What follows is a compilation of a series of articles on the history of bail published here over the last year. I just wanted it all to be in one place for your convenience. I hope you find it useful.
Introduction
BAIL AS WE KNOW It is a modern practice, yet its roots reach to the very beginning of humanity. It is an attempt to solve an age-old problem--how to properly balance order and chaos.
The world’s oldest creation myth, from ancient Samaria, offers insight. The myth features a battle between the gods Tiamat and Marduk. In the story, Tiamat, the goddess of saltwater, mates with Apsu, the god of freshwater, producing a multitude of lesser gods. These lesser gods run wild over the earth. They eventually kill Apsu, which enrages Tiamat. In response, Tiamat becomes the god of chaos, waging war against all the gods and bringing disorder and destruction to the earth. To combat this chaos, the lesser gods get together and lift up Marduk as their champion. Marduk wages war against Tiamat, who by now has produced an army of dragons. Marduk slays the dragons with a variety of weapons, then kills Tiamat with an arrow that splits her in two. Marduk then uses the pieces from Tiamat and the dragons he has killed to rebuild an orderly world. In so doing, Marduk becomes the lord of all the Samarian gods, said to be the most wise who helps the good and punishes the wicked.
Human creation myths, like Samaria’s, routinely emphasize order and chaos because taming chaos and creating order is humanity’s oldest problem. Humans must overcome chaos, create order, to survive and flourish. Human societies must not only bridle the chaos of the natural world but must also tame one another. To make order out of chaos, humans must control, to some degree, chaos-making individuals. That is the role the criminal justice system has evolved to play.
This will be a lengthy series about bail because bail is an important part of the criminal justice system. It is a microcosm of the whole. By examining the development and history of bail practices, we can better understand how we humans wage the eternal struggle between order and chaos, and what might be appropriate ways to go about it.
Where ancient Samaria sorted chaos and order through the battles of Tiamat and Marduk, we work out order and chaos inside courtrooms. A judge’s bail order balances safety, or danger to self and others, (order) and individual liberty (chaos). Too much order can become tyranny against the individual. Too much individual liberty can devolve into chaotic dangerousness. The history of bail, then, can be viewed as an effort to balance individual liberty and dangerousness.
From the time of the earliest tribunals until the rise of individual rights, marked by the adoption of the Magna Carta, there was a heavy emphasis on order, a near complete lack of individual liberty. Then, from the Magna Carta through the adoption of U.S. Constitution there is a long history of formulating and lifting up individual rights. Over the last 60 years, we have seen the rise of two bail reform movements in the United States. These movements have emphasized the rights of the individual to the point of dangerousness. In consequence, there have been reactionary movements in both instances. We are currently amid the most recent of these two bail reform movements, and in the infancy of the reaction to it.
In this series on bail, we will explore all of this in much more detail. We will wrestle mightily with Tiamat and Marduk in the process. Hopefully, by the end, judges, lawyers, and lawmakers will have a better understanding of society’s oldest question—how to properly balance order and chaos?
The origins of bail
IN THE introduction, I noted that bail has deep evolutionary and historical roots. From the beginning, humans have been in a struggle between order and chaos. We have had to contend not only with the chaos of the world, but with the chaos caused by our fellow man. Humans have been committing offenses against order and against one another forever. This fact creates a problem that must be solved if a given society is to flourish.
In early societies, offensive behavior was constrained by evolved human tendencies toward punishment reinforced by culture and tradition. I have written previously about mechanisms that have evolved within humans and their societies to do this. The three primary mechanisms are the guilty conscience, retaliation by victims, and third-party punishment. You can read about the development of those practices here.
Third-party punishment is the most effective and formalized of these mechanisms. It is a system whereby a member or members of a group, other than the victim, punish a wrongdoer on behalf of the victim or the group. In early third-party punishment practices, the third-party was often family members of the victim. This is sometimes referred to as blood feud. While blood feuds could be effective at securing justice for the victim and his family, they tended to devolve into intertribal conflict or all-out war. Because of this, third-party punishment systems continued to evolve. Ultimately, the concept of tribunals arose for resolving disputes. This elevated third-party punishment from kin networks to more formal bodies representing the collective. These early tribunals formed the basis of our modern criminal justice systems.
