Recovering Constitutional Protections in the Excessive Bail Clause

A Right to Bail: Recovering Constitutional Protections in the Excessive Bail Clause

by Nicolas Cathcart

A Thesis Submitted to the Faculty of The Wilkes Honors College

in Partial Fulfillment of the Requirements for the Degree of Bachelor of Arts in Liberal Arts and Sciences with a Concentration in Political Science

Wilkes Honors College of Florida Atlantic University Jupiter, Florida December 2019

Signature Page A Right to Bail: Recovering Constitutional Protections in the Excessive Bail Clause by Nicolas Cathcart

This thesis was prepared under the direction of the candidate’s thesis advisor, Dr. Timothy Steigenga, and has been approved by the members of her/his supervisory committee. It was submitted to the faculty of The Honors College and was accepted in partial fulfillment of the requirements for the degree of Bachelor of Arts in Liberal Arts and Sciences. SUPERVISORY COMMITTEE:

______Dr. Mark Tunick ______Dean Timothy Steigenga, Wilkes Honors College ______Date

Acknowledgements/Preface

First, I owe every good thing in my life to God above. I will be eternally grateful for His mercy and grace that He showers daily on my life.

Second, I must thank my parents. My mother diligently homeschooled me my entire life, and her focus on teaching me how to write made college essays less daunting. My dad was always encouraging me to pursue the potential he saw within me. I would not be the student I am without them.

Third, I wouldn’t be able to do this without my professors. Dr. Tunick challenged my beliefs in every class, forcing me to dig deep and reconsider why I believe what I believe. Dr. Steigenga patiently endured my dozing in class, and he was an incredible advisor. Dr. Baima made philosophy both fun and approachable. Dr. Jakee helped show me that Kelo was one of the worst Supreme Court decisions of all time, and he very graciously dealt with all my classroom foolishness. I don’t have space to explain how much of an impact these wonderful scholars and teachers left on my life. They are deeply appreciated.

Fourth, I need to acknowledge my classmates and friends. Gianni patiently walked me through every study guide when I had no idea what to do. It is fair to say that his tutoring is the reason I have the grades that I do. Keith gave me new perspectives on politics. Sarah, Sara, David, Jackson, Cody, Courtney, Desiree, and Nick were all good friends and made college fun. Lastly, no acknowledgement would be complete without a shout out to my roommates. Camden, Olujimi, Sanjay, Anthony, and Keith, my year in the dugout with you was one of the best years of my life. I don’t have space to list all the other lifelong friends I made at the Honors College, but they all have left their mark.

Fifth, I want to thank Kingdom Club. To Sam, Aaron, Zion, Micael, Erica, Sydney, Keith, Camden, Jimi, Sanjay, Jill, Ravenne, and all the others: thank you. I loved the fellowship and memories, but most of all, I love how you pointed me to the Lord. It was a privilege serving with you.

iii

Abstract Author: Nicolas Cathcart Title: A Right to Bail: Recovering Constitutional Protections in the Excessive Bail Clause. Institution: Wilkes Honors College of Florida Atlantic University Advisor: Dr. Timothy J. Steigenga Major: Bachelor of Liberal Arts and Sciences Concentration: Political Science Year: 2019

The 8th Amendment forbids excessive bail, but this essential Constitutional protection has been undermined. The Supreme Court held in U.S. v. Salerno that the Constitution does not entitle defendants to bail and allowed federal courts to deny bail if they deem the defendant a threat to the community. However, both history and the current problems in the bail system demonstrate the Court erred in its ruling. Contrary to Salerno, the 8th Amendment was intended to provide a right to bail for all defendants who posed no threat to the judicial process. In order to protect essential rights of due process and presumption of innocence, Salerno ought to be overturned, a right to bail ought to be found within the Excessive Bail Clause, and this right should be incorporated to the states.

Table of Contents

Abstract ...... iv Table of Contents ...... v Introduction ...... 1 Chapter 1: The Bail System and Its Problems...... 2 What is the 8th Amendment? ...... 2 What is Pretrial Detention? ...... 2 The Current Pretrial Detention System ...... 3 Problems in the Bail System ...... 14 Chapter 2: The Solution and How to Get There ...... 22 The Remedies...... 22 The Right to Bail ...... 25 Dealing with Salerno ...... 46 Beyond Salerno ...... 57 The Problem Solved ...... 60 Conclusion ...... 61 References ...... 63

Introduction You have broken no law. You are not convicted of any crime. Despite this, you sit in jail.

Over a month passes. You lose your job. You cannot pay rent, so you lose your apartment.

Government officials pressure you into pleading guilty, just so this nightmare ends. Does this sound like a dictatorship or totalitarian regime? Surprisingly, this is a reality that happens in the

United States. Hundreds of thousands of unconvicted and potentially innocent defendants sit in jails every day.

How could this happen? What about presumption of innocence? Do you not have rights that are protected under the 8th Amendment? The 8th Amendment to the United States

Constitution, reads “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Does this amendment mean nothing? Unfortunately, in the

United States, 8th Amendment bail protections have been undermined. This has helped endanger and undermine the rights and due process of defendants on both the federal and state level. In order to restore and uphold these essential freedoms, the Supreme Court decision US v. Salerno should be overturned, a right to bail ought to be found within the Excessive Bail Clause of the

8th Amendment, and this right should be incorporated to the states.

Chapter 1: The Bail System and Its Problems.

What is the 8th Amendment?

The 8th Amendment reads in its full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”1 This amendment can be broken down into three key clauses. First, is the Excessive Bail Clause. Second, is the Excessive Fines

Clause. Third is the Cruel and Unusual Punishment Clause. The important clause for this paper is the Excessive Bail Clause (“Excessive bail shall not be required”).

What is Pretrial Detention?

When a person is arrested, they are held in jail before their trial—this is known as pretrial detention. Some defendants are released after their arrest, some have conditions set for their release, and some are kept in jail (either because they cannot meet the conditions or because they are denied pretrial release (termed “denied bail”)). If a prosecutor believes that a defendant may flee before his trial (termed “flight risk”) or pose a threat to the community, they can request that a judge set conditions that a defendant must meet to be released. For instance, money or other assets can be required and held as collateral until the trial date. This is known as requiring the defendant to post bail. If the accused appears at trial, the money/assets are returned. If a judge is concerned that the accused will not appear at trial if let out of pretrial detention, they can set the bail very high to either make affording the bail practically impossible or make bail so expensive that the accused will want to appear at trial to get his money/assets back. Additionally, under

U.S. law, bail can be denied if it is believed that no conditions will prevent the accused from

1 U.S. Constitution, amend. 8

fleeing or endangering the community. Furthermore, with certain categories of crimes (e.g. crimes of violence against minors2), a judge can outright deny bail and keep the defendant in pretrial detention.

The Current Pretrial Detention System

Federal vs. State

Describing the current state of pretrial detention in the United States is challenging because there are fifty-one different pretrial detention systems. Not only does each state have its own system and set of rules for pretrial detention, but there is also the pretrial detention system within the federal courts. The laws, rules, and structure of the federal pretrial detention system is going to look different than Florida or Georgia’s pretrial detention system. This poses several challenges. First, any problems within a state’s pretrial detention system or the federal pretrial detention system do not necessarily occur in every system of pretrial detention. A pretrial detention system could potentially have its own set of issues completely unique to its system.

The variety here means that some problems are only state problems while others are nationwide.

Second, a change to the federal pretrial detention system does not necessarily impact the state systems and vice versa. If reforms are to be passed legislatively, then both Congress and each state legislature would have to individually pass such reforms. Additionally, reforms that would help some states wouldn’t necessarily help other states. This is a complex and multifaceted system to analyze. Rather than providing a detailed analysis of each individual bail system, it is better to talk about the general way in which most states have set up their pretrial detention

2 "Release or detention of a defendant pending trial," U.S. Code 18 (2006), §§ 3142 et seq.

systems, while also looking at the federal pretrial detention system. This also involves discussing the rulings and laws that impact pretrial detention overall.

Current Case Law

To understand pretrial detention, one must understand the current jurisprudence surrounding pretrial detention. Only three U.S. Supreme Court decisions have dealt with the

Excessive Bail Clause: Stack v. Boyle (1951), Carlson v. Landon (1952), and U.S. v. Salerno

(1987).

