What To Do About Bail?

New Jersey and Maryland have made major changes in how their judges use bail. There was litigation in the federal court in Texas that ended up with an order quite critical of how some of the Texas state court judges employed money bail.  So is there a “bail revolution” going on? Kellen Funk (Columbia University – Law School) has posted The Present Crisis in American Bail (128 Yale Law Journal Forum 1098, 2019) on SSRN. Here is the abstract:

More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) postconviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these precedents while also taking account of the troubled history of American bail, particularly during the Reconstruction Era from which the right to sue state officials in federal court for violations of constitutional rights emerged.

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