . . . for use or occupation.³²⁵

The Court also relied on the landmark Osborn v. Bank of United States, in which the Supreme Court enjoined the auditor of Ohio from enforcing an unconstitutional tax. In the court’s view, the case before it was analogous to Osborn.³²⁶

The United States Supreme Court confronted similar questions about federal equity jurisdiction in Smyth v. Ames.³²⁷ In a series of lawsuits filed on July 28, 1893, various shareholder groups from different states and countries, including Massachusetts and England, challenged the constitutionality of an 1893 Nebraska law that regulated railroad operations within the state.³²⁸ This law sought to classify freight, establish maximum transportation rates, and impose penalties for violations. The plaintiffs sued both the railroad companies in which they were shareholders and Nebraska state officials who formed the state board of transportation. The plaintiffs argued that the law infringed upon the railroads’ rights to set their own transportation rates.³²⁹ As in other similar cases during the Lochner Era, these plaintiffs contended that the law’s limit on the railroads’ ability to earn a fair return was unconstitutional.³³⁰ A federal court in Nebraska ruled for the plaintiffs, permanently enjoining the state board from enforcing the law. The injunction prevented Nebraska state officials “from instituting or prosecuting or causing to be instituted or prosecuted any action or proceeding, civil or criminal, against either of said companies or their receivers for” violating the new state regulation.³³¹ The United States Supreme Court affirmed.³³²

Property rights also guided the United States Supreme Court’s interventions in Reagan v. Farmers’ Loan & Transportation Co. and Dobbins v. Los Angeles.³³³ In the former, the Court affirmed an injunction against enforcing railroad rates that allegedly violated federal due process rights. The latter, decided on direct appeal, reversed the California Supreme Court’s denial of an injunction prohibiting the enforcement of a city ordinance that also allegedly interfered with property rights. “[T]he exercise of the police power is subject to judicial review[,] and property rights cannot be wrongfully destroyed by arbitrary enactment.”³³⁴ In the Court’s view, Los Angeles’s enforcement of a utilities ordinance arbitrarily undermined such rights. All of these cases set the groundwork for the venerable Ex parte Young doctrine.³³⁵

2. Liberty

Federal courts have also long recognized the need for equitable intervention in criminal and quasi-criminal cases that implicate irreparable dignitary harms such as deprivation of liberty without due process. Consider the aforementioned 1890 case of Tuchman v. Welch.³³⁶ As described, the state procedure was insufficient to prevent the irreparable harm that the litigant sought to end. That great and irreparable harm? As in many contemporary civil rights cases, the plaintiff complained of being “kept in jail during this period before he can have a hearing and secure his liberty.”³³⁷

In Ex parte Young, the Court recognized that escalating fines and potential jail time amounted to deprivation of liberty that constituted a great and irreparable harm.³³⁸ The severe penalties imposed by the Minnesota railroad rate statutes effectively prevented companies from challenging the laws’ constitutionality in court.³³⁹ The Court acknowledged that officers and employees could not reasonably be expected to risk such penalties to test the law’s validity. The threat of cumulative sanctions and jail as a cost for testing the law in a state proceeding was deemed too great a harm for federal equity to countenance.³⁴⁰

Ex parte Fleming is an earlier case that also bears mention.³⁴¹ In that 1843 case, a New York Supreme Court of Judicature judge noted that a federal district court judge had enjoined the state from incarcerating an individual for failure to pay a debt. The New York Supreme Court complied with the injunction.³⁴² The facts provided about the precise circumstances of the federal court’s intervention are scant and perhaps even puzzling, given the case predates the Fourteenth Amendment. This ruling was consistent, however, with a New York Supreme Court of Judicature ruling issued a decade earlier in Townsend v. Morrell.³⁴³ In that case, the court issued a writ of mandamus to prevent further the erroneous arrest of a debtor in violation of the Non-Imprisonment Act.

3. Equal Dignity

In the previously discussed cases, courts explicitly addressed the general rule against intervening in collateral criminal prosecutions and the justifications for deviating from this principle. However, there exists another set of cases that, despite not being expressly discussed by this rule, merit examination. These cases emerged during a period of intense discrimination and violence against Chinese Americans in the late nineteenth century. This era witnessed a surge of anti-Chinese sentiment manifesting in both physical aggression and systemic oppression.³⁴⁴ One of the most egregious examples, described as “one of America’s worst hate crimes,” occurred in 1871 when a mob ravaged Los Angeles’s Chinatown and murdered eighteen Chinese men and boys.³⁴⁵ At the federal level, Congress enacted the Chinese Exclusion Act of 1882, marking the first instance of legislation specifically designed to bar a particular ethnic group from entering the United States.³⁴⁶ This act explicitly targeted Chinese laborers, prohibiting their immigration.³⁴⁷ In the years that followed, the violence further escalated. In the Fall of 1885, white miners launched an attack on Chinese miners in Rock Springs, Wyoming. This assault claimed approximately twenty-eight lives and forcibly displaced hundreds of Chinese miners from the town.³⁴⁸ Concurrently, San Francisco implemented a series of discriminatory laws aimed at subjugating, segregating, and humiliating Chinese residents and business owners within the city.³⁴⁹

