Bail is an ancient practice at the heart of a recurring nationwide debate: Should we hold people in jail before trial if they are unable to pay bail? Money-bail practices were well known to the Framers as they drafted the Constitution and the Bill of Rights. Its purpose, to ensure the appearance of an accused individual at trial, was a well understood and uncontroversial element of the criminal justice system in early America. The Framers’ primary concern in drafting the Eighth Amendment’s Bail Clause was to ensure that bail not be set unreasonably high—which was not to say that bail must be affordable, or even available, to all defendants.
Since the founding era, America has experienced two waves of bail reform. Now, a third is developing among several states. Some reformers engage in the political process to seek policy changes through legislation. Others attack money bail as unconstitutional, ignoring the history of the Bail Clause and reinterpreting long-standing principles of due process and equal protection. In this third wave of bail reform, what is past is prologue.
Judges can and should consider a person’s financial status at the time of setting bail, but the Constitution does not require that bail be available in all cases, or that it be affordable to each defendant. If advocates wish to change this, the proper venue is through the legislature, not the judiciary. Trying to persuade judges to rewrite the U.S. Constitution to achieve the objectives of bail-policy reformers threatens injury to the Constitution itself.
The Origins of Cash Bail
Modern American bail law can trace its origins through 15 centuries of history, to the ancient days of Anglo-Saxon England.[REF] Then, unlike today, criminal justice was a largely private, often brutal affair.[REF] Family members were expected to avenge their murdered kin. Any private citizen could kill an offender sentenced to “outlawry.” Anyone caught in the act of committing a crime could be summarily executed.[REF]
Gradually, however, Anglo-Saxon law turned away from blood feuds toward a system of financial compensation paid by offenders to their victims. These payments, known as “wergeld,” were equal to the injured party’s value, which was assigned based on, among other things, the person’s social status.[REF] The late seventh century brought courts of arbitration, which heard and adjudicated complaints between Englishmen.[REF] This transition to a court-centered justice system presented ancient communities with a familiar problem: how to prevent the accused from fleeing to avoid punishment?
Jail facilities were impractical, so Anglo-Saxon law dealt with the problem by releasing the accused on condition that he find a surety—someone who assumed responsibility for ensuring his appearance at trial.[REF] The surety had to put up a pledge equal to the amount of the potential penalty, which would be forfeited if the accused failed to appear.[REF] This early system of bail killed two birds with one stone: It simultaneously provided strong incentives to sureties to ensure their charges appeared in court, and guaranteed payment to victims if they fled.
The Norman conquest of 1066 brought considerable change, as the role of the state in criminal justice grew. Under Anglo-Saxon law, all crimes were considered bailable. But by the time of the Assize of Clarendon, issued in 1166,[REF] Norman custom had evolved to place certain offenses, such as murder and “forest offenses,”[REF] beyond the scope of bail.[REF] Most other offenses, however, remained bailable, largely due to the difficulties involved in detaining individuals for the years it sometimes took for itinerant judges riding a circuit to arrive in a given county.[REF]
Medieval English law gave sheriffs discretionary power to set the amount of bail and to choose whether to jail a defendant. This system invited corruption, including unlawful detention by sheriffs looking to extort payments from arrestees, as well as bribery to secure the release of suspects who were supposed to be held without bail. Consequently, subsequent centuries saw bail law undergo a series of reforms designed to restrain the discretionary authority of sheriffs, normalize the process of bail and pre-trial release, and provide security against unlawful detention.[REF]
Following the adoption of Magna Carta in 1215,[REF] a long series of proclamations and acts of Parliament provided incremental steps to define and protect the legal rights of Englishmen as criminal defendants. The first Statute of Westminster commanded sheriffs to release certain individuals deemed replevisable by the law on “sufficient Surety.”[REF] This and subsequent statutes proceeded to define which offenses were and were not bailable. The Petition of Rights of 1628 curtailed the practice of imprisoning individuals without any accompanying charge.[REF] The Habeas Corpus Act of 1679[REF] expedited the process of setting bail and releasing defendants prior to trial. The Bill of Rights of 1689 responded to the practice, employed by some judges, of using exorbitant bail to restrain individuals who otherwise would have been entitled to release.[REF] In language instantly recognizable to Americans today, the English Bill of Rights declared “[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[REF]
By the end of the 17th century, English citizens could point to centuries of statutory and common law affording a qualified right to pre-trial release. In England, this right to release was understood to be available only for certain classes of offenses and was unrelated to the ability of the accused to meet the requirements of bail—that is, if sufficient surety could not be obtained, the accused was most often detained.[REF] Thus, pre-trial release was a system designed to balance the interests of the accused with the interest of society in ensuring that wrongful acts be punished, and criminals be prevented from absconding. There was no guarantee that a suspect would be released pending trial. That general framework is still with us today.