In the first case, Stack v. Boyle, the petitioners were arrested under alleged violations of the Smith Act of 19403. Their bails were ultimately set at $50,000. They sued, contending that their high bails violated the 8th Amendment to the Constitution. Ruling in their favor, the Court reasoned that “Federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail.”4 Their reasoning did not stop at federal law, however. The

Court held, “this traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction…unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”5 It is important to note that while the Court used the current federal law in their decision, they also referred to being unequivocally offered bail for noncapital crimes as a “traditional right to freedom.” Furthermore,

3 This act “forbade any attempts to ‘advocate, abet, advise, or teach’ the violent destruction of the U.S. government.” (Thomson, Alexander. 2019. "Smith Act Of 1940”. The First Amendment Encyclopedia. https://www.mtsu.edu/first-amendment/article/1048/smith-act-of-1940).

4 Stack v. Boyle. 1951, 342 U.S. 1, 4.

5 Ibid.

the Court also refers to this “traditional right to freedom” as the “right to bail.” Additionally, the

Court found that, “the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is ‘excessive’ under the

Eighth Amendment.”6 Under this case, it appeared that a right to bail was found and protected as a traditional right by the Supreme Court. Furthermore, the Court seemed to acknowledge that the purpose of bail is to secure the appearance of the defendant. However, in the future, the Supreme

Court would change course.

The second case, Carlson v. Landon, dealt with foreign nationals detained under the

Internal Security Act for being communist. Each defendant was held without bond pending deportation. They sued, alleging a violation of the 8th Amendment. The Court ruled against them.

First, the Court found that Congress had a right to expel foreign aliens who were communists.7

Second, the Court ruled that “Deportation is not a criminal proceeding and has never been held to be punishment,”8 and as such, “The refusal of bail in these cases is not arbitrary or capricious or an abuse of power.”9 Third, the Court ruled there was no 8th Amendment violation because,

“the very language of the Amendment fails to say all arrests must be bailable. We think, clearly, here that the Eighth Amendment does not require that bail be allowed under the circumstances of these cases.”10 While this case seems to deny that there is any right to bail under the

6 Ibid, 5.

7 Carlson v. Landon. 1952, 342 U.S. 524, 535.

8 Ibid, 537.

9 Ibid, 542.

10 Ibid, 546

Constitution, it was not a criminal case. As the Harvard Law Review put it, “the actual holding does not directly concern criminal cases.”11 Rather, the Court’s ruling was limited to civil cases. Furthermore, the Court seemed to leave open the possibility that their ruling can be interpreted differently in criminal cases. In the above quote, the Court upholds the denial of bail

“under the circumstances of these cases.” This qualification could be interpreted as to read, “That in other circumstances - such as cases not involving alien deportation - the eighth amendment requires that bail be allowed.”12 Additionally, it seems unlikely that the Court intended to depart from its ruling or rationale in Stack. These cases were decided one year apart. Chief Justice

Vinson wrote the majority opinion in Stack and joined the majority opinion in Carlson.

Likewise, Justice Reed wrote the majority opinion in Carlson and joined the majority opinion in

Stack. Carlson includes no mention of Stack in the entirety of its majority opinion. If Carlson was intended to be a departure from Stack, it would be unusual for the same justices, who formed the majority just a year earlier, to reverse course with no mention or discussion of Stack.

U.S. v. Salerno is the third Supreme Court case dealing with Excessive Bail. In Salerno, the Court upheld the Constitutionality of the 1984 Bail Reform Act13, and gutted the idea of a

“right to bail.” First, the Court ruled that “pretrial detention under the Bail Reform Act is

11 "Preventive Detention Before Trial”. 1966. Harvard Law Review 79 (7): 1499. doi:10.2307/1338817.

12 Verrilli, Donald B. 1982. "The Eighth Amendment And The Right To Bail: Historical Perspectives”. Columbia Law Review 82 (2): footnote 44. doi:10.2307/1122277.

13 This federal law established the current statutes that govern bail. In the previous Bail Reform Act of 1966 “the judicial officer was generally required to impose the minimal conditions of release necessary to assure only that the defendant appear in court. Further, while an individual might be held for failure to post bail, detention without bail was permitted only in cases involving capital crimes.” However, “the Bail Reform Act of 1984 materially changed these provisions. In particular, the Act provides that, in reaching decisions on bail and release, the court shall give consideration not only to ensuring the defendant's appearance in court but also to protecting the safety of individuals and the community.” (U.S. Department of Justice, Bureau of Justice Statistics, Pretrial Release and Detention: The Bail Reform Act of 1984, by Stephen Kennedy and Kenneth Carlson. Washington DC, 1988. https://www.bjs.gov/content/pub/pdf/prd-bra84.pdf).

regulatory, not penal.”14 Second, the Court held, “that the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest.”15

Third, the Court denied that there was a right to bail under the 8th Amendment, both pointing to

Carlson, and finding that, “Nothing in the text of the Bail Clause limits permissible Government considerations solely to questions of flight.”16 Thus, the Court ruled that there is no right to bail under the 8th Amendment, and found that there can be many different, acceptable considerations for determining bail. The Court found that bail can be outright denied for reasons completely unrelated to flight risk. However, in a fiery dissent, Justice Marshal contended, “If excessive bail is imposed the defendant stays in jail. The same result is achieved if bail is denied altogether...It would be mere sophistry to suggest that the Eighth Amendment protects against the former decision, and not the latter.”17 Additionally, in this decision, the Court explicitly departed from the rationale in Stack. The Court referred to Stack’s logic regarding excessive bail as “dictum,” and stated that, “the Court in Stack had no occasion to consider whether the Excessive Bail

Clause requires courts to admit all defendants to bail.”18

It is important to notice three things about the current case law. First, the Court has denied that there is a right to bail within the U.S. Constitution. Second, the Excessive Bail Clause

14 U.S. v. Salerno. 1987, 481 U.S. 739, 746.

15 Ibid, 748.

16 Ibid, 754.

17 Ibid, 760, 761.

18 Ibid, 753.

of the 8th Amendment has never been incorporated19 to the states through the 14th Amendment.20

Third, the Court has deferred to Congress in determining which crimes are bailable.

Current Federal Law

The current federal laws governing the bail system were established in the Bail Reform

Act of 1984. These laws are spelled out in Title 18 U.S. Code § 3142 which establishes four options for judicial officers21 when determining pretrial detention for an accused individual.22

1. “released on personal recognizance or upon execution of an unsecured appearance bond”

2. “released on a condition or combination of conditions”

3. “temporarily detained to permit revocation of conditional release, deportation, or

exclusion”

4. “Detained”

Released on Personal Recognizance/Unsecured Appearance Bond

The first option for judicial officers is actually two options: released on personal recognizance (ROR) or unsecured appearance bond. Being released on recognizance simply means that there is no need for the defendant to post money for bail. The client is still out on bail,

19 “Neither the Supreme Court nor we have held that the Clause is incorporated against the States”. (Galen v. County of Los Angeles. 2007, 477 F.3d 652, 659. United States Court of Appeals, Ninth Circuit).

20 An explanation of how incorporation works can be found on pages 43-44.

21 Judicial Officers are defined in Title 18 U.S. Code § 3156 (b)(1): “the term ‘judicial officer’ means, unless otherwise indicated, any person or court authorized pursuant to section 3041 of this title, or the Federal Rules of Criminal Procedure, to detain or release a person before trial or sentencing or pending appeal in a court of the United States.” ("Definitions," U.S. Code 18 (2006), §§ 3156 et seq.)

22 "Release or detention of a defendant pending trial," § 3142.

but it is no-cost bail.23 An unsecured appearance bond is bail where the defendant promises to appear in court but is still “liable for the full amount of [the money] bail [bond] upon failure to appear in court.”24 Essentially, with both options, a defendant is not required to post any money to be released on bail.

It is interesting to note that the statute stipulates that a judge “shall” order a pretrial release under ROR or an unsecured bond.25 The two exceptions the statute gives are if the judicial officer “determines that such release will not reasonably assure the appearance of the

26 person as required or will endanger the safety of any other person or the community.” Here the statute gives the two purposes for either denying bail or setting a monetary bail. If the judicial officer cannot be reasonably assured the defendant will appear or believes the defendant will pose a threat to the safety of the community, then ROR or unsecured bonds are not options.

Release on Conditions

If the judicial officer cannot be assured that the defendant will appear and that the defendant does not pose a threat, then they can order a pretrial release on conditions. The statute specifically lists fourteen conditions (section (c)(1)(B)):

i. Supervision and custody by a court-designated person

ii. Employment

23 Bergman, Paul. 2019. "How Judges Decide To Release You On Your Own Recognizance, Or "OR"”. Nolo.Com. https://www.nolo.com/legal-encyclopedia/how-judges-decide-release-own-recognizance.html.