With the development of early tribunals came a taxonomy of offenses, though until more modern times a loosely defined one. For some offenses, such as “persons who were considered to be a danger to society, false accusers, persons of evil repute, habitual criminals, along with persons caught in the act of a crime or the process of escaping,” offenders were never released from incarceration pending “trial.” Instead, they were either mutilated or summarily executed, as noted by Timothy Schnake in The History of Bail and Pretrial Release. Accused offenders not immediately killed or maimed were generally left free until “trial.” Typically, this meant resolution by the ruler or king.
For those categories of offenses where the offender was not immediately drawn and quartered or met some other horrific end, the most likely “punishment” was to pay a “fee” to the victim or his family. These “fees” went by various names depending on where you were, but a common name for many centuries in many places was wergild. A wergild was a monetary value established for a person's life, to be paid as a fine or as compensatory damages if that person was killed or injured by another. The king would enforce payment of the wergild to the person or his surviving family.
The wergild or fee system continued for certain offenses, even as tribunals became more formalized. Our modern system is based heavily on the model developed in ancient Rome. Roman authorities, like earlier societies, still used creative methods of capital punishment for many offenses. However, Roman citizens who believed themselves to be crime victims had recourse outside of the capital and corporal punishment imposed by the state. Citizens could bring their case to a Praetor, a Roman official, who would appoint a Judex, what we call a judge, to oversee a dispute where wergild was the remedy.
Later, the Anglo-Saxon legal system modeled Roman practices. Regarding offenses where the payment of wergild might be the punishment, it was impractical to hold offenders in incarceration. It sometimes took a very long time for a magistrate to arrive to conduct the trial, and jail facilities were sparse. However, the Anglo-Saxons were concerned about offenders fleeing responsibility when released. To remedy this, a rudimentary “bond” system developed where the offender would be released from imprisonment if he or someone on his behalf put up a surety equal to the potential wergild. As noted by John-Michael Seibler and Jason Snead in their paper, The History of Cash Bail, for the Heritage Foundation, “This early system of bail killed two birds with one stone: it simultaneously provided strong incentives to sureties to ensure their charges appeared in court, and guaranteed payment to the victims if they fled.”
In these wergild cases, the practice of putting up a surety equal to the wergild would become what we recognize today as a bail bond.
No matter the category of case, though, the primary emphasis of these early justice systems was on maintaining order. This emphasis was present both in the capital or corporal punishment category of offenses, and in those cases where wergild would be the remedy. The wergild payment, as an early “bail bond” practice, had the specific goal of ensuring that wrongful acts were punished, and victims were compensated.
For early humans to function collectively, systems had to evolve to deal with wrongdoers. It was necessary to discourage wrongdoing, and to make sure victims experienced justice so that the tribe did not devolve into internecine conflict. This emphasis on punishment and justice for the victim persisted from the earliest systems through the Medieval age. During that time, marked by the adoption of the Magna Carta in 1215, formally recognized individual rights began to balance out the existing criminal punishment systems. We will next discuss the rise of individual rights in the Middle Ages, and how the recognition of those rights impacted bail practices in the Anglo-Saxon and early American justice systems. We will find that even with the rise of individual rights, bail practices remained oriented toward order.
The rise of individual rights
FOLLOWING THE fall of the Roman Empire in 476 AD, the one thousand year period of history referred to as the Middle Ages ensued. Also called the Medieval Era, the Middle Ages is characterized largely by population loss, unstable centralized authority, and dynamic war and conquest. Within this tumult, however, there was the rise of kingdoms, efforts to formalize systems of justice, and the introduction of individual rights.
In 1166, England’s King Henry II publish the Assize of Clarendon, an act that created Assizes, or travelling courts, and trial by jury. The Magna Carta, adopted in 1215 by King John of England, also formalized the right to trial by jury. While the right to trial by jury existed prior to the adoption of the Magna Carta, the document stands out in history as marking the formal rise of individual rights.
