This is the seventh installment in the Making bail series. You can find links to the other installments here.
IN PRIOR INSTALLMENTS in this series, I described two prior bail reform movements in the United States. These were political movements that culminated in policy outcomes, the most significant of which being the 1966 Federal Bail Reform Act and the 1984 Federal Bail Reform Act. We are now amid a third wave of bail reform, once again a political movement resulting in significant policy outcomes. In the eternal struggle between order and chaos, this current bail reform movement is squarely on the side of chaos.
One might trace the beginning of this third wave of bail reform to President Barack Obama’s second term. The Obama Administration, and the concurrent political reform movement, adopted much of the rhetoric and tactics of the 1960’s bail reform effort. However, this modern effort has employed an even broader strategy. In addition to attempts to influence Congress, the Obama Administration targeted state and local entities for reform. They put a particular emphasis on the state-level judicial branch, which turned out to be highly effective.
To make their case in these different arenas, today’s bail reformers assert both legal and political arguments for their position. I will counter the most prominent of each in this article.
One legal argument bail reformers make is that money bail violates the Fourteenth Amendment’s Equal Protection Clause. In 2016, the Obama Administration’s U.S. Attorney General, Eric Holder, sent a “Dear Colleague” letter to all state and local “judicial actors” promoting bail reform. The letter stated that “any bail practices that result in incarceration based on poverty violate the Fourteenth Amendment.” To this day, the bail reform movement’s favorite argument is that money bail discriminates against the poor in violation of the Equal Protection Clause. The history of the Equal Protection Clause’s application simply does not bear that out, however. First, there is no U.S. Constitutional right to bail, so there is no Constitutional right to be unequally applied. While the Eighth Amendment does address bail, it says only that if bail is set, then it may not be excessive. It does not confer a right to bail. Further, multiple U.S. Supreme Court cases have found that “a bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement.” This position goes all the way back to at least the 1689 English Bill of Rights. The ability of the defendant to pay is a factor, but by no means dispositive, or even among the primary historically important factors such as dangerousness and assurance of reappearance. While this has been a highly influential argument, it is simply not based in law.
Next, reformers argue that defendants have a Substantive Due Process right to pre-trial release. Like the supposed right to bail, substantive due process does not appear in the U.S. Constitution. Substantive Due Process is a legal theory favored by proponents of judicial activism where rights are read into constitutional amendments such as the Fifth and Fourteenth. While the U.S. Supreme Court has adopted some “substantive due process rights,” it has specifically rejected the notion as it relates to bail. It did so in Albright v. Oliver, where the U.S. Supreme Court stated, “[W]here 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.” Sometimes a majority of U.S. Supreme Court Justices invent new constitutional rights. They have repeatedly declined to do so with bail.
Reformers also argue that the presumption of innocence protects defendants in bail hearings, and that defendants cannot be held pre-trial because they are presumed innocent. More particularly, they argue that the facts of the charged crime may not be considered when determining bail because the defendant is presumed innocent of those facts. Again, they misread the law. The presumption of innocence, just like the right to bail and substantive due process, does not appear in the U.S. Constitution. The concept does have a long history in English and American legal theory, but as a procedural due process right. Despite defense attorneys arguing it in nearly every bail hearing, the presumption of innocence is a procedural tool that does not apply in bail proceedings. The U.S. Supreme Court held in Bell v. Wolfish that “the presumption of innocence is a doctrine that allocates the burden of proof in criminal trials….But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.” The presumption of innocence is an analytical framework for trial; it has no application in bail analysis.
Finally on the legal front, third-wave reformers argue that a court may not consider dangerousness when determining bail. They take this argument from the U.S. Supreme Court case, Stack v. Boyle. In dicta, the Stack opinion’s author, Chief Justice Vinson, wrote that “bail set before trial at a figure higher than an amount reasonably calculated to fulfill the purpose of assuring the presence of the defendant at trial is ‘excessive’ under the Eighth Amendment.” Stack is not good authority, though. It is not even a holding. It is dicta in a case where that issue was not even raised. A later U.S. Supreme Court case, Salerno, points this out. In that case, the defendant Salerno relied on Stack to argue that the court could not consider dangerousness when setting bail conditions. Chief Justice Rehnquist shot that notion down stating, “[T]he above-quoted dictum in Stack v. Boyle is far too slender a reed on which to rest this argument.” The Salerno court held that they “categorically reject” the notion that dangerousness is not a proper consideration at bail proceedings.
Thus, bail reformers arguments have no solid legal grounding. They also, however, make political and sentimental arguments, but those arguments are misplaced as well.
The primary political argument made by third-wave bail reformers is that money bail practices discriminate against the poor and minorities. Of course, there is nothing explicitly discriminatory about bail procedures as written. Reformers argue, though, that the procedures are applied in a way that produces disparate outcomes. You would think, then, that reformers would be advocating for the procedures in place to be more properly applied. Assuring procedural due process is not complicated. Appellate review is in place to hedge against judges improperly favoring incarceration over individual liberty. Further, there are procedures in place to expedite court proceedings in cases where a defendant is too poor to make money bail. If judges are actively discriminating against defendants on the basis of race or socioeconomic status, then those judges should be subject to the existing disciplinary process. Inequities do happen, of course, but rarely, and the system is designed to deal with them.
These are not the positions bail reformers take, however. They do not believe that disparate impact takes the form of anomalies in the system. They believe the whole system is a problem. They advocate for abolition of pre-trial incarceration altogether. Or, to be generous to them, they advocate for abolishing most of it. It is difficult to understand, though, how wholesale pre-trial release makes sense as a solution. How does ignoring dangerousness cure inequity?
To be more explicit about this, it is surely the case that if a dangerous person has enough money in a pure money-bail system, he may be able to secure his release pre-trial, where a poorer person could not. Such a scenario certainly represents an inequity. But this is an argument for preventive detention of the dangerous rich guy, not for pre-trial release of the dangerous poor guy. Yet, bail reformers fight tooth and nail against procedural reforms like preventive detention.
As demonstrated, third-wave bail reformers rely on misplaced legal arguments and quixotic political arguments. This does not mean, however, that the reformers have been ineffective. On the contrary, they have been quite effective at pushing the pendulum to the chaos end of the spectrum. This is especially so at the state level judicial branch. The next installment will examine the path of third-wave bail reform at the state level, with an emphasis on Indiana where the Indiana Supreme Court led the way.