24 "GLOSSARY OF TERMS AND PHRASES RELATING TO BAIL AND THE PRETRIAL RELEASE OR DETENTION DECISION”. 2019. Washington Courts. https://www.courts.wa.gov/subsite/mjc/docs/GlossaryofTerms.pdf.

25 "Release or detention of a defendant pending trial," § 3142.

26 Ibid.

iii. Educational programs

iv. Restrictions on personal associations, travel, or residence

v. No contact with victim

vi. Regular reports to law-enforcement

vii. Curfew viii. No firearms or weapons

ix. No alcohol or drug use

x. Medical, psychological, or psychiatric treatment

xi. Forfeiting a certain value (e.g. money) if there is a failure to appear

xii. Bail bond xiii. Custody during specified hours xiv. Any other condition.27

Section (c)(1)(B)(xi) and (c)(1)(B)(xii) both explicitly deal with what is commonly

associated with bail: posting bond or agreeing to surrender a certain value upon failure to appear.

More specifically, if a judicial officer chooses the option in (c)(1)(B)(xii), the defendant would

need to “execute a bail bond with solvent sureties.”28

Section (c)(2) establishes an important restriction: “the judicial officer may not impose a

financial condition that results in the pretrial detention of the person.”29 Thus, a judicial officer

cannot use the conditions under this section to enact financial conditions that would, in practical

27 Ibid.

28 Ibid.

29 Ibid.

effect, deny pretrial release. As will be established later, a judicial officer can outright deny bail, but under this specific section, the financial requirements cannot be such that pretrial release would be financially impossible for the defendant.

Temporary Detention to Permit Revocation of Conditional Release, Deportation, or Exclusion

Section (d) is for those who are already under some form of probation, parole, pretrial release, or pre-sentence release. The section also applies to those who are neither citizens or legal permanent residents of the United States. Additionally, this section applies to these types of defendants if the judicial officer determines that these defendants are flight risks or pose a danger to the community.

Under this section, a judicial officer can detain a person for no longer than ten business days in order to notify the appropriate court, local/state officials, parole/probation officials, or

INS30 officials. If such authorities decline to take custody of the defendant, then the defendant

“shall be treated in accordance with the other provisions of this section [§3142].”31

Detention

If a judicial officer determines that no condition(s) will protect the community and ensure the appearance of the defendant at trial, they can order pretrial detention. In some cases, there is an assumption that the defendant will not appear. Such cases include:

30 The INS (Immigration and Naturalization Service) was abolished on March 1, 2003. Since then, its roles have been fulfilled largely by the US Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). ("Did You Know?: The INS No Longer Exists". 2011. USCIS. https://www.uscis.gov/archive/blog/2011/04/did-you-know-ins-no-longer-exists.)

31 "Release or detention of a defendant pending trial," § 3142.

1. If the defendant has been convicted of one of the following federal offenses (or a

comparable state offense)

a. A crime of violence

b. A crime where the maximum sentence is either death or life in prison

c. A crime where 21 U.S.C. 801, 21 U.S.C. 951, or chapter 705 of title 46 prescribe

a maximum sentence of ten years or more

d. Any felony provided the defendant has already been convicted of two crimes in

the above list.

e. Any felony that involves a firearm, dangerous weapon, or minor.

2. If the defendant committed one of the aforementioned crimes when on pretrial release.

3. If the defendant committed the crime within 5 years of either their conviction or release

from prison.32

In such circumstances, the burden is on the defendant to provide a rebuttal to these assumptions.

Detention Hearing

When evaluating whether “any condition or combination of conditions” can reasonably secure a defendant’s appearance and the community’s safety, a judicial officer is to hold a detention hearing.33

These hearings are to be held upon a motion from the attorney for the government or the judicial officer’s own motion in the following cases:

32 Ibid.

33 Ibid.

1. Any of the cases mentioned above in the “detention” sub-section.

2. Any case where there is a serious risk that the defendant will flee

Any case where there is a serious risk that the defendant will obstruct justice, threaten

jurors, and/or threaten witnesses.34

The defendant has several due process rights/protections during such a hearing. They have the right to counsel (or appointed counsel if they are indigent), present witnesses, cross- examine witnesses, and present information.35 A judicial officer’s determination that no combination of conditions can reasonably secure a defendant’s appearance and the community’s safety “shall be supported by clear and convincing evidence.”

A Note on State Laws

While the statutes described above deal explicitly with the Federal Pretrial Detention system, state systems function very much in the same way. Thus, “although the criminal process varies from state to state, it can be described in general terms.”36 Just like the federal system, in most states, a “judicial officer will then make the initial bail determination.”37 This determination, “generally involves two questions: First, is the defendant eligible for release; second, what conditions of release will reasonably ensure the defendant’s appearance on the next court date?.”38 In making this decision, the judicial officer usually is evaluating two types of risk,

34 Ibid.

35 Ibid.

36 Woodruff, Michael S. 2013. "THE EXCESSIVE BAIL CLAUSE: ACHIEVING PRETRIAL JUSTICE REFORM THROUGH INCORPORATION”. Rutgers Law Review 66: 248.

37 Ibid, 249.

38 Ibid.

“(1) the risk the defendant will fail to appear in court, and (2) the risk the defendant poses to public safety if released.”39 Thus, the state systems, by-and-large, function very similarly to the

Federal pretrial detention system.

Observations

The very last section of 18 U.S.C. 3142 states that, “Nothing in this section shall be construed as modifying or limiting the presumption of innocence.”40 However, this entire section essentially establishes a miniature trial, whereby a person accused of a crime can, before any conviction, be deemed a threat and locked away from society. The assurance that none of this will impact “presumption of innocence” rings hollow. In fact, the current statutes fall far short in protecting the accused.

Problems in the Bail System The impact of pretrial detention is vast. Over a third of unconvicted defendants are held in pretrial detention. Between the years 1998-2004, thirty-eight percent of state court defendants in the seventy-five largest counties were detained until their case deposition.41 This statistic means that on an average day, during that time period, 159,647 defendants were sitting in the jails of the seventy-five largest counties without being convicted of any crime.42 In 2016, sixty- five percent of inmates in county and city jails were unconvicted defendants awaiting court

39 Ibid, 250.

40 "Release or detention of a defendant pending trial," § 3142.

41 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Pretrial Release of Felony Defendants in State Courts, by Thomas H. Cohen and Brian A. Reaves. Washington DC, 2007: 2. https://www.bjs.gov/content/pub/pdf/prfdsc.pdf.

42 Ibid.

action.43 Based on this statistic, on the average day in 2018, 475,345 unconvicted inmates were sitting in city and local jails.44 The pretrial detention system is not a minor part of our criminal justice system. Rather, these numbers demonstrate that the pretrial detention system has a significant impact on both jail populations and defendants. Add in the fact that every single arrested criminal defendant comes into contact with the pretrial detention system, and the impact becomes even broader.

The pretrial detention system is massive, but is it problematic? After all, there are compelling reasons for not letting dangerous people or flight risks back on the street.

Unfortunately, the modern bail system is rife with problems.

The first problem is one of principle. Our justice system is commonly understood to rely on the presumption of innocence and due process. It is difficult to reconcile the pretrial detention of an unconvicted defendant with the belief that all people are “innocent until proven guilty.”

Being held without being convicted by a jury of our peers or a judge seems to undermine due process protections. This is not to argue that all pretrial detention violates these principles.

Rather, as will be demonstrated later, pretrial detention should be a necessary evil, not to be used any more than it must. Any criminal justice system ought to protect these principles as best possible, so it is difficult to reconcile the modern pretrial detention system with these principles.

The second problem is one of numbers. Keeping anywhere from one to two thirds of unconvicted defendants in pretrial detention shows that pretrial detention is not used only as a

43 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Jail Inmates in 2016, by Zhen Zeng. Washington DC, 2018. https://www.bjs.gov/content/pub/pdf/ji16.pdf.

44 Ibid.

necessary evil. In fact, Dr. Melissa Neal with the Justice Policy Institute cites evidence that “up to twenty-five percent more people could be safely released from U.S. jails while awaiting trial if the proper procedures are put in place.”45 Keeping thousands of potentially innocent defendants locked up without conviction, despite the fact that they could likely be safely released, demonstrates that there is something fundamentally wrong with the system.

The third problem is one of pressure. Pretrial detention is extremely difficult for the defendant. It is long. In the seventy-five largest counties from 1990 - 2004, the median length of detention for a defendant held on pretrial detention is forty-five days.46 It affects work. People held in pretrial detention “may lose their job due to absence.”47 For the self-employed, “pretrial detention effectively shuts their business down.”48 It can cause other types of loss and disruption.