With the advent of travelling courts, it became important to determine which offenders would be held in incarceration awaiting the Assize, and which would be released during that time. Initially, that decision was left to sheriffs, who were local agents of the crown. Too many sheriffs, however, abused their discretion by starting a lucrative practice of accepting bribes to release or hold prisoners. The First Statute of Westminster was adopted in 1275, in part, to solve the problem of the bribable sheriff. Chapter 15 of the statute specifically addressed bail by listing which offenses were bailable and which were not. The statute also had a provision for removing corrupt sheriffs from office. Written originally in French, Chapter 15 has been translated as, “no mans person shall be restrained or imprisoned by any Authority what so ever, before the law hath sentenced him thereto, if he can put in sufficient securtie, bayle, or mainprise, for his appearance, and good behavior in the meane time, unlesse it be in Crimes Capitall, and Contempts in open Court, and in such cases where some expresse act of Court doth allow it.” To put it more plainly, it says that all offenses are bailable, except for capital crimes, contempt of court, and any other crimes deemed not bailable by express statute. Henceforth, bailable offenses would be determined by statute, not by local sheriffs.
The First Statute of Westminster was simply a restraint on a sheriff’s ability to determine which offenses were bailable. The Statute did not restrain the king or other officials appointed by the king. It also did not address what amount of bond may be required for bailable offenses. The authority to set the amount of bail bonds belonged to a wide range of officials appointed by the king, including sheriffs and judges.
Enterprising minds may notice the loophole created by the First Statute of Westminster. Since it did not address the amount of bond, some of the malfeasance surrounding the bail or no bail decision relocated to the question of what amount the bail bond should be. There was no further reform in this area, however, for the next four hundred years, reflecting, perhaps, the challenge in balancing the rights of individuals with the danger they posed. The age-old question of balancing chaos and order.
In 1689, the English Bill of Rights addressed the proper amount of a bail bond for the first time, though the language maintained broad discretion. The statute stated, “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” To summarize the state of English law immediately preceding the U.S. Constitution, John-Michael Seibler and Jason Snead in their Heritage Foundation article on the history of cash bail wrote:
By the end of the 17th century, English citizens could point to centuries of statutory and common law affording a qualified right to pre-trial release. In England, this right to release was understood to be available only for certain classes of offenses and was unrelated to the ability of the accused to meet the requirements of bail—that is, if sufficient surety could not be obtained, the accused was most often detained. Thus, pre-trial release was a system designed to balance the interests of the accused with the interest of society in ensuring that wrongful acts be punished, and criminals be prevented from absconding. There was no guarantee that a suspect would be released pending trial. That general framework is still with us today.
As the American colonies developed throughout the 1700’s, they imported much of English law and tradition, including the criminal justice framework. The colonies struggled, as the English had, with order and chaos, in balancing individual liberty with dangerousness, punishment and justice for victims. The colonies adopted a patchwork of statutes constituting variations on practices in England. Some colonies even had laws against setting bail bonds too low. Judges and sheriffs who set the bond too low could be fined and required to compensate victims themselves.
Ultimately, the colonies came together to form the United States with the adoption of the U.S. Constitution in 1789. The U.S. Constitution says very little about bail. The original Constitution did not address bail at all. Later, the Eighth Amendment was adopted, importing the language from the 1689 English Bill of Rights relating to bail. Just as the English version, the Eighth Amendment states, “excessive bail shall not be required.”
Thus, there is no U.S. Constitutional right to bail. The Constitution does not define which crimes are bailable. The document prohibits only excessive bail in those instances where bail is allowed by statute, but it does not define excessive.
This comports entirely with the long history of bail practices ranging from primitive tribunals to the Roman Empire, through the Middle Ages, and the development of the Anglo-Saxon legal system. These historical practices had a heavy emphasis on order, insuring punishment and justice to the victim. Even after the rise of individual rights in English law and the U.S. Constitution, which was a tilt toward the chaos end of the spectrum, there remains in the law a healthy fear of dangerousness and a strong desire for justice for victims.
