How Should We Think About Bail?

Jordan Gross (Alexander Blewett III School of Law at the University of Montana) has posted Devil Take the Hindmost – Reform Considerations for States with a Constitutional Right to Bail (Akron Law Review, Forthcoming) on SSRN. Here is the abstract:

There is no right to bail under the U.S. Constitution. This means the question of who is bailable in state court is left entirely to state law, and the question of who is bailable in federal court is governed entirely by statute. Most original state constitutions guaranteed that “all persons shall be bailable by sufficient sureties,” except those charged with a narrow category of serious offenses (typically capital crimes). At the Founding, federal statutory law gave federal defendants similar rights. These early authorities reflected a national consensus on several points: the sole justification for bail is to secure a defendant’s presence at future court proceedings; all non-capital defendants should be released pending trial upon providing adequate assurances that they will return for trial; and some capital defendants can be detained pretrial because the prospect of losing one’s life if found guilty is such a powerful incentive to flee that the state’s interest in securing the defendant’s trial presence outweighs his interest in pretrial liberty. This traditional right to bail is categorical – if an accused is charged with a bailable offense, the trial court must set bail, and it must release the accused if he, or someone on his behalf, posts bail.

The trial court can impose conditions of release, including requiring “sufficient sureties.” But it cannot detain non-capital defendants without bail for any reason other than a failure to post bail. It cannot, for example, detain a defendant to prevent him from fleeing justice or to protect others in the community.

Under early English law, from which American bail law derives, bail was a mechanism for transferring custody of an accused to a third party – a surety – who promised to produce him for trial. The surety’s promise could be unsecured – backed by the surety’s word alone, or it could be secured by a pledge of money or property subject to forfeiture if the accused was not produced for trial. Historically, the surety was a person with a social connection to the accused, such as a relative or employer. In the United States, one of only two countries in which it is legal to collect a fee for securing a criminal bail bond, a surety can also be a commercial entity. Commercial, for-profit bail bonding is authorized in most states. In most traditional right to bail states that permit commercial bail bonding, secured money bail is a mainstay of bail administration. The commercial bail industry is loosely-regulated. This has allowed predatory and unscrupulous bail bonding practices to flourish unchecked in many traditional bail jurisdictions.

The traditional right to bail is anchored to the ideal that most defendants should be at liberty pending trial. The routine use of secured money bail as a condition of release in modern U.S. bail administration, however, has resulted in the routine pretrial detention of millions of Americans each year who cannot afford bail. These defendants are disproportionately non-white, and most are accused of non-violent misdemeanor offenses. Defendants who spend time in jail pretrial pay a steep price – they may lose housing, employment, and other opportunities; their ability to assist in their defense is hampered, and they are more likely to plead guilty and be convicted at trial. Those who post bail may end up in debt to a bondsman.

Congress passed the Bail Reform Act of 1966 to curb wealth-based pretrial detention practices in federal court. The 1966 Act made money bail a release condition of last resort in federal court and mandated that no federal defendant could be detained based on an inability to post money bail. These changes addressed concerns about economic inequities in federal bail practice, but created public safety concerns. Traditional, money-based bail administration does not permit a court to detain a bailable defendant pretrial, even if he poses a risk to the community. But as long as money bail is in the mix, courts can incapacitate a dangerous, but bailable, defendant by setting bail in an amount it hopes he cannot pay. Setting bail in an unpayable amount is an unauthorized, yet tolerated, practice in jurisdictions whose laws do not permit pretrial detention of non-capital defendants without bail. When Congress sidelined money bail in federal court that made it harder to use bail to detain dangerous defendants pretrial. To remedy this, Congress amended the Bail Reform Act in 1984 to authorize preventative pretrial detention in federal court – that is, detention without bail to prevent the defendant’s flight or to protect the public. Most states have also abandoned the traditional right to bail and embraced risk-based pretrial release and detention practices. Like the federal court, most states now permit preventative pretrial detention without bail for some non-capital defendants and treat money bail as a disfavored condition of release. Today, twenty-two states, fewer than half, continue to recognize an absolute constitutional right to bailability by sufficient sureties for non-capital defendants.

The devastating effects of money bail on poor defendants and their communities, with no corresponding public safety benefit, are well-documented. Bail reform has been a topic of discussion in the U.S. since at least the 1960s, and it has received an extraordinary amount of media and scholarly attention in the last several years. The focus then and now has been primarily on the undisputed negative aspects of money-based bail administration. Relatively little attention is given to understanding why a state may continue to embrace traditional bail administration practices notwithstanding the many downsides of money bail. A great deal of the complexity surrounding the law and history of bail is often lost in the process. To fill that gap, this Article identifies practical, legal, and philosophical reasons that may prevent or discourage states from abrogating the traditional right to bail in favor of risk-based bail administration.

The current bail reform narrative frames bail administration as a binary choice between money bail and risk-based assessment. This Article posits that this is a false dichotomy and that right to bail states can address some of the problems caused by money-based bail administration without abandoning the traditional right to bail entirely. Criticisms of money-based bail administration have not changed much since the 1960s, but the legal and political landscape has. This Article cautions that right to bail jurisdictions that do not adapt to this new climate may end up on the wrong side of a rapidly evolving equal protection jurisprudence. At the same time, states that abandon the traditional right to bail face a different set of risks and trade-offs that need to be considered. Whether to pursue bail reform, ultimately, is a choice for the electorates in the remaining right to bail states, and that requires a discussion about the value of pretrial liberty, concerns for public safety, and how much power courts should have to detain accused persons pretrial based on a prediction about future behavior. In the interim, legislatures in right to bail states have a responsibility to ameliorate some of the hardships money-bail causes poor defendants and rein in the excesses of commercial bail bonding industry.

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