Kids “may have to move to another parent or relative’s home, suffering disruptions in their education and home life.”49 People can also lose their homes or apartments.50 It can cause stigma, both for the defendant and their family. There is “personal shame” in being jailed.

Children are affected, since “the absence of a previously present parent is almost always

45 Neal, Melissa. 2012. Bail Fail: Why The U.S. Should End The Practice Of Using Money For Bail. Ebook. Washington, DC: Justice Policy Institute: 3. http://www.justicepolicy.org/research/4364. citing Baradaran, Shima, and Frank McIntyre. 2012. "Predicting Violence". Texas Law Review 90: 497. https://ssrn.com/abstract=1756506. This study “relies on empirical methods and a nationally representative fifteen-year dataset of over 100,000 defendants to determine what factors are reliable predictors of who will commit pretrial crime”, and concludes that “First, judges often detain the wrong people. Judges often overhold older defendants, defendants with clean records, and defendants charged with fraud and public-order offenses. Second, using our model, judges would be able to release 25% more defendants while decreasing both violent crime and total pretrial crime rates.” (Baradaran, 497).

46 Cohen and Reaves, 7.

47 Neal, 13.

48 Ibid, 14.

49 Ibid.

50 Ibid.

traumatic for a child, and children of inmates could be especially vulnerable to this trauma.”51 It is dangerous. One study by Dr. Nancy Wolff and Jing Shi of the Center for Mental Health

Services and Criminal Justice Research at Rutgers estimated that one in five male inmates are physically assaulted while behind bars.52 Jails are rough places.

These difficulties make pretrial detention very burdensome for any defendant. Due to these pressures, defendants may decide to enter plea bargains or plead guilty when they are actually innocent. One study, by simulating with students the pressures and circumstances a defendant faces, estimated that as many as “50 percent of innocent defendants pled guilty.”53 A system that uses pretrial detention and burdens to pressure innocent defendants into pleading guilty is a flawed system. The justice system ought to protect the innocent, not put them in a position where they feel pressured to plead guilty.

51 Schnittker, Jason, and Andrea John. "Enduring Stigma: The Long-Term Effects of Incarceration on Health." Journal of Health and Social Behavior 48, no. 2 (2007): 127. www.jstor.org/stable/27638699.

52 Wolff, Nancy, and Jing Shi. 2009. "Contextualization of Physical and Sexual Assault in Male Prisons: Incidents and Their Aftermath". Journal of Correctional Health Care 15 (1): 58-77. doi:10.1177/1078345808326622.

53 Neal, 26, citing Dervan, Lucian, and Vanessa Edkins. 2013. "The Innocent Defendant's Dilemma: An Innovative Empirical Study of Pleabargaining's Innocence Problem". The Journal of Criminal Law and Criminology 103 (1): 1. https://www.jstor.org/stable/24615609. This study, conducted with college students, sought to emulate the pressures and situations defendants find themselves in when pressured with a plea bargain deal. The researchers created a scenario whereby students were accused of cheating (some students were innocent, and others were guilty). The researchers sought to mirror the circumstances of a defendant being pressured to plead guilty (see page 32 of the study for how this was accomplished). The study found that 56.4% of innocent students accept the plea offer (Ibid, 33).

Furthermore, this study’s results were similar to a previous study conducted by Professors Melissa Russano, Christian Meissner, Fadia Narchet, and Saul Kassi in 2005. This study (Russano, Melissa, Christian Meissner, Fadia Narchet, and Saul Kassin. 2005. "Investigating True And False Confessions Within A Novel Experimental Paradigm". Psychological Science 16 (5): 481. https://www.jstor.org/stable/40064252.) also found that 43% of students falsely accused of cheating would falsely confess to cheating when pressured by interrogation tactics similar to police interrogation tactics.

The fourth problem is one of coercion. High bail and pretrial detention are used as leverage on defendants to get a guilty plea. Due to high case volume and a desire to get wins in cases, “Prosecutors can and often do ask judges for pretrial detention as leverage in pleabargaining discussions with people of limited financial resources.”54 Pretrial detention becomes

“a tool which helps prosecutors obtain…convictions.”55 Thus, the pretrial system can be used as a means to an end (a guilty plea), rather than a system where defendants are fairly tried.

The fifth problem is one of fairness. A defendant needs to plan and prepare a defense before their trial. However, “pretrial detention may affect the defendant's appearance and demeanor and will hamper him in preparing a defense.”56 It is common sense that a worn and tired defendant showing up to trial after a ride on a prison bus will have a different impact upon a jury than a defendant who has been well rested and slept in their own bed.57 Furthermore, pretrial detention makes it hard “for the suspect and his lawyer to find witnesses, gather and review evidence, and consult about strategy.”58 Lawyers can be hampered in preparing a defense when their client is incarcerated, because “Defense attorneys often find it difficult or impracticable to travel to detention facilities, to connect with shuttled clients, or to meet confidently with clients in detention facilities without fear of eavesdropping.”59 Thus, pretrial detention can harm the due

54 Neal, 25.

55 Klein, Douglas J. 1997. "The Pretrial Detention “Crisis”: The Causes And The Cure”. Journal Of Urban And Contemporary Law 52 (1): 291. https://openscholarship.wustl.edu/law_urbanlaw/vol52/iss1/.

56 Eason, Michael J. 1988. "Eighth Amendment: Pretrial Detention: What Will Become Of The Innocent?”. The Journal Of Criminal Law And Criminology (1973-) 78 (4): 1065. doi:10.2307/1143417.

57 Klein, 294.

58 Leipold, Andrew D. 2005. "How The Pretrial Process Contributes To Wrongful Convictions”. American Criminal Law Review 42: 1123-1165. http://link.galegroup.com/apps/doc/A140524317/ITOF?u=gale15691&sid=ITOF&xid=4ef2a154.

59 Broderick, Vincent. 1993. "Pretrial Detention In The Criminal Justice Process". 57 Fed. Probation 4, 7.

process of the defendants since their ability to present an effective defense is hindered.

Considering that some of these defendants are statistically likely innocent, it is troubling that their defense may be harmed simply by their pretrial detention.

The sixth problem is one of money. Sometimes defendants are held in pretrial detention because they cannot meet the requirements for bail. Of the thirty-eight percent of defendants mentioned earlier who are held on pretrial detention, thirty-two percent of them are held because they could not meet bail conditions, as opposed to having been denied bail.60 Frequently, defendants are required to post a money bail. For instance, “70 percent of people charged with a felony were assigned money bail in 2006.”61 In 2006, the average bail for a felony defendant in the seventy-five largest counties was $55,500. This is expensive. Overall, twenty-three percent of cases had a bail amount of $50,000 or more.62 These high bail amounts negatively affect low- income defendants. Simply because of their poverty, these defendants are “at risk of suffering the adverse impacts of detention in their cases.”63

Thus, it is apparent that the problems with the current pretrial detention are many. These problems are troubling, because they harm innocent defendants, disadvantage poor defendants, and cause significant due process concerns.

More troubling, the problems in the bail system reveal a system of systemic injustice. Dr.

Kenneth Kipnis, a philosophy professor at the University of Hawaii, describes two types of injustice that can occur in a criminal justice system: systemic and aberrational. Aberrational

60 Cohen and Reaves, 2.

61 Neal, 10.

62 Ibid, 13.

63 Ibid.

injustice refers to “incorrect outcomes of a sound system of criminal justice.”64 On the other hand, systemic injustices “result from structural flaws in the criminal justice system itself.” The problems described above reveal such structural flaws.

First, defendants held on bail are hindered in their defense preparations. Regardless of whether the decision to hold on bail was proper or not, it is a structural flaw in due process if detained defendants have a disadvantage at trial. Now, add in the fact that defendants are presumptively innocent until proven otherwise, and this problem becomes even more alarming.

The goal of a just system is to give the defendant the best possible opportunity to defend themselves.

Second, as previously argued, the system is focused on getting convictions, not on getting justice. Rather than prioritizing the protection of the person’s rights, the bail system becomes a tool in the hand of prosecutors to leverage out guilty pleas. A criminal justice system that focuses on achieving convictions instead of fairly trying the accused is not a just system. As has been stated repeatedly, defendants are innocent until proven guilty. Defendants ought not be viewed as already guilty criminals that just need a confession coerced out of them.