While federal courts refused to intervene with respect to the federal government’s shameful acts during that period,³⁵⁰ those courts were much more hospitable to challenges against local anti-Chinese laws that used criminal law to establish racial subjugation. For example, San Francisco enacted a criminal ordinance limiting the areas where Chinese residents could own and operate businesses.³⁵¹ The law stated that any Chinese person living, locating, or doing business in San Francisco outside the designated areas would be guilty of a misdemeanor and, if convicted, could be imprisoned for up to six months.³⁵² Several individuals arrested under this ordinance filed a federal lawsuit while their criminal cases were pending, seeking release and a declaration that the San Francisco law was void and unconstitutional.³⁵³ In the case of In re Lee Sing, Ninth Circuit Judge Lorenzo Sawyer ruled in favor of the petitioners, noting the widespread harm that would occur without judicial intervention: “This, besides being discriminating, against the Chinese, and unequal in its operation as between them and all others, is simply an arbitrary confiscation of their homes and property, a depriving them of it, without due process or any process of law.”³⁵⁴ Citing precedent, including the landmark Yick Wo v. Hopkins, Judge Sawyer ordered the petitioners be released from custody. ³⁵⁵ He also declared the ordinance void as it directly conflicted with the Constitution, treaties, and statutes of the United States.³⁵⁶

In another case, Wong Wai v. Williamson, Chinese residents sought to enjoin San Francisco from imprisoning them for refusing to be injected with serum called the “Haffkine Prophylactic.” ³⁵⁷ In the early 1900’s, the City of San Francisco issued an order that all Chinese residents of the city must receive this serum to inoculate them from the bubonic plague.³⁵⁸ A plaintiff brought a lawsuit on behalf of himself and some 25,000 residents of San Francisco who faced potential imprisonment if they did not submit to the board of health’s order. He sought an injunction preventing the city from “imprisoning, restraining, or confining” Chinese residents for failing to receive this injection.³⁵⁹ Supported by medical evidence, the resident alleged that the injection “produces a severe reaction, and causes great pain and distress generally, a sudden and great rise of temperature, and great depression, which sometimes continues, increasing in severity, until it causes death.”³⁶⁰ Moreover, they alleged that, in comparison to another prophylactic, the Haffkine was both exceptionally dangerous and highly ineffective.³⁶¹ As such, they contended that the city’s policy “discriminates unreasonably against the complainant and other Chinese residents, confines them within the territorial limits of the city and county, and deprives them of their liberty, causing them great and irreparable loss and injury.”³⁶²

A three-judge panel ruled in favor of the plaintiffs, granting the injunction and highlighting the discriminatory nature of the regulations, which exclusively targeted Asian residents.³⁶³ The court noted the ordinance’s arbitrary basis, pointing out that it did not consider factors such as previous residence, lifestyle, exposure to disease, or physical condition for its enforcement.³⁶⁴ The regulations imposed travel restrictions on Chinese individuals—both U.S. born and those born abroad—that were not applied to any other group, thereby harming them illegally.³⁶⁵

These judicial declarations and injunctions complicate the narrative that federal courts were, until recent decades, traditionally absent in addressing systemic illegalities within state criminal justice apparatuses. Moreover, a significant portion of federal courts’ institutional legitimacy and moral authority derives from their transformative role in dismantling entrenched systems of racial caste, most notably during the tumultuous Civil Rights Era.³⁶⁶ The abdication of responsibility in confronting these egregiously discriminatory, anti-Chinese legal regimes would have constituted not merely a procedural oversight, but would likely be viewed today as a profound and unconscionable dereliction of justice—a failure that would echo the moral catastrophe of federal inaction in the face of Jim Crow’s brutal reign in cases like Plessy v. Ferguson.³⁶⁷

Indeed, In re Lee Sing and Wong Wai can be contextualized within a broader laudable tradition of federal courts intervening in state and local criminal regimes that discriminated against Chinese Americans during that era. One important, well-known example is Yick Wo v. Hopkins.³⁶⁸ In that case, Yick Wo petitioned the California Supreme Court for the writ of habeas corpus, contending that the sheriff was holding him on the basis of an unconstitutional law.³⁶⁹ Wo allegedly violated a San Francisco law that targeted Chinese-owned businesses with remarkable precision by imposing restrictions on laundromats. It was a crime to operate a laundry business without the Board of Supervisor’s permission, but the permission was only granted to white-owned businesses.³⁷⁰ Upon conviction, Yick Wo was sentenced to pay a $10 fine and to remain “imprisoned in the county jail at the rate of one day for each dollar of fine until said fine should be satisfied; and a commitment in consequence of non-payment of said fine.”³⁷¹ When the California Supreme Court denied his petition, the United States Supreme Court reversed. It found that the San Francisco laundry ordinance, despite being race-neutral on its face, violated the Equal Protection Clause.³⁷²

In each of these cases, federal courts intervened to remedy egregious racial discrimination in local criminal and quasi-criminal proceedings. In Wong Wai, the systemic nature of the discrimination did not preclude federal intervention, as evidenced by the court’s willingness to hear a suit representing 25,000 plaintiffs. Furthermore, in In re Lee Sing, pending state charges did not deter federal court intervention, demonstrating the judiciary’s crucial role in addressing irreparable harm when state remedies prove insufficient.

D. Habeas

For over 800 years, litigants have used the writ of habeas corpus to obtain their freedom from unlawful custody. The writ undoubtedly straddles the line between a remedy at law and at equity, given the role chancery courts shared in dispensing this remedy. In 1845, William Sewell cited Lord Coke and Lord Hale for the proposition that “an habeas corpus in criminal cases may issue out of the Chancery at all times of the year, even in the vacation; but that at common law neither the King’s Bench nor Common Pleas could grant that writ but in term time.”³⁷³ Put differently, the King’s Bench and Common Pleas could only provide the remedy during specified times, whereas the chancery’s ability was not so limited. In the words of one New York judge in 1826, “[a] court of equity is always open.”³⁷⁴ However, given the core role of courts of law in its historic enforcement, habeas is ultimately considered a remedy at law.³⁷⁵

In one important, recent Ninth Circuit case, government officials urged federal courts to avoid entertaining a habeas suit challenging the constitutionality of a system that illegally jailed people by imposing bail amounts without regard to one’s ability to pay.³⁷⁶ The district court had concluded that Younger abstention blocked the ability of federal courts to entertain the habeas suit.³⁷⁷ And while the Ninth Circuit reversed, citing the great and irreparable harm that would result from abdicating its federal constitutional role,³⁷⁸ the district court’s conclusion is reason enough to explore the role of federal habeas in nineteenth century criminal proceedings in settings that resemble today’s civil rights suits.