Bail in Early America
English colonists traveling to the New World brought their conceptions of law and justice with them. Most saw themselves as Englishmen protected by English law. In Connecticut, Delaware, Georgia, Maine, Maryland, and Rhode Island, colonial charters extended the legal rights enjoyed under English law to colonial Americans without modification.[REF] The inhabitants of some colonies, however, applied the mother country’s laws, including bail law, with slight variation, heralding the federalism we enjoy today. Colonial Massachusetts, through its Body of Liberties of 1641, provided that “[n]o man’s person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle, or mainprise, for his appearance, and good behavior in the meane time,” except in cases where the individual was accused of a capital crime, contempt of court, or other offenses exempted by the legislature.[REF] In 1682, Pennsylvania adopted its own Frame of Government of Pennsylvania, providing that “all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption great.”[REF] New York modeled its bail system on Pennsylvania’s, providing bail in all cases save charges of treason and felony.[REF]
Thus, by the dawn of the Republic, American legal custom had already developed a strong presumption favoring pre-trial release by means of a bail payment. Once released, a surety became, in essence, a defendant’s jailer. Sureties were expected to assure that a defendant in their charge complied with all release conditions and appeared in court for trial, and were further responsible for apprehending and detaining a defendant if he fled.[REF] As late as 1872, the U.S. Supreme Court cited English common law to explain the responsibilities and liabilities of sureties with a defendant in their charge.[REF]
Calculating a reasonable sum of bail in each case was also a grave matter. The common law offense of taking insufficient bail appeared in colonial laws, whereby if a party was released on insufficient sureties and did not reappear, the officer who set bail could be fined.[REF] A 1645 law in the Virginia Colony, for example, held sheriffs liable “to pay the award of the court” if he “shall neglect to take sufficient bayle of the party arrested, or otherwise consent to, or be cause of” an accused man’s escape.[REF] Clearly, rather than a mere pro forma act, bail was to be set at an amount judged to be sufficient to incentivize appearance at trial, without becoming excessive.
Bail Under the Constitution
After 1776, the former colonies adopted constitutions that retained specific prohibitions against excessive bail, but did not create an absolute right to bail in all cases.[REF] Rather, the power was reserved to the legislatures to define which offenses were considered bailable. Capital crimes, for example, were subject to special restrictions and were not bailable at all. In America, as in England, the fact that a defendant was accused of a bailable offense did not guarantee his automatic release. Judges were empowered to consider individual factors, such as the evidence against a defendant, the probability of conviction, and his criminal history in determining what amount constituted reasonable bail. And, of course, pre-trial release was not a “get out of jail free card”—it was conditioned upon the ability of the accused to post a reasonable bail and provide adequate sureties that he would return to face judgment. Indeed, the U.S. Supreme Court clarified one century later: “When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment.”[REF]
Bail did not appear in the U.S. Constitution as it was first written and ratified.[REF] Congress specified that “[e]xcessive bail shall not be required” in the language of the Eighth Amendment, which passed with broad support and virtually no debate.[REF] This is hardly surprising given how closely the Eighth Amendment’s language hewed to both existing state constitutions and the English Bill of Rights of 1689 from which “the bail clause was lifted, with slight changes.”[REF] The first Congress also included in the Judiciary Act of 1789 a provision establishing that for “all arrests in criminal cases, bail shall be admitted, except where the punishment may be death.”[REF] Thus, federal law preserved the rights provided for in the various state constitutions, chiefly the strong presumption favoring pre-trial release through bail, legislative control of admittance to bail, and a bar to excessive bail based on the English Bill of Rights and state constitutions. In short, Congress did nothing novel with the Eighth Amendment’s bail provisions.