Furthermore, having experienced how rough jail is, inmates naturally do not want to end up in jail. If they must go to jail, they don't want to stay there long. Prosecutors take advantage of this fear. As already mentioned, prosecutors use pretrial detention to pressure defendants into pleading guilty. Furthermore, prosecutors seek harsher penalties for those who refuse to plea. In fact, “the sentences given to convicted defendants who have exercised their constitutional right

64 Kipnis, Kenneth. "Criminal Justice and the Negotiated Plea." Ethics 86, no. 2 (1976): 103. www.jstor.org/stable/2379810.

to trial are many times as severe as the sentences given to those who do not.”65 This aversion to jail, coupled with prosecutors seeking harsh pretrial conditions/detention and their threats to seek harsher penalties if they don't plead guilty, creates a system where defendants are pressured to plead guilty. In a just system, defendants should be allowed to pursue a rigorous defense with no negative repercussions. However, the current pretrial detention system gives prosecutors a tool by which they can discourage and deter vigorous defenses by defendants.

Therefore, the current pretrial system causes systemic injustice because, in multiple ways, it hinders a defendant’s ability to put up a fair and forceful defense. This is not a sound system with mistakes as byproducts; it is a system where mistakes stem from its very structure.

On the other hand, pretrial detention does serve a function. Having defendants skip trial and commit crimes is also harmful. How can both of these interests be balanced?

65 Ibid, 95.

Chapter 2: The Solution and How to Get There

The Remedies

The Options

The problems with pretrial detention system have been diagnosed, but what is the cure?

There are many different potential solutions. States could pass laws regulating and limiting money bail. Congress could amend Title 18 U.S. Code § 3142. The commercial bail industry could be regulated. Cash bail could be eliminated. However, none of these solutions would truly fix the problems in the pretrial detention system.

The fundamental problem in this detention system is that the key constitutional protections that were meant to prevent violations of due process and protect the innocent have been ignored or undermined. The Supreme Court’s decision in Salerno is one of the main culprits. This decision, as will be argued below, was wrongly decided and should be overturned.

Furthermore, the Supreme Court should find a right to bail in the Excessive Bail Clause of the 8th

Amendment. This right to bail would guarantee that all defendants are entitled to a bail amount that is not excessive, unless they pose a threat to the judicial process.66 Additionally, this right would require that bail be reasonably tailored to protect the integrity of the judicial process.

Finally, the Supreme Court should then incorporate the Excessive Bail Clause (and thus, the right to bail) to the states.

66 The current system allows detainment to protect the community as well (see supra at 12 and infra at 36).

Why This Method?

Overturning Supreme Court precedent and finding a right to bail requires serious effort and complex legal processes. Why pursue that path rather than simply enacting policies that could just as easily solve the problems that we see in the pretrial detention system? As mentioned earlier, pretrial detention varies vastly from state to state. A policy fixing the problems on the federal court level doesn’t necessarily solve the problems within state systems. In fact, while state laws mostly mirror the federal statutes, changing the federal statutes doesn’t guarantee that these states will follow suit. Thus, states may still retain the old, problematic bail laws.

Additionally, even if states change their policies, this doesn’t guarantee that these serious legal and social problems are solved for all American citizens. Protecting the innocent and due process are fundamental rights to which all Americans ought to be entitled. A citizen’s due process protections shouldn’t change simply because of the state they happen to be residing in at that moment. This is why so many of the constitution’s protections in the Bill of Rights are dedicated to protecting due process rights. The 4th Amendment 5th Amendment, 6th Amendment, 7th

Amendment, and 8th Amendment all protect citizen’s due process.67 Furthermore, any policies or

67 U.S. Constitution, amend. 4: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.”

U.S. Constitution, amend. 5: “No person shall…be deprived of life, liberty, or property, without due process of law.”

U.S. Constitution, amend. 6: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

U.S. Constitution, amend. 7: “In suits at common law…the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States.”

laws that states pass to remedy the issues with pretrial detention in their criminal justice system could be overturned or reversed by future legislators. These essential protections are liable to be taken away.

By finding and incorporating a right to bail, the rights of citizens are protected across the

United States, irrespective of what legislation and policies a state enacts. This way, a citizen’s due process rights are consistently and clearly protected. The indigent in New York would have the same fundamental constitutional right to bail as someone in Florida. Also, finding a right to bail helps deal with the vast variety and complexity inherent in a country that has fifty-one different bail systems. Each state is unique and has its own court intricacies. Rather than trying to overhaul each state’s particular bail problems, this solution provides a fundamental right that the state courts must conform to, so that rights are protected with consistency. Furthermore, finding and incorporating a right to bail provides defendants a mechanism by which they can challenge excessive bail and other disproportionate bail restrictions.68 Defendants would have constitutional standing to fight against violations of the Excessive Bail Clause. All these reasons make finding a right to bail in the constitution the best solution.

U.S. Constitution, amend. 8: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

68 Currently, defendants face a hurdle in challenging their bail conditions/pretrial detention. In 1982, the Supreme Court overturned the decision of the 8th Circuit which found that a denial of bail violated the excessive bail clause (Hunt v. Roth. 1981, 648 F.2d 1148). However, they overturned this decision because it was found to be moot upon conviction (Murphy v. Hunt. 1982, 455 U.S. 478). This illustrates a current problem for defendants. Any challenge to bail conditions or pretrial detention becomes moot upon conviction.

The Right to Bail

The Right to Bail Defined

The problems with the bail system are numerous and vast, but there are solutions. As already asserted, the solution best suited to address and repair the problems in the bail system is to find a “right to bail” in the 8th Amendment and incorporate this right to the states through the

14th Amendment.

While a “right to bail” has already been defined, it must be clearly explained.

Constitutional rights are not amorphous, but have specific boundaries, tests, and applications. For a classic example, the constitution includes a right of free speech. However, this right of free speech doesn’t include a right to yell “fire!” in a crowded movie theater.69 The right to bail is no different. In this case, a “right to bail” means that a defendant is entitled to be released unless there is a reasonable belief that no conditions or set of conditions would protect the integrity of the judicial process. Furthermore, it requires that bail conditions imposed be reasonably tailored to protect this integrity of the judicial process.

What does it mean to protect the judicial process? The judicial process is the entire criminal court system and its functions. Among other things, this includes the trial, the jury, the judges, and the witnesses. It is the process by which the accused is tried and judged. Thus, to protect the integrity of this process means preventing threats against the people involved (e.g. jury members) and securing the appearance of the defendant.

69 This is a paraphrase of Justice Oliver Wendell Holmes Jr. from Schenck v. U.S. 1919, 249 U.S. 47. In that case, he said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” (52).

However, a right to bail would not mean that bail must always be offered. There are circumstances where releasing the defendant would so threaten the judicial process that bail ought to be denied. First, bail can be denied if a defendant is charged with a capital crime (a crime where the sentence is either life in prison or death).70 The reason for this is simple. If the defendant is charged with a capital crime, it is highly likely that no condition or set of conditions would guarantee their appearance. The severity of the possible sentence is so extreme that a guilty defendant would have every reason to flee. Thus, the assumption is that no condition or set of conditions would secure their appearance at the trial. Second, a defendant can be denied bail if they threaten or are likely to endanger the jury, judge, or witnesses.71 If these people are endangered by the defendant, the integrity of the judicial process is fundamentally threatened.

Intimidated witnesses may not testify, or they may not testify honestly. Fearful jury members may not issue a fair and impartial ruling. A threatened judge may favor the defendant due to the threat. Thus, the judicial process would be undermined if these people were threatened. Third, those who will not appear at trial no matter what conditions are imposed can be denied bail.

Some clients (e.g. the ultra-wealthy or powerful) may be so well connected that no matter what conditions are imposed, they can and will flee. In such circumstances, there is a reasonable belief that the only way to secure his appearance at trial is by denying bail.

Why is protecting the judicial process’ integrity so important? Pretrial detention should be viewed as a type of necessary evil. In criminal law, an essential principle is “a person accused of a crime need not absolutely be compelled to undergo imprisonment or punishment until he has

70 "Preventive Detention Before Trial”. 1499.

71 Ibid, 1502.

been finally adjudged guilty in the court of last resort.”72 A person’s right to liberty is a core human right and should neither be taken away nor forfeited lightly. However, societies also have a vested interest in preventing and deterring crime. In order to uphold this interest while also protecting liberty, we have, as a society, decided “that crimes should normally be deterred by the threat of subsequent punishment, not by prior confinement.”73 To this end, we have established a criminal justice system, but “this system cannot operate if the threatened sanctions are not effectively imposed.”74 Actions such as fleeing one’s trial threaten the very ability of the system to operate. For this reason, “the state's interest in assuring the integrity of the judicial process outweighs the defendant's interest in pretrial liberty.”75 Both pretrial detention and bail is used to accomplish this purpose.