During the studied period, attorneys used the federal writ to secure freedom for litigants in local custody for failure to pay a fee or fine.³⁷⁹ In Ex parte Stricker, Sidney G. Stricker, an attorney, was confined in a Kenton County, Kentucky jail.³⁸⁰ He sought his release through a habeas corpus writ filed in a federal circuit court. He claimed his detention violated his federal due process rights. The dispute arose when Stricker attempted to initiate an election of a “special judge.” Under Kentucky law, the election of a special judge was allowed when the regular judge was away for a substantial period. However, Stricker’s request was denied by the court clerk. Worse, upon the regular judge’s return, Stricker was fined $25 for contempt of court for his efforts to elect a special judge in the regular judge’s absence, despite Stricker’s efforts complying with Kentucky statutes and his client’s demands. Stricker was denied a hearing and the opportunity to defend himself before being fined and subsequently jailed for nonpayment.³⁸¹

The federal circuit court granted Stricker’s habeas petition, ordering his release.³⁸² His incarceration for failure to pay a fine without any opportunity to dispute the legality of its imposition required immediate federal relief to vindicate his due process rights. The court emphasized that due process requires that an individual accused of contempt outside the court’s immediate view be entitled to a hearing and the chance to confront witnesses and present evidence before any court takes any punitive action. Stricker was denied these opportunities. The court disavowed that it had any “desire to interfere with or to control the conduct of any judge of any court in Kentucky.”³⁸³ But given the imprisonment of the litigant “[f]or some months” without a meaningful opportunity to challenge his detention in state court unless he paid the $25, the court concluded that it “must decide [the issue], or the constitutional guaranty to the citizen may have little value, at least to the petitioner.”³⁸⁴

Stricker’s substantive legal argument should sound familiar, given its resemblance to a significant number of civil rights suits today, as documented in Part I. The reasoning is not new. And during the period in which Stricker’s case was decided, it was not unique. Consider the late nineteenth century Ohio case, In re Moore.³⁸⁵ There, an eighteen-year-old faced a $25 fine, but was “indigent, with no property or means of any kind” to pay the fine.³⁸⁶ Nonetheless, county officials refused to release him, remarking that he had family who “should be willing to help him in this emergency.”³⁸⁷ The court observed that the prisoner’s financial condition constituted an indefinite detention: “How long the [county official] wills this to continue, or by what measurement of time its period is to be computed, he does not say.”³⁸⁸

In granting a writ of habeas corpus, the court expressed some dismay that an indigent person could face indefinite detention for failing to pay a fine he could not afford. As a practical matter, the young citizen was “in jail for life, or at the will of a fellow citizen who fills a public office.”³⁸⁹ This, the court could not permit:

The imprisonment which he is now undergoing, is no longer penalty. It is not punishment for a crime; it is the means used to compel him to acquit himself of the balance of the sentence, viz.: To pay the fine and the costs which the auditor says he cannot do, and has no prospect of being able to do. The law-making power never intended a man to be placed in a situation like this, and the law does not accord to a citizen a right without the means of securing it to him.³⁹⁰

Based on one’s financial condition, one man’s $25 is another man’s $25,000. And, the court warned, “if one man can be thus imprisoned, so can another, and no one can say whose turn will come next.”³⁹¹

III. Common Law Remedies

Some leading theories of equitable relief hold that to faithfully adhere to principles of equity as they were understood in 1789, courts must consider the range of then-available remedies when formulating equitable rules.³⁹² Guided by this insight, this Part provides a high-level summary of when, under common law, plaintiffs could seek legal remedies against sheriffs or justices of the peace to address government misconduct during criminal enforcement. For sheriffs in particular, with great power came great responsibility. At common law, there were at least four contexts in which plaintiffs could seek damages to challenge government officials’ unlawful conduct. First, wrongly arrested individuals could, under limited circumstances, sue sheriffs for false imprisonment. Second, plaintiffs could sue sheriffs and deputies for extortion, which was defined as demanding fees that were not expressly authorized by law or that exceeded the amounts authorized by law. Third, damages actions were permitted against sheriffs for excessive bail. Fourth, jail conditions could result in damages actions by arrestees who suffered “filthy” conditions. Drawing on treatises and cases from the United States and England, this Part will describe each context’s circumstances.

A. False Imprisonment

False imprisonment was a well-established cause of action at the common law, which jurists classified as a form of trespass.³⁹³ Although an officer was not liable for carrying out a warrant or judicial order that was “valid upon its face,”³⁹⁴ government officials could be held liable for false imprisonment under other circumstances. A late-nineteenth-century case helpfully lays out some of the circumstances in which this tort applied.³⁹⁵ A justice of peace or magistrate who authorized an arrest for an offense that he had no jurisdiction over could be held liable.³⁹⁶ This tort also applied when a justice of the peace had jurisdiction, but the underlying proceedings were exceptionally irregular.³⁹⁷ An arrest without a warrant and without probable cause could also result in liability.