As rooted as the American justice system is in the common law and traditions of England, it nonetheless experienced unique challenges that produced novel legal consequences. America’s expansive and unexplored frontier, for one, afforded criminal suspects far more opportunity to flee and evade justice than the English islands. Additionally, the “unrooted” and rural life of many early American settlers simply made it harder to find a surety to take responsibility for a defendant in the pre-trial period.[REF] Although sureties often did step forward, “their promise to produce the accused gradually became a promise merely to pay money should the accused fail to appear.”[REF] Some entrepreneurial spirits saw an opportunity. By posting a bond on a defendant’s behalf in exchange for a fee, underwriters could turn a profit. So long as they exercised “reasonable diligence” to prevent escapes, “courts either waived or refunded a substantial percentage of forfeitures.”[REF] Regardless, bondsmen retained their fee.
The exact origin of the modern commercial bail-bond industry in the United States is difficult to pin down, but most trace its lineage to late-19th-century San Francisco. Two brothers, Peter and Thomas McDonough, realized that charging a fee and working directly with defendants was a lucrative business opportunity and founded the nation’s first commercial bail-bond firm from their father’s saloon near San Francisco’s Hall of Justice.[REF] The firm lasted only five decades, and earned a degree of infamy for its ties to organized crime and corruption, but it set a precedent, and the commercial bail bond industry was born.
The average commercial bondsman’s firm works as follows. A defendant, unable to afford bail or locate a family member or friend willing or able to do so, may instead turn to a commercial surety. The firm posts bail in the full court-ordered amount, and charges the defendant a percentage fee, usually 10 percent.[REF] The bondsman has the responsibility to ensure that the accused appears in court and is empowered to track down, detain, and return fleeing individuals. If the firm fails to do so, it forfeits the full amount of bail; if it successfully delivers a defendant, the bail amount is returned, and the firm retains the percentage paid by the defendant. The business model has proven successful and easily replicable and has spread throughout the nation.[REF] Indeed, today commercial bondsmen operate in nearly every state, although some states have outlawed the practice.[REF]
Bail in the Supreme Court
Notwithstanding these unique developments, federal bail law was largely unchanged until the middle of the 20th century. In the 1950s, it became the center of several controversies that reached the U.S. Supreme Court. In 1951, 12 communists charged with violating the Smith Act challenged their bail, set at $50,000 apiece, as “excessive” under the Eighth Amendment.[REF] Chief Justice Fred Vinson, writing for the majority in Stack v. Boyle, defended the “traditional right to freedom before conviction,”[REF] but found that pre-trial freedom does not come without conditions:
The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty. Like the ancient practice of securing oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is “eccessive” under the Eighth Amendment.[REF]
Importantly, the Court affirmed that the role of bail is to provide an anchor holding a defendant in place pending the outcome of a trial, and held that judges must conduct individualized assessments when considering the amount of bail in each case.