The History of the Right to Bail

A cursory overview of the right to bail’s history affirms that ensuring the integrity of the judicial process is the purpose and function of pretrial detention and bail. The right to bail comes from the English legal system. As the Court noted in Salerno, “the bail clause [in the 8th

Amendment] was lifted with slight changes from the English Bill of Rights Act.”76

72 Sandblom, Robert L. 1953. "Constitutional Law: Right To Bail”. Michigan Law Review 51 (3): 395. doi:10.2307/1285609.

73 "Preventive Detention Before Trial", 1502.

74 Ibid.

75 Verrilli, 331.

76 481 U.S. 739, 754.

Legislative History

The text of the 8th Amendment is almost identical to Section 10 of the English Bill of

Rights, which states “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.”77 The English Bill of Rights was not the only English protection of the right to bail. In addition to the English Bill of Rights, two other pieces of legislation completed the English right to bail: “the Petition of Right in 1627…[and] the Habeas

Corpus Act of 1679.”78

Professor Caleb Foote traces the history of these provisions and how they came to protect a right to bail. These three protections, “grew out of cases which alleged abusive denial of freedom on bail pending trial.”79 One of these cases was Darnel’s Case in 1627. In this case, five knights were jailed by Charles I, and challenged their imprisonment under the 39th chapter of the

Magna Carta, which reads, “no freeman shall be arrested, or detained in prison . . . unless…by the law of the land.”80 In the case, the Attorney General disputed the knight’s interpretation of that chapter, and “argued that the version of Magna Carta chapter 39… did not apply to pretrial imprisonment.” The judges would ultimately rule in favor of the Crown and deny release.

However, the case was heavily discussed by Parliament. Parliament did not want the decision in Darnel’s Case to stand, and thus, “it was against this background that the Petition of

Right was adopted.”81 This Petition of Right “prayed that ‘no freeman in any such manner as is

77 Woodruff, 282.

78 Ibid, 284.

79 Foote, Caleb. 1965. "The Coming Constitutional Crisis In Bail: I”. University of Pennsylvania Law Review 113 (7): 966.

80 Ibid.

81 Ibid, 967.

before mentioned be imprisoned or detained’ and thereby brought the force of the Magna Carta to bear upon pretrial imprisonment.”

A similar set of circumstances brought about the Habeas Corpus Act of 1679. A man named Jenkes was arrested and jailed for starting a riot. By law, Jenkes was supposed to be allowed bail. However, nearly a month later, “he was still trying in vain to get anyone to set and take his bail.”82 This case, among others, “contributed to the enactment of the great Habeas

Corpus Act of 1679.” This act, “provided in great detail for an habeas corpus procedure which plugged the loopholes and made even the king’s bench judges subject to penalties for noncompliance.”

The last of these three protections, the English Bill of Rights, was also enacted partially in response to abuses pretrial detention in England. Judges were “setting impossibly high bail…to thwart the purpose of the law on pretrial detention.”83 Parliament drafted a Bill of Rights and proposed it to William and Mary. In the preamble to the Bill of Rights, they listed abuses that the previous King, Charles II, had done. One of these abuses was that, “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.”84 In response to these abuses, they included the following right,

“Excessive Bail ought not to be required.” Thus, these three laws together formed “a three- legged stool” of protection of a right to bail for defendants accused of a crime.85

82 Ibid.

83 Ibid.

84 Ibid, 967-968.

85 Ibid, 968.

However, when this right was lifted into the U.S. Constitution, the Americans “left off one of the legs.”86 Both habeas corpus and the Excessive Bail Clause were incorporated into the

Constitution, but “the underlying right to the remedy of bail itself, which these enactments supplemented and guaranteed, was omitted.”87 This English history of bail helps prove that bail protections included a right to bail.

Laws before the Constitution enacted in the American colonies also seem to indicate that a right to bail was recognized, with exceptions given to protect the integrity of the judicial process. One such example is the Massachusetts Body of Liberties (1641) which reads, "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 securitie (sic), bayle (sic), mainprise (sic), for his appearance, and for good behavior in the meane (sic) time, unlesse (sic) it be Crimes

Capital, and Contempts in open Court.”88 Another example occurs in both the fundamental law of Pennsylvania (1682) and North Carolina (1776), which both state that "all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption great.”89 Note that in all these instances, bail had to be offered, unless the defendant was charged with a capital offense, which was because they were viewed as a flight risk. As

Blackstone’s legal commentary notes, capital offense exemptions to bail were because the accused in those cases were flight risks. Blackstone reasons, “For what is it that a man may not

86 Ibid.

87 Ibid.

88 Ibid, 975.

89 Ibid.

be induced to forfeit to save his own life?”90 Thus, these examples demonstrate that the exemptions in early laws providing a right to bail were only to prevent flight (which is a form of protecting the judicial process).

The pre-constitutional Congress also seemed to recognize and protect a right to bail. In

1787, Congress passed the Northwest Ordinance. This ordinance provided “for the government of the Territory of the United States northwest of the River Ohio.”91 In this ordinance, Congress provided “articles of compact” to protect the rights of the people in the territory. In Article 2, it reads, “All persons shall be bailable, unless for capital offenses.”

After the Constitution was ratified, Congress continued to seemingly recognize and protect a right to bail. In the Judicial Act of 1789, Congress established the federal judicial courts for the United States.92 The act states, “upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death.”

After the ratification of the U.S. Constitution in 1789, a right to bail continued to be protected and guaranteed by state laws/constitutions. In fact, “every state that entered the Union after 1789, except West Virginia and Hawaii, guaranteed a right to bail in its original state constitution.”93 Virtually all these states followed the same pattern. The state constitutions usually (with little variation) read, “[A]ll prisoners shall be bailable by sufficient sureties, unless

90 4 Blackstone, Commentaries *297.

91 "Northwest Ordinance; July 13, 1787". 2008. The Avalon Project. https://avalon.law.yale.edu/18th_century/nworder.asp.

92 "The Judiciary Act; September 24, 1789". 2008. The Avalon Project. https://avalon.law.yale.edu/18th_century/judiciary_act.asp.

93 Verrilli, 351

for capital offenses, where the proof is evident or presumption great.”94 Furthermore, these protections remained virtually unchanged for most of American history. In fact, “Most right-to- bail clauses were left unamended. The states that amended their bail provisions, with one exception, expanded the availability of the right.”95

Note that the Northwest Ordinance, the Judicial Act of 1789, and these original state constitutional provisions all require that all defendants “shall be bailable” (i.e. they are entitled to bail). Furthermore, note that these all only provide one exemption: capital offenses. As already asserted, this is because those accused of capital offenses are flight risks (which poses a threat to the judicial process). Thus, these protections show that the right to bail was protected throughout the early United States, and bail could only be denied in cases where the defendant was a flight risk (and thus, the judicial process was threatened).

In these laws, consistently only two reasons are given to deny bail. First, is in the case of capital crimes. Verrilli explains that “The right to bail remained intact, generally for all defendants arrested for noncapital crimes, throughout the nineteenth and twentieth centuries.”96

As already discussed, this is because a person with the threat of life in prison or death has little reason not to flee if released. Second, is if the defendant is a flight risk. This is “the fundamental tradition, embodied in most state constitutions for two centuries, that bail could be denied statutorily only to defendants who posed a risk of flight.”97 Fleeing a trial is one of the most common and basic threats to the judicial system’s integrity. Therefore, it is seen that throughout

94 Ibid.

95 Ibid, 353.

96 Verrilli, 353.

97 Ibid, 354.

the legislative history of the United States and England, the right to bail was guaranteed, with the only exceptions being when the defendant was a flight risk (and thus the judicial process was endangered).

Judicial History

While “relevant case history is scanty”98, several historical cases that do exist indicate that both federal and some state courts found a right to bail in the Constitution. In U.S. v. Motlow

(1926), the Seventh Circuit Court of Appeals considered whether the right to bail applies to defendants awaiting another trial after initial conviction. The Circuit Court cites the

“recommendation to District Judges by the conference of the Senior Circuit Judges, held in June,

1925” which stated that, “The right to bail before conviction is secured by the Constitution to those charged with violation of the criminal laws of the United States.”99 The Circuit Court in this case affirmed that recommendation, taking it “as a guide in this case.”

Another case from that time period, Garvey v. United States (1923), also addresses bail.