There are early American examples of such damages suits being sustained against justices of the peace and sheriffs. For example, in the 1800 case of Percival v. Jones, a justice of the peace authorized the arrest of a man who had a family, despite a law that generally forbade arresting individuals for debt who had families.³⁹⁸ When the arrestee sued, a New York court held that the justice of the peace could be held liable. The arrestee had been “illegally imprisoned,” had “sustained an injury,” and had a cause of action “against the party or his agent who issued the execution.”³⁹⁹ In another example, Stoyel v. Lawrence, a federal court found that a local sheriff was liable for false imprisonment when he arrested a debtor after an order authorizing the debtor’s arrest had expired.⁴⁰⁰ Moreover, arresting a different person than the one listed in the judicial order could result in civil liability.⁴⁰¹ In Griswold v. Sedgwick, a New York court found for Daniel S. Griswold’s false imprisonment claim after officers had arrested him with a court order meant for the arrest of Samuel S. Griswold.⁴⁰² This theory of liability had deep roots in the common law.⁴⁰³

An action for trespass was also historically permitted under circumstances that appear to lack a contemporary analogue. For example, in England during the U.S. Founding era, officers were not generally permitted to arrest individuals on Sunday unless the charge was for a felony, breach of the peace, or treason.⁴⁰⁴ Because a warrant was legally void on that day, an action for false imprisonment was recognized when that rule was breached.⁴⁰⁵ Further, arrestees were entitled the opportunity to spend at least twenty-four hours at home or another safe place before reporting to jail after an arrest.⁴⁰⁶ Failure to offer that opportunity was actionable.⁴⁰⁷

B. Extortion

Another well-recognized tort in the criminal legal context was extortion.⁴⁰⁸ This cause of action took two forms. Under the first form, a sheriff or other governmental agent charged fees that were not directly authorized by law. Under the second, government officials charged a higher fee than was authorized. As one 1844 treatise described, extortion consisted of “the unlawful taking of money or valuable thing by any officer colore officii[] from another, when none at all is due, or not so much is due, or before it is due.”⁴⁰⁹ Despite the treatise’s broad language, cases from the early republic suggest that the law did not apply when additional fees were imposed by mistake. For example, in Respublica v. Hannum,⁴¹⁰ the court found a justice of the peace had not committed extortion because the prosecution did not demonstrate that an intent to “oppress” motivated an excessive fee he imposed. And while that case was decided in the context of a criminal case against the justice of the peace, there is some evidence that in practice, the mens rea for extortion exceeded mere strict liability.⁴¹¹

C. Excessive Bail

Early cases also reveal a civil cause of action for excessive bail.⁴¹² Many of the earliest cases involve allegations of excessive civil bail.⁴¹³ However, courts also recognized a cause of action for excessive criminal bail. For example, in Evans v. Foster, a man charged with the crime of perjury was arrested; his bail amount was set at $2,000.⁴¹⁴ Unable to pay, he “was committed to prison, and suffered great damage.”⁴¹⁵ Deeming this amount excessive and in violation of the New Hampshire Constitution,⁴¹⁶ and even “malicious,” the arrestee sued the sheriff and the justice of the peace for money damages. In the resultant lawsuit, the New Hampshire Supreme Court confronted whether the arrestee was permitted, as a matter of law, to sue these government actors. In addressing this question, the court opened by observing that while “[i]t is not certain, that, as a general principle, civil remedies can be prosecuted for all violations of the constitution,” it nonetheless could “hardly be questioned, that a civil remedy . . . may be sustained for all those violations, which at common law or by statute have been pronounced actionable.”⁴¹⁷

Relying in part on Blackstone’s Commentaries, the court noted that “[t]he offence of denying, delaying or obstructing bail where it ought to be granted was not only known at common law, but was punishable by action at the suit of the party wrongfully imprisoned, as well as by indictment at the suit of the king.”⁴¹⁸ To be liable for this offense, it needed to be “manifest, that either the number or the sum required was unreasonable.”⁴¹⁹ In light of this common law history, the court concluded that a cause of action lay against sheriffs for holding an arrestee while demanding excessive bail. At the same time, the court concluded that given the severity of the offense, the bail amount in Evans was not manifestly unreasonable in relation to other bail amounts.⁴²⁰ Moreover, the court found that a cause of action did not lie against a magistrate who was not involved in setting that bail, as “judicial officers, when acting on subjects within their jurisdiction, are exempted from civil prosecutions for their acts.”⁴²¹

D. Jail Conditions

During the nineteenth century, plaintiffs occasionally filed lawsuits against sheriffs, counties, or municipalities over inhumane jail conditions. The basis of these claims varied, encompassing negligence, state-specific statutes, and constitutional principles. Two pivotal legal inquiries emerged: (1) who was eligible to be sued and (2) for which specific grievances. The first question was at the heart of the 1823 Ohio case, Campbell v. Hampson.⁴²² In this case, an individual detained for unpaid debts sued a local sheriff, arguing that he was illegally incarcerated alongside non-debtor criminals. The court acknowledged that, while the sheriff would typically bear responsibility under common law for that offense, the county was, in fact, liable.⁴²³ Sheriffs, the court reasoned, lacked the authority to construct jails or detain debtors in locations other than the public jail; that responsibility fell to local commissioners. Consequently, the court suggested that the plaintiff should pursue legal action against the county instead.⁴²⁴

