Making Bail

U.S. Supreme Court Cases

This is the fifth installment in the Making Bail series. You can find links to the prior installments here.

IN THE LAST piece in this series, we discussed the major federal statutes that have impacted bail practices in the U.S., as well as the related political movements. The other part of the federal system, of course, is the U.S. Supreme Court. The U.S. Supreme Court has been remarkably consistent on bail decisions. Despite strong political winds influencing statutory reform, the Supreme Court has closely aligned with the hundreds of years of experience, tradition, and history on bail that recognizes dangerousness and justice to victims as important factors. The Court has also continued to insist that bail determinations are best made at the individual level. This is best demonstrated by a few key opinions.  

In 1951, Loretta Stack was the secretary of a local California branch of the U.S. Communist Party. She was arrested for allegedly violating the Alien Registration Act. The U.S. District Court set her bail bond at fifty thousand dollars. Stack argued that this was excessive under the Eighth Amendment. The District Court denied Stack’s motion to reduce her bond. Rather than appealing from that order, Stack filed a Habeas Corpus petition, and appealed from the denial of the Habeas petition. The U.S. Court of Appeals affirmed, and the case went to the U.S. Supreme Court. The U.S. Supreme Court found that Stack should have appealed from the denial of the bond reduction motion and sent the case back to the District Court level. However, 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.”

Even though the quoted language is not the holding in the Stack case, and is inconsistent with the tradition and history of bail practices, it has been popularized by bail reformers ever since. It is also confidently, though improperly, quoted in nearly every motion for bond reduction filed in courts today. In fact, I read the Stack quote in a bond motion just this week. Other U.S. Supreme Court cases contradict the Stack holding, and judges should not be misled.    

As a case in point, another 1951 case also addressed the Eighth Amendment’s bail provisions. In Carlson v. Landon, some more communists were arrested. This time, however, they were not U.S. citizens. These communists were held without bail pursuant to a provision of the Internal Security Act of 1950. The defendants challenged being held without bail as violative of the Eighth Amendment to the U.S. Constitution. The U.S. Supreme Court in Carlson refused to release the defendants “on the ground that there was reasonable cause to believe that their release would be prejudicial to the public interest and would endanger the welfare and safety of the United States.” The Court found that:

The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus, in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable.

In Carlson, then, the Supreme Court reaffirmed that there is no U.S. Constitutional right to bail. It also emphasized dangerousness as a prominent factor in holding defendants pre-trial, in direct contradiction of the Stack dicta, which was decided at the same time.

Following these cases, thirty years passed before any significant U.S. Supreme Court bail cases arose. That changed following the passage of the 1984 U.S. Bail Reform Act. The 1984 Act reasserted dangerousness as a critical component of bail determinations. The U.S. Supreme Court cases addressing the constitutionality of this component of the Act affirm the importance of the dangerousness consideration.  

In the early 1980’s the FBI began listening to a lot of telephone conversations between Anthony “Fat Tony” Salerno and Vincent Cafaro. Fat Tony was the boss of the Genovese crime family of La Cosa Nostra, and Vincent Cafaro was his captain. The two operated an organized crime syndicate in New York City. While listening in, the FBI heard evidence of illegal gambling and loan sharking, extortion, fraud, racketeering, and conspiracy to commit murder.

In 1986, the Government charged Fat Tony and Vincent with these crimes and moved to hold them without bail through a process set forth in the 1984 Bail Reform Act. The defendants challenged the constitutionality of the act, alleging that the bail provisions violated the Eighth Amendment’s excessive bail prohibition and their Fifth Amendment substantive due process rights by inflicting punishment before trial. The case made its way to the U.S. Supreme Court.

The Salerno opinion, authored by Chief Justice Rehnquist, first finds that pre-trial detention does not constitute punishment before trial. The Court found that the 1984 Bail Reform Act process was “regulatory” not “punitive.” The Court stated that “Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing danger to the community is a legitimate regulatory goal.”

Next, the Court shot down the defendant’s Eighth Amendment argument. In doing so, Rehnquist quotes the 1951 U.S. Supreme Court Stack case which stated, “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.” Following this reference, Rehnquist writes:

While we agree that a primary function of bail is to safeguard the courts' role in adjudicating the guilt or innocence of defendants, we reject the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release. The above-quoted dictum in Stack v. Boyle is far too slender a reed on which to rest this argument. The Court in Stack had no occasion to consider whether the Excessive Bail Clause requires courts to admit all defendants to bail, because the statute before the Court in that case in fact allowed the defendants to be bailed.

Finally, the Court stated that, “The Eighth Amendment addresses pretrial release by providing merely that ‘excessive bail shall not be required.’ This clause, of course, says nothing about whether bail shall be available at all.”

These cases are the highlights, and set the broad parameters, of bail decisions at the federal level. The language in the Stack case, often quoted in support of the proposition that the sole aim of bail conditions is to secure the accused’s appearance in court, is not binding authority, nor is it historically or constitutionally accurate. The statement is merely dicta in a case that did not turn on the issue the quote addresses. Further, the Salerno case squarely contradicts the statement. Thus, under the U.S. Constitution, and the U.S. Supreme Court cases interpreting it, U.S. citizens have no constitutional right to bail. In instances where bail is available, a bail bond may not be excessive, per the Eighth Amendment. The Supreme Court does not define excessive, however. The Court also gives prominence to the dangerousness consideration in setting bail.

In the eternal battle between order and chaos, the U.S. Supreme Court has steadfastly favored order. It has done so even in the face of contrary political movements and resulting changes to federal statutes. Too often, the U.S. Supreme Court’s stance on bail is muted by popular political trends. The Supreme Court’s stance, however, is anchored in a sound evolutionary underpinning, and is consistent with the aims of bail practices dating back hundreds of years.   

The last couple of pieces in this series have surveyed the history of bail at the federal level. Most bail practice, however, takes place at the state level. It is to this state-level practice that we will turn in the next installment with an emphasis on Indiana.