The Second Circuit Court of Appeals considered whether a defendant should have been admitted to bail after his conviction. The Circuit Court reasons that, “The theory of the purpose of bail pending appeal is not different than that given before conviction; it is to insure the presence of the accused when wanted to answer the charge…It of course insures the innocent against the injustice of any imprisonment in the event of an eventual acquittal of the charge.”100

98 Foote, 992.

99 U.S. v. Motlow. 1926, 10 F.2d 657, 662. Circuit Court of Appeals, Seventh Circuit.

100 Garvey v. United States. 1923, 292 F. 591, 593. Circuit Court of Appeals, Second Circuit.

In yet another case, McKnight v. United States (1902), the Sixth Circuit Court of Appeals ruled on whether a thrice convicted defendant should be admitted to bail. The Circuit Court held that, “detention pending the writ is only for the purpose of securing the attendance of the convicted person after the determination of his proceedings in error. If this can or will be done by requiring bail, there is no excuse for refusing or denying such relief.”101

An informative case comes from the Supreme Court of Iowa in 1845. Chief Justice

Mason, commenting on the provision in the Northwest Ordinance that “all persons shall be bailable, unless for capital offenses where the proof shall be evident or the presumption great,” stated that, “This is no new provision, but is in express terms incorporated into the constitutions of at least one-half of the States of the Union, and is the rule of action in all the rest. It is merely declaratory of the common law of the United States.”102

Across these cases, the various federal and state courts upheld the notion that all pre- conviction defendants, except for those accused of capital offenses, were entitled to bail.

Furthermore, in two of these case, McKnight and Garvey, both courts affirm the idea that bail is only to be used to insure the presence of the accused at trial. Additionally, in Motlow, the Circuit

Court references a recommendation made in 1925 by the conference of the Senior Circuit

Judges. This is significant for two reasons. First, the recommendation explicitly refers to a right to bail before conviction. Second, this recommendation was made at a conference of the Senior

Circuit Judges, which demonstrates that this view regarding a right to bail was not unique to one circuit. Thus, despite scanty case history, the cases that are relevant uphold a right to bail and

101 McKnight v. United States. 1902, 113 F. 451, 453. Circuit Court of Appeals, Sixth Circuit.

102 Hight v. United States. 43 Am. Dec. 111, 112. Supreme Court of Iowa.

affirm that bail's purpose is to secure the presence of the accused (which, as argued above, protects the integrity of the judicial process).

Past vs. Present

Now, one may ask, doesn’t the current pretrial detention system already affirm that defendants are entitled to bail unless they pose a threat to the integrity of the judicial process? To an extent, yes. A version of these standards is already affirmed in current federal statutes. 18

USC 3142 states that a prisoner is to be released on bail unless “the judicial officer determines that such release will not reasonably assure the appearance of the person as required.”103 However, while protecting the judicial process is one of the considerations of the current bail system, there is another factor introduced in the federal court system and a majority of state court systems by the Bail Reform Act of 1987. This factor is whether the defendant will

“endanger the safety of any other person or the community.”104

What is the problem with this factor? It does seem to be a reasonable factor to consider.

A society doesn’t want dangerous individuals running around before their trial, causing potentially more harm to others. However, not only does this factor gets rid of the right to bail but it also directly threatens both constitutional bail protections and the rights of the accused for four primary reasons.

First, denying bail based upon a prediction of a defendant’s danger to the community completely redefines and changes how bail has been used and protected for centuries. As already shown, when tracing bail protections all the way back to their English origins, the only reason to

103 "Release or detention of a defendant pending trial", § 3142.

104 Ibid.

deny bail has consistently been to prevent flight (which is protecting the judicial process). In fact, up until the Bail Reform Act of 1987 and Salerno, the right to bail was consistently guaranteed. The inclusion and legitimizing of the “threat to community” is a stark departure from historical precedent.

Second, this factor violates a defendant's right to liberty. The right to liberty is an essential right that should not lightly be taken away. That is why the constitution guarantees that a defendant shall not “be deprived of life, liberty, or property, without due process of law.”105

Justice Marshal explains in his dissent in Salerno, “our fundamental principles of justice declare that the defendant is as innocent on the day before his trial as he is on the morning after his acquittal.”106 Thus, pretrial detention is a necessary evil, only to be used when it must. As previously explained, the judicial system cannot function when defendants skip trial, threaten witnesses, or have every reason to flee. Pretrial detention arises out of this reality. It is not a tool to be used broadly by society to imprison those whom it fears. In fact, the constitution demonstrates that “The public interest in the prevention of dangerous acts is great, but there is an established method of protection against such acts: the threat of sanctions imposed through the criminal law. We have made the basic decision that crimes should normally be deterred by the threat of subsequent punishment, not by prior confinement.”107 Because liberty is an essential right to protect, we ought to only imprison those who are tried and convicted under the due process of law. Allowing the “threat to community” factor ignores this reality.

105 U.S. Constitution, amend. 5.

106 481 U.S. 739, 764.

107 "Preventive Detention Before Trial", 1502.

Third, including this factor gives a dangerous and broad power to both the courts and legislature to detain unconvicted defendants. Virtually any crime or criminal can be reasonably defined as being “dangerous to the community.” Crimes are dangerous to the community; that is why they are deemed crimes and outlawed! Thus, drug dealers, serial traffic violators, or repeated package thieves could all be deemed a threat to the community, denied bail, or given harsh bail conditions. This provision can essentially eliminate all bail protections. Furthermore, such a system “provides little protection for the accused who is thought to be dangerous…[because] the defendant who is detained on the basis of an inaccurate estimate of his dangerous tendencies is given little recourse.”108 Anyone can be or could become criminal. We shouldn’t detain or set bail conditions because of the possibility of future crime. That is a conviction before a trial. Permitting this factor becomes a blank check for judicial officers to deny bail and forfeit the defendant's right to liberty and presumption of innocence.

Justice Marshal demonstrates the dangerous absurdity in allowing this factor. He creates a fictional scenario where “Congress determines (not unrealistically) that a large proportion of violent crime is perpetrated by persons who are unemployed. It also determines, equally reasonably, that much violent crime is committed at night.”109 Because violent crime is a threat to the community, “Congress chooses a statute which permits, after judicial proceedings, the imposition of a dusk-to-dawn curfew on anyone who is unemployed.”110 Such a law would rightly be decried, but this law does the same thing that denying bail because of “danger to community” does. Certain people, without being convicted of a crime, have their liberty taken

108 Ibid, 1493.

109 481 U.S. 739, 760.

110 Ibid.

away because of the possibility that they may be a criminal in the future. This example highlights the deep problems with allowing such a factor.

Fourth, there are practical problems that arise from allowing this factor. This factor creates perverse incentives for judges to overly deny bail or set strict bail conditions for defendants. “If a judge rejects the motion [to hold on pretrial detention] and the defendant commits a crime, the judge will appear to have erred,”111 and thus judges may deny bail either out of an abundance of caution or to insulate themselves from potential criticism/backlash.

Additionally, there is no way to know when denying bail to protect the community is the correct decision. This is because “there will be no way to check the reliability of a prediction of dangerousness because an incarcerated cannot prove the prediction wrong.”112 A person who would never have done anything to endanger the community can be denied bail, yet such “errors will be invisible.”113 Because of the very real possibility of misidentification, these people, “will be subjected to the hardship and indignity normally reserved for convicted criminals after trial.”114

Objection: Protecting Judicial Process vs. Community Safety

One could object: “why is the ‘protecting the judicial process’ factor acceptable but the

‘danger to community’ factor is unacceptable? In both cases a potentially innocent person is detained because of the possibility they will commit a future crime. In one case, the possible

111 Eason, 1068.

112 Ibid.

113 Ibid.

114 Ibid.

future crime is skipping trial, and in the other case, the potential future crime is harming the community.” Looking at each of the arguments above dispels this challenge.

First, using pretrial detention and bail conditions to protect the integrity of the judicial process is seen throughout the history of the right to bail. As demonstrated already, the historical right to bail has frequently allowed bail to be denied to those who pose a threat to the judicial processes (e.g. those accused of capital crimes). However, the “danger to the community” factor does not have this historical basis.

Second, denying bail only in cases where the defendant poses a threat to the judicial process recognizes that denial of bail is a necessary evil only to be used in situations where the very integrity of judicial process is threatened. As already argued, the only reason bail can be denied in such circumstances is because the judicial system cannot function if the judicial process is not protected. Justice Marshall affirmed that, “these exceptional deprivations of liberty are acceptable only as means necessary to protect the trial process.”115 This judicial process is the mechanism society uses so that innocent people do not have to be detained without conviction. It is the system for due process to be upheld. If this system is not protected, every citizen’s rights are harmed. On the other hand, denying bail to prevent danger to the community is not to protect the system. The judicial process will still function even if a defendant commits a crime while on pretrial release.