Bail and federal statutes
AS IT TURNS OUT, the U.S. Constitution says very little about bail. Much of bail in the U.S., then, is regulated downstream of the U.S. Constitution by statutes, court cases, state constitutions and court rules. In this section, we will focus on federal statutes regulating bail.
The first United States federal statute regulating bail came in the first Congress. In 1789, Congress passed the Judiciary Act, which provided that for “all arrests in criminal cases, bail shall be admitted, except where punishment may be death.” This act, like the U.S. Constitution, was consistent with long-standing bail practices dating back to the First Statute of Westminster in the year 1275.
Aside from the rise of the commercial bail bond industry, U.S. bail law remained stable again for the next 175 years. Things began to change in the 1960’s, however. Throughout the 1960’s and thereafter, U.S. federal statutes were susceptible to political winds, vacillating in the eternal battle between order and chaos, between individual liberty and dangerousness.
In 1961 the Vera Foundation (now called the Vera Institute of Justice) along with NYU Law School conducted a study called the Manhattan Bail Project. This project was designed to provide information to judges to encourage them to release defendants pre-trial on their own recognizance. The program in New York City was quickly replicated in cities across the U.S. Observing the bail reform practices in U.S. urban centers, U.S. Attorney General, Robert F. Kennedy, in 1963 instructed all U.S. Attorneys to recommend the release of federal defendants on their own recognizance in every practicable case. Kennedy also convened a National Conference on Bail and Criminal Justice in 1964, where he said:
Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. The factor is simply money. How much money does the defendant have?”
All this activity led to the passage of the United States Bail Reform Act of 1966. That act explicitly stated, contrary to hundreds of years of experience, history and tradition, that “the sole purpose of bail laws must be to assure the appearance of the defendant.” In this spirit, the statute did many things, including creating a presumption in favor of release on recognizance and permitting judges to place release conditions on a defendant, other than money bail, to assure appearance. The statute also specifically prohibited judges from considering dangerousness as a factor, except in capital cases.
Riding this political wave, a version of the 1966 U.S. Bail Reform Act was adopted in 36 states and the District of Columbia by 1971. Soon after these bail reform laws went into effect, the consequences of ignoring dangerousness surfaced.
With the passage of the 1966 Federal law and its implementation in Washington D.C., the District became a place where the effects of the bail reform law were most closely studied. An organization was established for that specific purpose, The Judicial Council’s Committee to Study the Operation of the Bail Reform Act in the District of Columbia, also called The Hart Committee. By 1969, the Catholic University Law Review published a paper by Warren L. Miller discussing the findings of the Hart Committee. Miller notes that in the first few weeks after defendants began to be released on their own recognizance without regard to dangerousness, “three separate homicides and a related suicide were attributed to persons released on bond.” Later, the Hart Committee reported that “crime committed by persons on bail in the District of Columbia go as high as 70 percent, and crime charged against persons released on bail continues at a significant level in the District of Columbia.” The Hart Committee’s experience matched the experience of those areas around the country where similar bail reform was enacted.
Things got so bad in Washington D.C. that local officials began lobbying Congress for help. In 1970, Congress passed a statute authorizing preventive detention in Washington D.C. This was the nation’s first preventive detention statute. (though this was the first preventive detention statute, the Constitution had always allowed preventive detention—bail statutes were an exception to this).
By the 1980’s, the public was fed up with rising crime, fueled, to some degree, by the 1966 Bail Reform Act. In 1980, Ronald Reagan was elected in a landslide, campaigning, in part, on a public safety agenda. This public sentiment continued throughout Reagan’s term, leading to the passage of the 1984 Crime Control Act. The Crime Control Act included bail reform via the 1984 Bail Reform Act.
The 1984 Bail Reform Act drew on the lessons learned after the passage of the 1966 Bail Reform Act. The 1984 act corrected for a glaring flaw in the 1966 Bail Reform Act. Where the ’66 law prohibited judges from considering dangerousness, the ’84 law required it when setting bond or other release conditions. Further, the 1984 reform adopted preventive detention, relying on the 1970 Washington D.C. preventive detention statute as a model. Under this new federal law, courts could detain certain felons pre-trial without bail if the court found, following a hearing, that the Government proved “by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.”