A year later, in 1952, alien communists held without bail pending possible deportation challenged their detention on the grounds that the Constitution afforded them a right to release on bail.[REF] Justice Stanley Reed, writing for a majority of the Court in Carlson v. Landon, rejected the argument that the Eighth Amendment “compels the allowance of bail in a reasonable amount” in all cases.[REF] Reed correctly pointed out:
The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus, in criminal cases, bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable.[REF]
Reed based his Eight Amendment analysis by reference to its antecedent English Bill of Rights, which “has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail.”[REF] It is instructive that “[w]hen this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.”[REF]
Setting Bail When Proper
The Medieval English criminal justice system that produced money bail was quite unlike the criminal justice system that administers bail today. It functioned like an artisan’s workshop, with few professional actors—typically just a sheriff and a magistrate—whose law enforcement roles often fell to members of the community.[REF] Today’s criminal justice system, at least in large urban cities, functions much more like a factory, with many professionals performing discrete tasks, requiring far less direct involvement from the community.[REF]
Jails are no longer impractical. Judges no longer ride circuit. A host of law enforcement officials now work to identify, capture, and detain suspected criminals and track defendants who flee before trial. A sizable bureaucracy keeps the wheels turning, including pre-trial services agents who recommend how to treat criminal defendants before trial and personnel who ensure that any conditions of release are met.[REF] The state has taken much of the responsibility to supervise criminal defendants before trial off the hands of kinfolk who performed that task in medieval England.
Bail played a significant role in the evolution of criminal justice, particularly regarding the pre-trial hearing known as an “arraignment,” in which a defendant typically enters a plea of not guilty to the charges against him and a judge decides what to do with the defendant before trial.[REF] By the 1980s, arraignments exemplified the factory model of criminal justice: brief, efficient exchanges between judge, prosecutor, defense counsel,[REF] and defendant—and behind them a tremendous bureaucracy at work, “involving stacks of paperwork by police officers, deputy U.S. attorneys, defense attorneys, judges, and courthouse workers.”[REF]
At the arraignment, judges must impose “bail or jail,”[REF] or some other release conditions,[REF] before a defendant is convicted. Consequently, the presumption of innocence is pertinent.[REF] Yet a judge cannot be blind to the fact that several government officials, and often a grand jury, have already drawn conclusions about the likelihood of the defendant’s guilt.[REF] Many critics have argued that some judges are unduly swayed by law enforcement concerns that a defendant will pose a significant risk of flight or harm to individuals or the community if released—and increase bail as a means of detaining defendants.[REF] The result, they argue, contributes to a broader problem: that too many people are in jail pending trial “simply because they are poor.”[REF]
Although we have come far from medieval sheriffs extorting bail money, some who experience these procedures firsthand,[REF] as well as academics,[REF] litigators,[REF] policy experts,[REF] professional organizations,[REF] and some judges,[REF] harbor significant concerns about the pre-trial detention of defendants who cannot afford bail. That controversy has generated three waves of bail reform: the first in 1966, the second in 1984, and the third today. Some of today’s advocates disregard the lessons of past reform, seeking instead to rewrite the history and text of our Constitution.
Wave I: The Bail Reform Act of 1966 and “Presumptive Release”
Bail, like the humans who administer it, was never perfect. In 1964, then–U.S. Attorney General Robert F. Kennedy gave an oft-cited critique of bail practices that existed at the time:
Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. The factor is simply money. How much money does the defendant have?[REF]
Though it may be true in some cases, such a simplistic representation is misleading. Reform-minded legislators in the 1960s were concerned that judges focused on non-financial factors such as the nature of the crime and the character of the defendant too much, not too little. They “condemned” federal rules that “allowed judges to detain defendants” merely by “setting unaffordable bail” with only a “questionable” explanation as to the reason for doing so.[REF] The unstated purpose behind the setting of unaffordable bail was usually that the defendant was too “dangerous” to release.[REF] The net effect, reformers argued, was that a great many people—particularly poorer defendants in crowded city jails—were stuck, often unjustifiably, in detention, while wealthier and possibly more dangerous suspects were able to secure release.
