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Jordan Gross

Abstract

There is no federal constitutional right to bail. This means the question of who is bailable in state court is left entirely to state law. 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). 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 bailable defendants 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 the community. Most states have abandoned the traditional right to bail and embraced risk-based pretrial release and detention practices that mirror federal court practice. Like the federal courts, most states now permit preventive pretrial detention without bail for some non-capital defendants. Today fewer than half of states continue to recognize an absolute constitutional right to bailability by sufficient sureties for most defendants.

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. Historically, the surety was a person with a social connection to the accused, like a relative or employer. In the U.S., 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. In most states that retain the traditional right to bail, commercial bail bonding is a mainstay of bail administration. The routine use of secured money bail as a condition of release in modern U.S. bail administration 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.

The devastating effects of money bail on poor defendants and their communities, with no corresponding public safety benefit, are well-documented. Bail reform has received an extraordinary amount of media and scholarly attention in the last several years. The focus has been primarily on the undisputed negative aspects of money-based bail administration. Relatively little attention has been 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. This Article cautions, however, that right to bail jurisdictions that do not move to eliminate the routine use of money bail as a condition of release for low-level offenses risk ending up on the wrong side of a rapidly-evolving federal equal protection and due process jurisprudence aimed at the hardships state money bail practices visit on poor defendants.

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