In another case, on a frigid Wisconsin night, an officer in Dane County arrested a locomotive engineer for violating a local commission’s railroad-related order. Upon the arrest, the officer took the engineer to the local jail.⁴²⁵ Given the late hour, the engineer could not effectively seek bail and was instead forced to remain in a cell in which the temperature was 15 to 20 degrees below zero, with insufficient bedding. He alleged that the cell was “foul . . . with vermin.”⁴²⁶ Moreover, he alleged that the arrest intentionally took place during the time “most oppressive to the plaintiff.”⁴²⁷ The court viewed these facts as “a great official outrage,” “barbarous in the extreme, and a most flagrant abuse of process.”⁴²⁸ Further, given the arrestee’s alleged offence, his jailing violated a state law that prohibited non-criminals from sharing “the same apartments with felons and other criminals.” Collectively, if true, this amounted to an abuse of process.⁴²⁹

Notably, some jail-conditions cases involved federal courts intervening in local, illegal confinement environments. Consider the case of Ho Ah Kow v. Nunan, which assessed the legality of a racially discriminatory policy.⁴³⁰ There, a Chinese San Francisco resident was arrested for violating a California law prohibiting individuals from living in dwellings with less than 500 square feet per resident. Upon his conviction, he had the option of either paying ten dollars or serving five days in the county jail. When he did not pay the five dollars, he was incarcerated. While incarcerated, he was forced to cut off his queue (a long braid that he wore). Government officials knew that in his culture, the queue was worn as a marker of honor in accordance with his religious faith and customs.⁴³¹

Alleging that the requirement to cut his queue was unconstitutional, he sued the sheriff of San Francisco.⁴³² A federal district court found for Ho Ah Kow, concluding that San Francisco’s actions violated the Fourteenth Amendment and entitled Ho Ah Kow to damages against the sheriff:

[N]othing can be accomplished in that direction by hostile and spiteful legislation on the part of the state, or of its municipal bodies, like the ordinance in question . . . . Against such legislation it will always be the duty of the judiciary to declare and enforce the paramount law of the nation.⁴³³

In another post-Fourteenth Amendment federal case, Edwards v. Town of Pocahontas, a federal court reviewed an arrestee’s allegation that the town of Pocahontas, Virginia acted negligently when “he was unlawfully, wrongfully, and inhumanly treated” while incarcerated.⁴³⁴ He alleged that the jail was “dirty, filthy, and unhealthy.”⁴³⁵ Specifically, the floors were “befouled with human excrement and urine.”⁴³⁶ Moreover, there was nowhere for the arrestee “to sit down, lie down, or sleep,” causing mental suffering and physical illness. The court agreed that these conditions could give rise to liability for negligence.⁴³⁷ Important to the court was that the town could have elected to send arrestees to a more regulated, and presumably safer, county jail; but it chose instead to operate its own, grossly inadequate jail.

IV. Implications

What weight should we give these historical practices in contemporary jurisprudence? Even if current criminal abstention expansions represent a marked deviation from established practices, one might argue that “Our Federalism” provides sufficient justification for such innovations, independent of historical traditions. This Part addresses this question through three lenses: first, the relationship between historical context and principles of equitable restraint; second, the implications for modern federalism doctrine; and third, the contemporary legal frameworks that characterize challenges to criminal legal systems as novel developments. This analysis emphasizes lessons drawn from the post-Fourteenth Amendment era, when courts and Congress crafted a conception of comity that balanced federal rights protection with respect for state sovereignty.

A. Equitable Restraint and Uses of Tradition

Legal arguments over whether to expand criminal abstention pay little regard to history’s surging role in shaping equitable remedies at the United States Supreme Court. In recent years, significant legal scholarship has been dedicated to assessing and critiquing the Court’s use of tradition in that context. Many of these academic inquiries were responses to, and accompanied by, over twenty opinions about the proper scope of equitable relief during a thirty-year period.⁴³⁸ Professor Samuel Bray termed this development “the new equity.”⁴³⁹ This trend may well be escalating, not slowing, since he made that observation a decade ago.⁴⁴⁰ A key catalyst for this “revival”⁴⁴¹ was the Supreme Court’s oft-discussed decision in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., which addressed whether a district court acted within its authority when it issued a preliminary injunction.⁴⁴² What attracted attention was the Court’s methodology in evaluating the injunction deployment of originalism. The Court observed that the 1789 Judiciary Act conferred “an authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.”⁴⁴³ As such, the Court viewed its task as determining what relief “was traditionally accorded by courts of equity.”⁴⁴⁴ Today’s relief is circumscribed by tradition.

While the Court’s approach to and uses of history in Grupo were roundly criticized,⁴⁴⁵ it is abundantly clear that, those criticisms notwithstanding, history and tradition have continued to play a central role in the Supreme Court’s approach to questions about equity’s proper reach. In 2016, Professor Bray humorously observed that in one eight-page opinion, eBay v. MercExchange, L.L.C., the word tradition appeared fourteen times, “the same number of times tradition appears in the first song of Fiddler on the Roof.”⁴⁴⁶ And while those post-Grupo uses of history have faced their share of criticism as well,⁴⁴⁷ there is little reason to believe that the Court’s efforts to turn to history will cease or even decelerate.

Academic interest in the relationship between history and equitable remedies has been further buoyed by the rise in the number of “nationwide” or “universal” injunctions.⁴⁴⁸ On issues ranging from immigration⁴⁴⁹ to discrimination⁴⁵⁰ to birth control,⁴⁵¹ federal courts have enjoined a range of federal policies in ways that directly affect the legal rights and interests of more than just the parties in suit.⁴⁵² These practices have been criticized and defended, both as a matter of history and as a matter of policy.⁴⁵³ Some of these critics are justices on the United States Supreme Court. History features heavily in their critiques.⁴⁵⁴

Enter, criminal abstention. For whatever attention has been paid to history’s relationship to equitable remedies and equitable defenses, less attention has been paid to a third category that sits at the intersection of those two concepts—“Equitable restraint.”⁴⁵⁵ This continued absence of attention might be tolerable if there were not an active push to expand the doctrine in unprecedented ways. But this push, a circuit split on this question, and the importance of the issue all make such absence less tolerable. Few issues affect more lives more intimately.