In the face of these criticisms, Congress enacted the Bail Reform Act of 1966,[REF] which declared that “the sole purpose of bail laws must be to assure the appearance of the defendant”[REF] and adopted a policy that no one, “regardless of their financial status,” may “needlessly be detained pending their appearance.”[REF] It directed judges to release all non-capital case defendants on their own recognizance unless doing so would be inadequate to assure their appearance. In such situations, it enumerated additional conditions of release that a judge could impose to meet that goal, including placing the defendant in the custody of a “designated person,” placing restrictions on travel, or one of several forms of money bail, such as an appearance bond or a surety bond.[REF] And the act listed factors for a judge to consider for setting conditions of release.[REF] These included indicia of a defendant’s flight risk, such as ties to the community, as well as his financial resources to permit the setting of a reasonable amount of bail. The law, however, did not permit judges to consider a defendant’s prospective dangerousness to the community in deciding whether to detain someone—the very reason, it was suspected, why many judges were setting bail that was out of reach to many accused offenders.[REF]
Wave II: The Bail Reform Act of 1984 and “Dangerousness”
The 1966 act caused problems almost immediately. In 1970, Congress authorized preventive detention in the District of Columbia at the request of local officials concerned about the release of violent offenders.[REF] By the 1980s, nationwide public-safety concerns stemming from the crimes committed by defendants out on pre-trial release had trumped the liberal release agenda of the 1960s.[REF] Many states changed their bail laws accordingly.[REF] President Ronald Reagan and Chief Justice Warren Burger both voiced this sentiment as well.[REF] The Senate Judiciary Committee decried the 1966 act’s “failure to recognize the problem of crimes committed by those on pre-trial release” and determined “that federal bail laws must address” that alarming oversight.[REF] In 1984, Congress rectified its earlier oversight with a new Bail Reform Act that enabled judges to detain the few “but identifiable” “particularly dangerous” defendants for whom no “stringent release conditions” or likelihood of re-arrest would “reasonably assure” public safety.[REF]
The 1984 law did not throw open the door to excessive bail. In fact, Congress expressly prohibited “using inordinately high financial conditions to detain defendants,”[REF] instead authorizing judges to consider a defendant’s dangerousness when determining whether to hold a defendant pre-trial. Of course, Congress had to ensure that preventive detention would not cast too wide or narrow a net, so it adopted workable but “stringent safeguards to protect the rights of defendants” based in part on the 1970 preventive detention statute for the District of Columbia. Defendants were afforded “a full-blown adversary hearing,” where “the Government must convince [the judge] by clear and convincing evidence,” based on specific factors, “that no conditions of release can reasonably assure the safety of the community or any person.”[REF]
Two defendants detained without bail challenged the law soon after it was enacted. They argued that preventive detention under the act violates the Eighth Amendment and also “constitutes impermissible punishment before trial” in violation of “substantive due process.”[REF] The U.S. Supreme Court rejected both claims and upheld the constitutionality of the act. It found no Eighth Amendment bar to the government “pursuing compelling interests” such as public safety “through regulation of pre-trial release.”[REF] It also concluded that pre-trial detention under the Bail Reform Act “is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause.”[REF]
Some advocates urged Congress to eliminate money bail entirely, but legislators considered that “unjustified.”[REF] The Department of Justice recommended preserving money bail as a historical and effective method to deter flight and secure reappearance.[REF] Congress appears to have adopted that position when crafting the 1984 act. Per the Senate Judiciary Committee report, “[A] financial condition of release that results in the pre-trial detention of the defendant…does not necessarily require [their] release” if the judge determines that “it is the only form of conditional release that will assure the person’s future appearance.”[REF]
Today, courts across the country recognize that they are prohibited from “using unnecessarily high bail amounts as a replacement for the required findings necessary to order pre-trial detention.”[REF] Critics, however, maintain that state courts still set unaffordable money bail in unfair, irrational, and unnecessary ways.[REF] This has led to the third wave of bail-reform efforts now unfolding in several states.[REF]
Wave III: Familiar Policy Proposals and Novel Misinterpretations of the Constitution
In 1966 and 1984, advocates brought compelling policy concerns about money bail to their legislators, specifically alleging that too many people are jailed before trial—with devastating personal consequences—“simply because they are poor” and cannot afford bail.[REF] Today’s advocates direct their policy concerns not only to legislatures but to courts, staking out misleading positions supported by factually incorrect arguments that money bail is unconstitutional. Two of these arguments stand out.