If you read the introduction to this series, you learned about the ancient Samarian gods, Tiamat, the goddess of chaos, and Marduk, the god of order. The 1966 law was the chaos god, Tiamat. The 1984 law was the order god, Marduk. The 1966 Bail Reform Act was a wild swing toward the chaos end of the spectrum, and the 1984 Bail Reform Act was a march back toward order. These acts influenced not only federal law, but court cases, state statutes, and state court rules across the nation. The swings in these federal bail practices were mirrored by the states, and the reverberation of these political and legal actions will be the topics of the next few sections.
Bail and the U.S. Supreme Court
IN THE PREVIOUS section, 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. Yet, 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.
While we have been discussing the history of bail at the federal level, most bail practice takes place at the state level. It is to this state-level practice that we will turn next with an emphasis on Indiana.
The history of bail in Indiana
LIKE MOST states, Indiana’s bail laws are inspired by the Anglo-Saxon legal traditions imported at our nation’s founding. Indiana, like other states, also takes strong cues from the U.S. Constitution, U.S. Supreme Court interpretations of the Constitution, and U.S. federal statutes. As such, the state’s history on bail largely tracks the history of bail at the federal level.
Prior to becoming a state, the Indiana territory was governed by the Northwest Ordinance. The Northwest Ordinance was adopted by the U.S. Congress in 1787 to govern the territory north and west of the Ohio River. As it relates to bail, the Northwest Ordinance stated in Article II:
The Inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by Jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law; all persons shall be bailable unless for capital offenses, where the proof shall be evident, or the presumption great; all fines shall be moderate, and no cruel or unusual punishments shall be inflicted; no man shall be deprived of his liberty or property but by the judgment of his peers, or the law of the land.
This language is consistent with the First Statute of Westminster from 1275 and the 1689 English Bill of Rights that we addressed in previous installments. It is also consistent with Congress’s first act addressing bail at the federal level, the Judiciary Act of 1787, which was passed commensurate with the Northwest Ordinance. This links Indiana with bail practices dating back hundreds of years.
The Indiana territory was regulated by the Northwest Ordinance until Indiana became a state in 1816, at which time the state adopted its own constitution. The 1816 Indiana Constitution mirrored the Northwest Ordinance bail language. It states, “all persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great.” Again, consistent with historical statutes and practices. In contrast, though, with the U.S. Constitution which contains no right to bail.
The Indiana Constitution was rewritten in 1851. At that time, a convention delegate from Floyd County, Mr. Thornton, tried to amend the bail language. He opposed the death penalty and sought to delete the language that prohibited bail in capital cases. Another delegate, Mr. Gibson of Clark County, proposed eliminating the “capital offenses” language, and replacing it with “murder and treason.” Mr. Gibson’s motion carried. A debate then ensued over whether murder and treason should be bailable.
Indiana Supreme Court Justice, Mark Massa, described this debate in a dissenting opinion in Fry v. State. He wrote:
Mr. Gibson then proceeded to explain why the change proposed by Mr. Thornton was unacceptable. He called it “one of the most startling innovations that had ever been introduced in our system..that a man who was willing to pay sufficient price might commit murder with impunity.” All that man would have to do is “pay the price at which the bail was fixed and then he might quietly put up his goods and leave the country.” Mr. Thornton defended his amendment, arguing all offenses should be bailable in order to “advance the cause of personal liberty.” He then asked for a vote, and his amendment was defeated ninety votes to nine.
Thus, the 1851 Constitution’s language, as written and as described in Justice Massa’s reprinting of the Gibson and Thornton debate, is consistent with the long history and tradition of bail going back to at least 1275. The only exception to this being the explicit inclusion of the right to bail in the state Constitutional language, unlike its treatment in the U.S. Constitution. Indiana’s efforts reflect the age-old question of balancing order and chaos. As the debate on the amendment makes clear, the delegates were concerned about individual liberty, but insisted that dangerousness and justice to victims remain paramount considerations.
Like its Constitutions, Indiana statutes have been heavily influenced by developments at the federal level. Statutes in Indiana have taken twists and turns similar to federal statutes as they flapped in the political wind.