As criminal abstention expands in the lower courts, the briefing and argumentation is highly focused on cases from a narrow window of time, treating the Younger case as canonical. Plaintiffs rightly identify ways in which Younger’s expansions conflict with the strictures of the Supreme Court’s mandates.⁴⁵⁶ Defendants point to language in O’Shea about comity and avoiding piecemeal disruption of state prosecutions.⁴⁵⁷

In this doctrinal tug-of-war, circuit splits abound.⁴⁵⁸ Supreme Court review seems highly plausible, if not probable. If or when that day arises, briefing about the meaning of footnotes and sentences in opinions from 1970s will meet a court that instead frequently emphasizes longstanding tradition. Broad prudential notions of “comity” will meet a Court that has grown quite skeptical of prudential rules unmoored from the Constitution or statutes. Justices may well have interest in whether lower courts’ expansions of Younger abstention are compatible with tradition.

In the way of legal positivism, two critical aspects of tradition-based analysis shift the weight that can or should be placed on the traditions outlined in this Article. The first is temporality. That is, what time periods are germane when excavating traditions. The most obvious answer is the period before the Founding in English chancery courts, as the Court suggested in Grupo. But that answer is necessarily incomplete given criminal abstention’s evolution into a doctrine about federal courts reviewing state criminal laws. The history and traditions therefore presented in this Article stretch from before the Founding into the beginning of the twentieth century, thus including post-Fourteenth Amendment federal cases. After all, Section 1983—adopted in 1871—authorizes suits in law and “in equity” against state officials who violate federal law. The way courts used equity in the decades before and after its passage provide clues as to how the term would have been understood during that period.

Alongside the temporal question of which periods of tradition are relevant, a second dimension of importance is specificity. If the Supreme Court addresses this issue, will justices be most persuaded by the principles that guided equity in the past, or the specific practices that those courts invoked? The most common view holds that, even if tradition is of vital importance, the principles undergirding those traditional practices matter. Equity jurisprudence is not “completely fixed or static.”⁴⁵⁹ For example, if courts are to be faithful to equity as it existed in 1789, they must be sensitive to what other remedies are available when shaping equitable rules.⁴⁶⁰

With those contingencies in mind, there are at least four positivist accounts that one could draw from the history outlined in this Article. First, applying criminal abstention to cases that have nothing to do with ending a criminal or quasi-criminal prosecution would create an entirely new class of “equity will not” doctrines previously unknown. Today’s proposed expansions should not be treated as continuations of past practices and must be defended on other grounds. For example, the notion that federal courthouse doors must close to claims against state criminal illegalities any time that a state collateral proceeding could be filed instead was expressly rejected by the Court over a century ago.⁴⁶¹ Moreover, while criminal abstention blocked suits that interrupted criminal prosecutions, there is less evidence that equity was without a role in proceedings that did not interrupt criminal prosecutions. This presents a challenge, too, for attempts to expand criminal abstention to a growing range of circumstances. And more broadly, contemporary arguments that comity requires judicial constraint in the face of great and irreparable harm or of inadequate underlying state proceedings, are at war with a robust tradition of federal judicial intervention in those circumstances.

Second, given that equity has historically evolved in relation to other remedies,⁴⁶² equity’s criminal abstention doctrine existed alongside other modes of accountability designed to deter illegal governmental action: such as robust habeas relief,⁴⁶³ damages for false imprisonment, extortion, and excessive bail.⁴⁶⁴ At common law, moreover, sheriffs were responsible for a host of illegal acts under theories of respondeat superior liability.⁴⁶⁵ This contrasts with today’s practices. Respondeat superior is a theory of liability not available in federal constitutional litigation today.⁴⁶⁶ Further, a range of immunity doctrines have developed that impede remedies at law. Stricter limits on the writ of habeas corpus also abound.⁴⁶⁷ These restrictive developments factor against expanding criminal abstention.

Third, some of the core exceptions to criminal abstention have deep roots, especially bias, bad faith, and great, immediate irreparable harm. Federal courts are actively being encouraged to stand down, even in the face of great and irreparable harm. The pedigree of these exceptions should give jurists pause about revisiting any of them.

Fourth and relatedly, past practices provide a basis against which to contextualize contemporary assertions of irreparable injury. Today’s deprivations of physical liberty are not categorically different from irreparable harms asserted centuries ago, that is, pretrial detention and interference with the ability to earn a living. One recent complaint, for example, was filed by a young EMT who recounted how a few years ago, she had lost her job and missed her dad’s funeral while she was incarcerated for 48 days for failure to pay tickets.⁴⁶⁸ Deprivation of liberty for days, weeks, or months at a time negatively interferes with so much else in one’s life. It interferes with one’s ability to earn a living. It interferes with one’s ability to participate in democracy.⁴⁶⁹ It interferes with one’s ability to parent their children. Today’s claims join a long tradition of seeking equitable refuge from intolerably injurious systems.

In appealing to these past traditions, one should be mindful of warnings from historians and anthropologists about the risks of such an endeavor: insufficient nuance⁴⁷⁰ and the potential to reproduce past inequality.⁴⁷¹ Professors Kellen Funk and Sandra Mayson recently uncovered the vast lacuna between the written law of Philadelphia criminal bail and the lived experience of Philadelphians.⁴⁷² And Professor Deepa Das Acevedo has observed that the way law treats the past is often more of an act of anthropology and cultural translation than it is history, given courts’ varied perspectives and experiences at any given time.⁴⁷³ We may be, Professor Acevedo cautions, translating sources marred by undemocratic subordination, given the voices that were silenced in earlier eras.⁴⁷⁴ This Article’s emphasis on history and tradition is not exempt from these concerns due to the extensive scope of this investigation and the limited range of Americans who were historically permitted to contribute to American law’s shaping.

