BAIL (Update)

In 1986, when the Encyclopedia of the American Constitution was first published, some scholars maintained that the Eighth Amendment's prohibition of "excessive bail" implied a right to bail in all noncapital cases. Others argued that the clause afforded no right to bail in any case. According to this second group, the Eighth Amendment imposed no limitation on Congress's power to deny bail; it governed only the amount of bail when bail was permitted.

Strongly supported by the language of the Supreme Court in Stack v. Boyle (1951), many scholars also maintained that the only legitimate purpose of bail under the Eighth Amendment (and of detention when an accused could not secure his or her pretrial release) was to prevent flight or else to protect the integrity of the trial process in other ways (notably, by preventing the intimidation of witnesses). Other scholars contended that a court also could lawfully consider the risk that a defendant would commit crimes during the pretrial period in setting bail and, perhaps, in denying pretrial release altogether. The principal unresolved issues posed by the Eighth Amendment were whether the amendment implied a right to bail and what standards, criteria, or objectives a court could consider in determining whether bail was "excessive."

The Supreme Court addressed these issues and the due process issues posed by pretrial preventive detention in united states v. salerno (1987). Salerno upheld the constitutionality of the Federal Bail Reform Act of 1984, which permits detention without bond in some federal cases when neither bail nor other conditions of release "will reasonably assure … the safety of any other person and the community."

Holding that the Eighth Amendment does not afford a right to bail in all noncapital cases, the Court quoted the suggestion of Carlson v. Landon (1952) that the amendment does not create a right to bail in any case. Finding it unnecessary to resolve this issue, however, the Court indicated that the amendment might create a right to bail in some cases and not others, depending on the strength of the government's reasons for denying bail. The defendants had argued that a denial of bail could be regarded as "infinite" bail, and the Court did not reject this contention. It held, however, that infinite bail was not always excessive. The Court also concluded that dangerousness, as well as the risk of flight, could be considered in judging the propriety of pretrial detention.

The Supreme Court resolved the Fifth Amendment due process issues in Salerno through the sort of cost-benefit analysis that has characterized much of its recent constitutional jurisprudence. The Court's opinion noted "the individual's strong interest in liberty" and declared that this interest was both "important" and "fundamental." The opinion concluded, however, that "the government's interest in community safety can … outweigh an individual's liberty interest."

The phrase "liberty interest" first appeared in a Supreme Court opinion in 1972. Its author, Justice william h. rehnquist, later became chief justice and wrote the Salerno opinion. Use of the phrase "liberty interest," which seems to mark liberty as the appropriate subject of a utilitarian trade, has increased greatly in recent years.

Critics of the Supreme Court's cost-benefit analysis suggest that even the most brutal governmental actions may advance "compelling" interests and that some governmental impositions cannot be justified by countervailing public gains. For example, if psychologists developed the capacity to predict future criminality with substantial accuracy, the detention of people who, unlike the defendants in Salerno, had not been charged with any crime might be justified through the same analysis that the Supreme Court used to justify the preventive detention in Salerno. The liberty interests of the people detained for failing the psychologists' predictive tests would not differ from the liberty interests of the people detained under current law, and the governmental interest in preventing future crime would also be identical.

An analysis that balances the burdens imposed by a governmental action against the public gain produced by this action seems to omit traditional considerations of individual responsibility and opportunity. This analysis also departs from a tradition-based "fundamental fairness" approach to the due process clause—an approach that might have been more likely to invalidate the detention in Salerno. For more than 300 years following the Pennsylvania Frame of Government in 1682, Americans withheld bail only in capital cases and then only when the proof of guilt was "evident and the presumption great." These Americans apparently chose to run greater risks than cost-benefit analysis could have justified.

The Supreme Court recognized that its cost-benefit analysis would not have justified the detention in Salerno if this detention had qualified as punishment. However strong the government's interest in imposing criminal punishment, the Constitution precludes it unless the accused has been afforded a trial at which the government must establish his or her guilt beyond a reasonable doubt and must comply with other constitutional requirements. Examining Congress's intent, the Court concluded that the objective of the Bail Reform Act was to "prevent danger to the community" and that this objective was "regulatory, not penal."

The Court did suggest that "detention in a particular case might become excessively prolonged, and therefore punitive." It is difficult to envision how Congress's motive could change from regulatory to punitive at some moment in a case of prolonged detention, and the Court offered no hint of when this metamorphosis of legislative intent might occur. The Bail Reform Act itself imposes no limit on the length of preventive pretrial detention, and the deadlines of the Federal Speedy Trial Act are flexible. In one recent case, an appellate court declined to find a sixteen-month period of pretrial preventive detention unlawful per se. The Supreme Court's view of retrospectively changing legislative motive may be difficult to understand, but it is likely to save some defendants from detention for a year or more without trial.

Federal courts have made extensive use of the preventive detention provisions of the Bail Reform Act, and both the percentage of defendants detained before trial and the populations of federal pretrial detention facilities have increased substantially. Although many states have enacted preventive detention measures as well, judges and prosecutors appear to have used these state statutes less frequently. One reason may be that the state statutes typically lack a significant provision of the federal act: "The judicial officer may not impose a financial condition that results in the pretrial detention of the person." In state courts, judges and prosecutors may find it easier to set high bail and thereby accomplish preventive detention sub rosa than to comply with the procedural requirements of local preventive detention legislation.

Since the 1960s, bail reform has proceeded from two directions. Judges have released more defendants on recognizance and on nonfinancial conditions, and, especially in the federal courts, judges have detained more defendants without the option of posting bond. Both reforms have made the wealth of defendants less important in determining the probability of their pretrial incarceration, and even the opponents of preventive detention might agree that dangerousness is a less offensive basis for detention than poverty. Both currents of reform move the United States closer to the patterns of pretrial release and detention found in European nations, where bail either is not authorized or has fallen into disuse.

Albert W. Alschuler
(1992)

(see also: Compelling State Interest; Pennsylvania Colonial Charters; Procedural Due Process of Law, Criminal.)

Bibliography

Alschuler, Albert W. 1986 Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process. Michigan Law Review 85:510–569.

United States Department of Justice, Bureau of Justice Statistics 1988 Pretrial Release and Detention: The Bail Reform Act of 1984. Washington, D.C.: U.S. Department of Justice.