Fourteenth Amendment. In 2016, the U.S. Justice Department wrote a “Dear Colleague” letter[REF] to state and local “judicial actors”[REF] asserting that “any bail practices that result in incarceration based on poverty violate the Fourteenth Amendment.”[REF] This is incompatible with long-standing constitutional law. Just as the English jurist William Blackstone found it clear in 1765,[REF] federal courts in this country have considered it clear in modern times that “bail is not excessive merely because the defendant may be financially unable to post an amount otherwise meeting the above standards.”[REF] A defendant’s present financial inability to make bail “is certainly…a concern which must be taken into account when determining the appropriate amount of bail,” however, “it is neither the only nor controlling factor to be considered by the trial court judge in setting bail.”[REF]
At least two state courts have also addressed the issue and reached the same conclusion. The Supreme Court of Vermont recently concluded that “[a]lthough both the U.S. and Vermont Constitutions prohibit excessive bail, neither this court nor the U.S. Supreme Court has ever held that bail is excessive solely because the defendant cannot raise the necessary funds.”[REF] The Supreme Court of Wyoming also determined that “it is not necessary for a court to [fix bail] at a point that it can be made by the defendant,” because “the measure is adequacy to insure [sic] appearance” not “the defendant’s pocketbook and his desire to be free pending possible conviction.”[REF]
The Justice Department concluded otherwise by interpreting too broadly a body of federal judicial precedent which holds that an indigent convicted criminal’s present inability to pay certain fines or fees is generally an impermissible basis to impose or enhance a post-conviction sentence of incarceration or to deny a hearing.[REF] The U.S. Supreme Court has distinguished post-conviction punishment from pre-trial bail and detention, for the same reasons that Blackstone did over 250 years ago: Pre-trial “imprisonment…is only for safe custody, and not for punishment.”[REF]
If an aspect of pre-trial detention is punitive, the remedy lies not in equal protection, but due process.[REF] In 1956, the U.S. Supreme Court, led by then-Chief Justice Earl Warren, made “a significant effort to alleviate discrimination against those who are unable to meet the costs of litigation in the administration of criminal justice.”[REF] In Illinois, criminal defendants could obtain a trial transcript for appellate review from the state for a fee. The Court decided that the fee effectively barred indigent defendants from receiving adequate appellate review and so held that requiring them to pay the fee was unconstitutional.[REF] Since then, “a few relevant Supreme Court precedents” have treated the “unequal impact of certain state activities on indigents as ‘invidious discrimination’ forbidden by the Fourteenth amendment.”[REF] But “the Court’s reasoning is not explicit” in these cases. The Court simply raises “a concern that the poor not be denied access to certain privileges available to those who can pay.”[REF] In 1983, the U.S. Supreme Court in Bearden v. Georgia suggested sweeping those few cases into a due-process framework, in part because “indigency in this context is a relative term rather than a classification, [so] fitting ‘the problem of this case into an equal protection framework is a task too Procrustean to be rationally accomplished.’”[REF]
Since 1956, the Court has clarified that equal protection is not the panacea for economic and social welfare concerns that some bail-reform advocates wish it to be. The Equal Protection Clause says that states cannot “deny to any person within its jurisdiction the equal protection of the laws.” For laws concerning economic status, equal protection jurisprudence merely requires the government to provide a “rational basis” for its policies, and “it hardly can be said that” money-bail statutes operate “without rational relationship to the legislative objective of securing the presence of the accused upon trial.”[REF]
The Supreme Court has rejected arguments that heightened scrutiny is required when laws permit different outcomes based partly on differences in material circumstances.[REF] To the contrary, as Bearden itself shows, the Court has been unwilling to wield the Equal Protection Clause to turn our capitalist society into a socialist one.[REF] It “confers no substantive rights,”[REF] so it cannot provide an absolute right to release on bail that the Bail Clause itself denies. Thus, equal protection challenges to money-bail statutes are “virtually certain to result in victory for the government,” and naysayers have fifteen centuries of history to refute.[REF]