The concerns about historical interpretation are mitigated in two ways. First, this analysis does not seek to determine how “ordinary persons” or “the public” understood contested terms like “cruel” or “liberty” in 1789—terms that enslaved people and enslavers would have interpreted through radically different lived experiences. Rather, it focuses more precisely on documenting specific legal practices and principles from that era. This narrower scope allows for greater analytical precision. Second, while the risk of reproducing historical subordination remains—evidenced starkly in cases where enslavers treated human beings as mere property for bail purposes⁴⁷⁵—we must confront these historical atrocities while acknowledging that tradition remains equity’s most valuable legal currency.

B. Equitable Restraint and Federalism

Borrowing language from Dean John Manning in a different context, Part I of this Article discussed the “freestanding federalism”⁴⁷⁶ and free-floating federalism that have characterized many opinions about criminal abstention. Relying on broad readings of cases like O’Shea v. Littleton⁴⁷⁷ and Middlesex County Ethics Committee v. Bar Ass’n,⁴⁷⁸ some lower courts have invoked notions of federalism and comity to apply criminal abstention to cases⁴⁷⁹ that have nothing to do with stopping “state criminal prosecutions, civil enforcement proceedings, [or] civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.”⁴⁸⁰ Unmoored from any of these categories, criminal abstention drifts further away from traditional principles of equity in the name of states’ rights.

There are compelling reasons to doubt whether this flavor of federalism should defeat traditional equitable principles, especially in the context of Section 1983 suits. Following the United States’ victory in the Civil War, the Reconstruction Congress aimed to provide a robust remedy to correct unconstitutionalities, including harms perpetrated in state courts.⁴⁸¹ Mitchum v. Foster recounts some of this evidence, which held that the Anti-Injunction Act did not bar federal courts from enjoining state proceedings brought under Section 1983.⁴⁸² Mitchum cites a memorable passage from Congressman Aaron F. Perry:

Sheriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the truth or falsify it; grand and petit juries act as if they might be accomplices . . . . [A]ll the apparatus and machinery of civil government, all the processes of justice, skulk away as if government and justice were crimes and feared detection. Among the most dangerous things an injured party can do is to appeal to justice.⁴⁸³

These words came with deeds. In Section 1983, Congress provided for actions at law, suits in equity, and “other proper proceeding[s] for redress,” against “[e]very person” who, under the color of state law, violated federal rights.⁴⁸⁴ Beyond that, Congress created a provision for removal of civil rights suits from state to federal courts when those rights are “denied or cannot [be] enforce[d] in the courts of such State a right under any law providing for the equal civil rights of the citizens of the United States, or of all persons within the jurisdiction thereof.”⁴⁸⁵ This, as Professor Funk notes, “was the most sweeping conferral of federal question jurisdiction on the lower courts until 1875.”⁴⁸⁶ At the same time across the South, the Freedman’s Bureau operated what I will call here “Section 5 courts”; these were courts that allowed Black Americans to bring suit in a federal forum outside Article III for torts and contractual disputes, a remedy designed to deal with discriminatory practices in Southern states’ courts.⁴⁸⁷

At the risk of understatement, the Supreme Court is not known today for its role in protecting federal interests after the Fourteenth Amendment’s passage. The Supreme Court weakened Reconstruction’s full potential, through its crabbed interpretations of the Reconstruction Amendments⁴⁸⁸ and structural rulings as well.⁴⁸⁹ As Professor Robert J. Kaczorowski has written, “[t]he racism, economic self-interest, partisanship, and liberal ideology that characterized the political order of the 1870s promoted a callous disregard among Northern Republicans toward Southern violent oppression of black Americans. The Supreme Court reflected this political order by emasculating the Reconstruction civil rights program in the 1870s.”⁴⁹⁰ Southern Democrats had pressed, after all, that “peace would be restored only when the federal authorities restored law enforcement to the people of the South.”⁴⁹¹

In the face of federal courts’ sapping Reconstruction of its potential potency, it is notable that federal courts across a swath of doctrinal spaces nonetheless recognized that federalism and comity are concepts informed not just by protection of state rights but protection of federal rights, federal prerogatives, and federal supremacy. In Tennessee v. Davis, the Supreme Court recognized that, as a constitutional matter, the State of Tennessee could not prosecute a federal official for doing his job.⁴⁹² In Tarble’s Case, decided in 1871, the Supreme Court held that an individual detained by the federal government or its agents cannot be freed through a state court’s issuance of a habeas corpus writ.⁴⁹³

Many of the injunctions described in this Article are in the tradition of protecting the “federal” in federalism. Over one hundred years ago, the argument was presented to the Supreme Court that federal courts should not hear a matter if it could have been brought in a state court. The Supreme Court decisively rejected that argument⁴⁹⁴:

The adequacy or inadequacy of a remedy at law for the protection of the rights of one entitled upon any ground to invoke the powers of a Federal court, is not to be conclusively determined by the statutes of the particular State in which suit may be brought. One who is entitled to sue in the Federal Circuit Court may invoke its jurisdiction in equity whenever the established principles and rules of equity permit such a suit in that court; and he cannot be deprived of that right by reason of his being allowed to sue at law in a state court on the same cause of action.⁴⁹⁵

This stance not only illustrates the late-nineteenth-century federal courts’ perspective on such arguments but also establishes United States Supreme Court precedent that has not been overturned.