In 1966, the U.S. Congress passed the Bail Reform Act that created a presumption of pre-trial release and prohibited judges from considering dangerousness when making bail decisions. Indiana, as it often does, lagged the national movement inspiring the 1966 law. However, in 1980, the Indiana legislature passed a statute setting forth the factors a judge should weigh when considering bail. Like the 1966 federal law, the 1980 Indiana statute did not contain explicit authority for a judge to consider dangerousness as a factor. Just as the 1966 federal statute, Indiana’s 1980 bail law was out of step with centuries of bail practice, history, and tradition in ignoring dangerousness.
In response to the rise in crime after the 1960’s criminal reform at the federal level, Congress passed the 1984 Federal Bail Reform Act. This new act specifically addressed dangerousness. Similarly, if again later, Indiana passed a 1996 bail reform law reasserting the importance of dangerousness. Courts this time were given explicit authority to consider whether “a defendant poses a risk of physical danger to another person or the community.” This put Indiana back in line with historical bail practices and then current federal law.
Thus, over the last 45 years, Indiana bail statutes have undergone a couple of significant reforms mirroring national political machinations. They have also been tweaked a bit here and there in ways less dramatic than the 1980 and 1996 revisions. This has all added up to what is, quite frankly, a nearly indecipherable Indiana bail statute, replete with multiple, and sometimes conflicting, factors and burdens of proof.
Importantly, though, following the 1996 revisions, Indiana bail statutes had all the pieces present in the treatment of bail throughout history. The statutes recognized individual liberty yet insisted on dangerousness as an important consideration. They allowed a healthy, judge-determined, balance between chaos and order.
Then along came a solution in search of a problem—today’s bail reform movement. That will be the topic of the next section.
The modern bail reform movement
I PREVIOUSLY 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 segment 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.
Modern bail reform in Indiana
AS NOTED in the previous section, a good marker for the beginning of the most recent bail reform effort is the second term of the Obama Administration. The Obama Department of Justice had the specific strategy of influencing states, particularly state judiciaries, to implement bail reform. To this end, the Administration used the Department of Justice’s National Institute of Justice to advocate for bail reform and to train “judicial actors.” This effort had tremendous impact across the country, and those efforts have persisted well past President Obama’s time in office.
Many states have adopted bail reform, both through their courts and through their legislatures. In 2019, New York City eliminated cash bail for most offenses. Last year, Illinois became the first state to eliminate cash bail for all offenses. Indiana, though traditionally a conservative state and generally lagging in political reform efforts, also embraced bail reform. Consistent with the aims of the Obama Administration, it was the Indiana Courts that led the way on bail reform.
The Indiana Supreme Court began exploring bail reform in 2013. By 2016, the Court issued Criminal Rule 26 regarding bail. The Rule requires that courts consider a pre-trial risk assessment instrument prior to making a bail decision. It also creates a presumption in favor of release without “money bail” unless the court finds a substantial risk of flight or danger. It is important to understand that Indiana’s new bail rule was promulgated amid the fervor of the most recent bail reform political movement. Even though Indiana’s Criminal Rule 26 specifically mentions dangerousness as a factor a judge should consider, the Indiana Supreme Court in issuing the Rule was widely understood to be encouraging pre-trial release. Reinforcing this notion, Indiana’s court-driven reform placed great emphasis on a new pre-trial risk assessment tool that screens only for likelihood of reappearance, not dangerousness. Thus, many judges responded by downplaying dangerousness in their bail decisions.
The best example of this is the Indiana Court of Appeals case, Yeager v. State. In 2019, John Yeager battered his girlfriend’s two-year old son. He was arrested and charged with level 3 felony aggravated battery. The trial judge considered the risk assessment tool and set a bail bond in the amount of $250,000. Yeager moved for a bond reduction. During the bond hearing, Yeager presented that he had little criminal history, that he had ties to the community, was working, and that he agreed to a no-contact order. His pre-trial release assessment tool found him to be low risk for failure to reappear at court. The trial judge denied Yeager’s request to reduce his bond. In doing so, the judge found that the nature and gravity of the alleged offense was serious, that Yeager faced up to 32 years in prison, and that the judge was not “confident public safety could be reasonably assured if Yeager’s bail were to be reduced.” Yeager appealed this decision.