The Supreme Court has also rejected the notion that the Due Process Clause provides a “backstop” whenever the meaning of a constitutional provision explicitly addresses a party’s claim and prevents that party’s desired outcome.[REF] “Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a specific sort of government behavior, ‘that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’”[REF] The Court’s jurisprudence thus flatly rejects the position held by the Obama Justice Department, that it is unconstitutional to set bail that indigent defendants are unable to pay. Neither the Equal Protection Clause nor the Due Process Clause offer a hidden path around the Bail Clause and its clear historical meaning.[REF]
If, alternatively, the argument is that present inability to make bail prolongs pre-trial detention, and that prolonged detention may prejudice the indigent detainee’s case,[REF] then the argument is misdirected. The concern in such a situation cannot be an existential challenge to money bail, but rather ought to be a specific complaint directed against a party who causes delay, either the prosecutor or the judge. Although it is true that due-process violations may sometimes require a court to dismiss an indictment,[REF] that would require the defendant to show much more than a mere lapse in time. He must prove that a state actor caused the delay, that the delay “caused substantial prejudice to appellees’ rights to a fair trial[,] and that the delay was an intentional device to gain tactical advantage over the accused,” or the official otherwise acted in bad faith.[REF] In practice, only extraordinary cases pass this test.[REF]
No Consensus. In spite of that clear jurisprudence, former U.S. Attorney General Eric Holder wrote to Maryland’s Attorney General, Brian Frosh, “Courts across the country have invoked” U.S. Supreme Court precedent “to find that wealth-based pre-trial detention schemes are unconstitutional.”[REF] He supports that claim by citing three cases, one each from South Florida, South Mississippi, and Alabama[REF]—hardly “across the country”—and none finding wealth-based bail to be unconstitutional.[REF]
The court in the Florida case affirmed the constitutionality of Florida’s money-bail scheme.[REF] The Mississippi court reiterated there is no “absolute right to release on bail” under the Fourth or Eighth Amendments or “even under the strict judicial scrutiny directed at state bail procedures for Fourteenth Amendment purposes.”[REF] Holder writes that the third case, Alabama v. Blake,[REF] “also [found] that a wealth-based pre-trial bail scheme ‘violates an indigent defendant’s equal protection rights guaranteed by the United States Constitution.’”[REF] While the court in Blake held that a particular state rule of pre-trial procedure violated due process under the Alabama and U.S. Constitutions,[REF] it explicitly noted that the scheme contained a severability clause[REF] and affirmed that it is constitutional for “a judicial officer to require monetary bail as a condition of release in appropriate cases.”[REF]
Money bail has deep historical roots in Anglo-Saxon law and custom. Bail emerged to solve a problem we still grapple with today—balancing the general right of defendants to pre-trial freedom with the need of society to protect against flight and ensure punishment. In the United States, defendants have a right to reasonable bail, but Congress and state legislatures can define which crimes are, and are not, considered bailable. With respect to individuals charged with crimes that are considered bailable, the Eighth Amendment provides protection from excessive, but not unaffordable, bail. In certain limited circumstances judges can order pre-trial detention in the name of public safety.
The Supreme Court has repeatedly rejected constitutional challenges to the use of money bail in the United States. To the extent that arguments can be made against its use today, they are ordinarily policy questions, not legal or constitutional issues. Nevertheless, reformers are taking their arguments to court, misconstruing judicial precedent and misrepresenting facts and history in a “Hail Mary” bid to see money bail declared unconstitutional. Rather than contort the text of the Constitution to achieve their policy goals, advocates for bail reform should make their arguments to legislators and the public, the proper venues for this discussion.
—John-Michael Seibler is Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies, Institute for Constitutional Government, at The Heritage Foundation; and Jason Snead is Policy Analyst in the Edwin Meese III Center for Legal and Judicial Studies, Institute for Constitutional Government, at The Heritage Founation.