More broadly, during the early enforcement of the Fourteenth Amendment, a time in which federal-state relations were presumably more fragile than today, federal courts did not embrace a notion of comity that focused solely on federal restraint to the exclusion of state accountability. Consider, for example, the injunction issued in a class action brought on behalf of 25,000 individuals to prevent enforcement of San Francisco’s racist penal law in Wong Wai.⁴⁹⁶ In the way of harmony or comity, cases from the era make apparent that federal courts were “aware of the general feeling—amounting to positive hostility—prevailing in California against the Chinese, which would prevent their further immigration hither and expel from the state those already here.”⁴⁹⁷ But enforcing federal rights to prevent grave, irreparable harm mattered more.

A states-rights-only conception of comity was also rejected in Tuchman.⁴⁹⁸ In enjoining an unconstitutional state law, the court addressed the state’s “most earnest appeal” to “leave unmolested the officers of the state in this controversy to proceed through the customary channels of the state courts, leaving the petitioner his remedy, after the final decision in the court of last resort in the state, of appealing to the United States supreme court.”⁴⁹⁹ The court expressly “recognize[d] the importance of the rule of comity invoked, as essential to the preservation of the harmony and peaceful operation between the courts of the two jurisdictions.”⁵⁰⁰ But, it expressed, that the state had a role to play in comity as well: “[L]oyalty to the supreme law of the land, and the obligation of good citizenship, demand that the state and its ministerial officers should forbear to provoke the occasion for the federal judiciary to assert their jurisdiction to see that the federal constitution is recognized and obeyed.”⁵⁰¹

Vertical federalism requires courts to protect both state and federal interests. If Younger’s assertion is correct—that national harmony depends on whether “institutions are left free to perform their separate functions in their separate ways”⁵⁰²—then it is essential that “Our Nation’s” courts are free to perform theirs.

C. Equitable Restraint and Narratives

The narratives surrounding legal abstention often invoke claims of novelty, suggesting that certain practices depart from more legitimate historical traditions. This rhetorical strategy is exemplified by the Fifth Circuit’s opinion in Daves v. Dallas, where the court portrayed Younger as a response to what it characterized as the Warren Court’s “enthusiasm for effectuating novel notions of social justice and personal rights.”⁵⁰³ Yet this characterization fundamentally misapprehends the historical reality. The rights at issue—protections against excessive bail, official extortion, and inhumane jail conditions—are not modern innovations but rather are deeply rooted in historical traditions. Moreover, federal intervention in state criminal systems to remedy such violations was established practice both before and after the Fourteenth Amendment.

These historical cases also illuminate equitable restraint’s relationship to constitutional narratives of memorial and monument in American jurisprudence. Certain cases in American history—Korematsu v. United States, Buck v. Bell, Dred Scott v. Sandford⁵⁰⁴—stand as solemn memorials of moments when courts facilitated profound injustice. These anticanonical decisions serve as warnings of paths not to be retaken. ⁵⁰⁵ Other cases, like Brown v. Board of Education, stand as monuments to our highest ideals.⁵⁰⁶ Within this framework, memorials typically represent instances of identity-based subordination, while monuments mark triumphs of egalitarian principles.

The federal judiciary’s intervention against anti-Chinese legal regimes aligns more closely with our monumental traditions than our solemn precedential memorials. These interventions represented the vindication of egalitarian principles rather than complicity through inaction. Consider the implications of expansive notions of comity prevailing in cases like In re Lee Sing and Wong Wai: Would federal courts have permitted race-based incarceration for property ownership or residence? Would they have sanctioned the discriminatory administration of dubious medical treatments to a single racial group? In Wong Wai, which sought relief for approximately 25,000 individuals, the courts chose equality over states’ rights. Today’s expanding federalism doctrine, with its diminished attention to irreparable harm, risks producing decisions that will stand as memorials to injustice rather than monuments to equality.

Conclusion

There is a chasm between contemporary expansions of criminal abstention doctrine and centuries of equitable practice. Modern courts have dramatically expanded abstention principles far beyond their historical roots, disregarding both traditional safeguards against irreparable harm and the vital need for meaningful forums to protect constitutional rights. This expansion threatens to leave victims of systemic constitutional violations—from unconstitutional wealth-based detention to illegal separation of children from their parents—without effective remedies. Neither history nor federalism requires judicial passivity in the face of constitutional violations. In abandoning centuries of equitable tradition, today’s courts risk transforming federal judges from guardians of constitutional rights into mere spectators to constitutional crises.

*Professor of Law, Stanford University. Thanks are due to Payvand Ahdout, Maggie Blackhawk, Josh Chafetz, Zachary Clopton, Andrew Crespo, Katherine Mims Crocker, Erin Delaney, Daniel Epps, Maggie Gardner, Michael Gilbert, Myriam Gilles, Abbe Gluck, Bert Huang, Allison Larson, Matthew Lawrence, Maggie Lemos, Ajay K. Mehrotra, Melissa Murray, Portia Pedro, Jim Pfander, Teddy Rave, Tom Schmidt, and Diane Wood for comments on ideas and earlier drafts, including through the Bolch Judicial Administration & Judicial Process Roundtable at Duke Law School (December 2023); the Public Law Colloquium at Northwestern Law (March 2024); the Public Law Workshop at New York University School of Law (October 2024); and the University of Wisconsin Law School’s State Democracy Research Initiative (SDRI)’s Federalism Roundtable (April 2025). Thank you as well to the exceptional Emory Law librarians, and for wonderful research assistance from Jordan Andrews, Leann Pham, Brent Modak, Kelly Palamar, and Daniel Xu.