The Indiana Court of Appeals took up Yeager’s case and ordered him released. The Appellate Court cited Indiana Criminal Rule 26, noting that Yeager scored a low risk for failure to reappear. The Court also stated that it found “no evidence presented as to how he [Yeager] could possibly be a threat to anyone.” Yeager’s girlfriend’s two-year old son would likely disagree with this finding.
The Yeager court embraced many of the legal arguments put forth by third-wave bail reformers. First, they followed the dicta in the U.S. Supreme Court case Stack v. Boyle, which states that courts can only focus on reappearance in making bail decisions. As noted in the last installment, Stack is not good law. It was directly swatted down by a subsequent U.S. Supreme Court decision, Salerno. It is contradicted by a history of written law going back to at least the year 1275. It is also out of line with the evolutionary underpinning of the criminal justice system.
The Indiana Court of Appeals also misinterpreted the presumption of innocence, reading it to prevent courts from looking to the facts of the instant case when considering dangerousness. Again, as pointed out in the last installment, the U.S. Supreme Court has made clear that the presumption of innocence does not apply in bail determinations. It is true, however, that many Indiana Supreme Court and Court of Appeals cases perfunctorily mention the presumption of innocence in bail opinions, muddling the issue for state-level analysis. Those cases generally do not rely on the presumption in their final analysis, though, and, to the extent that they do, they are wrong. For the best Indiana analysis on this point, see Indiana Supreme Court Justice Mark Massa’s opinion in the Indiana Supreme Court case Fry v. State, where he demonstrates that the presumption of innocence does not apply to bail determinations, even through state law. Justice Massa writes, “where Indiana appellate courts have considered the interaction between the presumption of innocence and the right to bail, we have tended to agree with our federal colleagues.”
Following Indiana’s bail reform push, many courts across the state made and continue to make the same mistakes as the Yeager court, to deleterious effect. The bail reform movement is a subset of a larger soft-on-crime movement that has swept the country over the last decade. These reforms have had a negative impact, and bail reform, in particular, has played a role. Studies (see here and here) have shown that bail reform is implicated in rising crime in Chicago. Violent crime tripled in California after bail reform, according to one study. The U.S. has experienced a 25% decrease in the number of people imprisoned, a 15% decline in the number of people held in jail, and a 26% decline in the number of arrests effectuated by law enforcement officers. This would be a good thing, except that it has been accompanied by an unprecedented surge in violent crime. Indiana, too, has been negatively impacted. Indianapolis has experienced the most significant crime wave in the last 200 years.
There is hope, however. Recently, several states have begun clawing back their bail reform efforts. Indiana, too, has taken steps to reform the reform. These bright spots will be the topic of our next and final segment.
Hope
OVER THE LAST DECADE, the federal government and many states have been in the throes of a soft-on-crime movement similar to what this country experienced in the 1960s. The mistakes of the 1966 U.S. Bail Reform Act have been repeated. As a result, crime has been on the rise again, this time predominantly violent crime. However, very recently there has been a push in the other direction, both across the country and here in Indiana. As the final installment in this series, we will end on positive notes.
In 2019, New York City eliminated money bail for most offenses. Crime exploded. New York residents did not like it and expressed their distaste at the polls. In 2022, Republicans running on crime issues flipped seven of New York’s Congressional seats. Also in that election, New York’s Governor, Kathy Hochul, barely won reelection in a race where crime was the prevailing issue. Narrowly avoiding defeat got the attention of the Governor, and in 2024 she implemented new bail reform. New York’s new bail law now allows judges to consider dangerousness when making bail determinations.
Indiana has also begun to recognize issues with bail reform. In the last installment, I discussed the Yeager decision from the Indiana Court of Appeals. In that case, the Court of Appeals declined to consider dangerousness, and believed that it could not rely on the facts of the case due to the presumption of innocence. The Court of Appeals made these mistakes because the momentum of the push for bail reform was perceived to emphasize pre-trial release above other considerations. To the Indiana Supreme Court’s credit, they understood this and subsequently issued an opinion reasserting the importance of considering dangerousness.
In Dewees v. State, the Indiana Supreme Court took the opportunity to explicitly state that “we hold that these statutory reforms enhance, rather than restrict, the broad discretion entrusted to our trial courts when executing bail. What’s more, a trial court can and should exercise that discretion to protect against the risk of flight or potential danger to the community.”
The Indiana Legislature has also recently acted to make sure dangerousness is properly considered in bail decisions. In 2023, the Indiana General Assembly took the first step in passing an amendment to the Indiana Constitution to allow preventive detention. Under Indiana’s 1851 Constitution, all crimes are bailable except murder and treason. To amend this provision, new language must pass two, separately elected legislatures, then be ratified by a ballot measure. The proposed amendment passed in 2023 and will be up again in the 2026 legislative session. Assuming it passes through the legislative process at that time, it will be on the 2026 general election ballot for ratification by the voters. The new proposed language would allow judges to hold defendants without bail for any crime where the defendant poses a “substantial risk to the public.” This is another positive step, but there is more work to do here in Indiana and nationwide. Let’s hope the trend continues.
We began with a lesson about Tiamat, the goddess of chaos, and Marduk, the god of order. Their story is humanity’s oldest story, the eternal battle between chaos and order. Part of the chaos of the universe is the chaos created by certain people. The criminal justice system is the tool humans have evolved to control these chaos-making individuals. The bail process is an exemplar in the criminal justice system of chaos and order decision-making.
From nascent tribunals in early human societies through the Middle Ages, the justice systems and rudimentary bail considerations had a heavy emphasis on order. Dangerous individuals were simply killed or mutilated. In those categories of crimes where offenders were left free pending trial, they were required to post a wergild, a money deposit in an amount equal to the calculated damages they had caused. Regardless of the type of offense, controlling for dangerousness and assuring justice for victims was paramount.
During the Middle Ages, we saw the rise of individual rights. The emphasis on individual rights reached an apex, after hundreds of years of development, with the adoption of the U.S. Constitution. Yet, even as individual rights gained prominence, policies throughout the era maintained a strong instinct for order regarding bail determinations. Most significantly, the U.S. Supreme Court’s decisions on bail affirm this proposition.
However, twice in modern history our society has taken an eye off dangerousness when it comes to bail decisions. The first was the soft-on-crime political movement in the 1960s that delivered the 1966 U.S. Bail Reform Act. That act specifically prohibited judges from considering dangerousness when making bail determinations. The predictable result of skyrocketing crime ensued, resulting in a course correction with the 1984 U.S. Bail Reform Act. The second instance of disregarding dangerousness is going on now. The modern bail reform effort is based on unsound legal theories and unfounded political and sentimental arguments, yet the effort has taken hold at the state level. It has been particularly prominent in state court systems. Uncharacteristically for Indiana, the Indiana Supreme Court led the way as Indiana followed national trends on recent bail reform.
Just as in the 1960s, we are experiencing record-setting crime due to the reform efforts. Sadly, this time it is predominantly violent crime. We are just starting to see the backlash with some policy changes and state court decisions reemphasizing dangerousness. Hopefully, there will be more of this.
I understand that this has been a long series on an esoteric topic. However, the last few years of criminal justice reform, including bail reform, have done a lot of damage. My hope is that this series will give judges and policy makers a solid grounding in these things: the evolutionary underpinnings of our criminal justice system; the hundreds of years of history emphasizing dangerousness in release decisions; the steadfastness of the U.S. Constitution and U.S. Supreme Court decisions that insist dangerousness is paramount; the mistakes of the 1966 U.S. Bail Reform Act; the weak legal and political arguments of modern bail reform; and the ways in which all of this applies to and has played out in Indiana. It is a lot, but bail determinations run deep. In making release decisions, we are attempting to answer humanity’s oldest question, we are wrestling with Tiamat and Marduk, we are balancing individual liberty and dangerousness, we are considering nothing less than the eternal struggle between chaos and order.