Third, unlike allowing judicial officers to deny bail to defendants who may be a danger to the community, only denying bail when the judicial process is threatened is actually a limitation on judicial and legislative authority. Denying bail based on “danger to the community” is a broad

115 Ibid.

standard. Additionally, this factor can also be significantly broadened by judges or Congress in the future. However, restricting judicial officers to one factor (i.e. what is reasonable to protect the integrity of the judicial process) both limits bail conditions judges can set and gives judges only a few situations where denying bail is acceptable.

Fourth, half of the practical problems that arise when using the “danger to community” factor do not arise when denying bail to protect the judicial process. If a judge is legally unable to hold a defendant on bail to protect the community, judges cannot be blamed if the released defendant ends up committing a crime. The pressure is removed, so the perverse incentive for judges to deny bail to protect themselves is eliminated. On the other hand, judges are less likely to face a backlash from the community if a defendant they released on bail skips trial. Thus, judges are unlikely to have perverse incentives to hold a defendant on bail.

Objection: Punishment vs Regulation

Another important objection must be addressed. Is pretrial detention really punishment?

As shown above, in Carlson, the Court upheld pre-deportation detention without bail partially because “deportation is not a criminal proceeding and has never been held to be punishment.”116

In Salerno, the Court’s primary rationale for upholding the Bail Reform Act of 1984 was that

“pretrial detention under the Bail Reform Act is regulatory, not penal.”117 In another Supreme

Court case, Bell v. Wolfish (1979), the Court upheld a federal prison’s treatment of defendants held in pretrial detention. The Court allowed the keeping of two inmates in a cell intended for one person, taking inmates out of their cell to conduct searches of the cell, restricting what can

116 342 U.S. 524, 535.

117 481 U.S. 739, 746.

be shipped to inmates from outside the prison, and searching inmate’s body cavities after the inmates had any visitors.118 This treatment was permitted because it was done pursuant to “the effective management of the detention facility once the individual is confined.”119 While the

Court ruled that “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law,”120 the Court reasoned that maintenance of jail security and safety “is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.”121 In all three of these cases, the Court permitted pretrial detention and/or restrictions by holding that they were either regulative, civil, or administrative as opposed to punitive. The Court forbid pretrial punishment but upheld pretrial treatment that fell outside the category of “punishment”. Thus, the potential objection runs: “Aren’t all pretrial detention/conditions regulative? Shouldn’t they all be upheld since they aren’t punitive?”

There are factors the Court established to determine whether a governmental action is punishment. These factors are, “Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a

118Bell v. Wolfish. 1979, 441 U.S. 520.

119Ibid, 540.

120Ibid, 536.

121Ibid, 540.

crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose.”122

Applying these factors, as well as the Court’s previous rulings, demonstrates that bail conditions and pretrial detention to protect the integrity of the judicial process is regulative.

However, pretrial detention and bail conditions imposed to protect the safety of the community are punitive.

Denying bail or imposing bail conditions to protect the judicial process is purely regulative. It is explicitly correlated to ensuring the function and reliability of the judicial process. This is similar in function and scope to the pretrial restrictions upheld by the Court in

Bell. In Bell, the actions of the jail officials were upheld because they were protecting "legitimate interests that stem from its need to manage the facility in which the individual is detained."123

Pretrial detention to protect the integrity of the judicial process functions much the same way.

The Government has legitimate interests that stem from its need to protect the judicial process by which the individual is tried.

The Government’s “legitimate operational concerns,” which allow it to implement measures to protect jail security, parallel the Government's legitimate concern in making sure the trial process is operational. Thus, pretrial detention is regulative. However, once the Government can detain based upon potential danger to the community, then it has crossed the line from regulative detainment to punitive detainment.

First, detention to protect the community is unrelated to the judicial process. Protecting the judicial process is narrow in both time and scope. It is narrow in time because it only applies

122Kennedy v. Mendoza-Martinez. 1963, 372 U.S. 144, 168-169.

123441 U.S. 520, 540.

during the trial period. It is narrow in scope because it only applies to crimes that affect the judicial process. On the other hand, protecting the community is broad in both time and scope.

Threats to the community can come from any type of person, not just the accused. In fact, “if detention to prevent the commission of crimes is desirable, there seems little logical reason for confining it to persons charged but not yet convicted.”124 Additionally, crimes that threaten the community can occur at any point, because, “the risk of repeated crime, unlike the risk of flight or of interference with witnesses, is not inherently limited to the pretrial period.”125 Thus, holding a defendant in pretrial detention to protect the community does not function to, nor is it intended to, protect the judicial process.

Contrast this with the regulative restrictions permitted in Bell. In Bell, the actions upheld were clearly related to operational and administrative concerns. The actions weren’t punishment because the officials were simply trying to keep their detention facility functional and secure. On the other hand, pretrial detention to keep the community safe is neither operational nor administrative. It does not function to protect the judicial process. Rather, it is pursuing an entirely different goal: to protect the community from criminals and their crimes.

Second, detention to protect the community is seeking to achieve a goal reserved for the criminal justice process. As already mentioned, “We have made the basic decision that crimes should normally be deterred by the threat of subsequent punishment, not by prior confinement.”126 Prevention of future crimes is meant to be accomplished by threat of punishment, not by jailing those who are probable threats. Furthermore, this punishment is only

124“Preventive Detention Before Trial”. 1503.

125Ibid.

126 Ibid, 1502.

to be meted out after the criminals have been convicted in and by the judicial process. However, when pretrial detention is permitted to protect the community from crime, it is a shortcut attempting to bypass this essential principle of the judicial system. As the Harvard Law Review puts it, “the fact that detention may be required to ensure the orderly functioning of the usual criminal process does not justify the use of detention as a substitute for that process.”127 This type of pretrial detention is punitive because it is functionally fulfilling one of the roles that trial, conviction, and punishment are supposed to fulfill: deterrence and prevention of future crimes.

In fact, pretrial detention due to a defendant’s perceived danger to community matches one of the factors mentioned in Kennedy: whether its operation will promote the traditional aims of punishment-retribution and deterrence. Pretrial detention to protect the community operates to deter future crime by detaining potentially dangerous defendants. It is promoting a traditional aim of punishment-retribution and deterrence: keeping the community safe by confining criminals. Thus, this type of pretrial detention is punitive in its nature and function.

Therefore, pretrial detention to protect the judicial process serves a regulative function. It keeps the judicial process safe and operational. However, pretrial detention to protect the community from danger is punitive. It is unrelated to the function and operation of the judicial process, and it seeks to achieve goals reserved for the criminal justice system.

Objection: What About an Abuser?

Another objection could run in this way: “There is a man who has abused his wife for years and gets caught. He has no plans to tamper with the jury, judge, or witnesses. He isn’t a flight risk either. Should this man be set free, simply because we cannot know that he will beat

127“Preventive Detention Before Trial”. 1503.

his wife again?” This is a crucial objection to address. Letting a potential murderer, rapist, or abuser out of jail before his trial feels wrong.

It should be noted that the domestic abuser arguably falls into the category of “tampering with witnesses.” His wife is a witness to the crime of abuse (since she is the victim). If a court reasonably believes that the abuser will go back to beating his wife, then the abuser is threatening and harming a witness. In fact, almost every victim of a crime is a witness for that crime. Rather than allowing criminals to return to harming their previous victims, the category of protecting witnesses allows a Court to safeguard the integrity of the judicial process by protecting the witnesses involved. However, this first answer does not address the possibility of future, new victims. What about a murderer who is set free and then kills another person while awaiting their trial?

First, a murder, along with rape, kidnapping, child sexual abuse, etc…, are commonly capital offenses, so bail can be denied. As previously argued, those accused of capital offenses are inherently flight risks.

Second, the distinction between aberrational and systemic injustice must be remembered.128 Any murder is a horrific injustice, but this is an injustice that incurs despite the criminal justice system, not because of it. Murder is illegal, and police should obviously keep watch on someone who is suspected or accused of murder. There is a system of law enforcement in the criminal justice system designed to protect citizens from criminals. However, any system will have aberrational injustices, this is an unfortunate reality. The current bail system though, as

128 See supra at 20.

argued earlier, is one of systemic injustice.129 Even if the new system includes some aberrational injustice, it is still much better than a system that has systemic injustice.

Thus, in most circumstances, the situation that this objection uses will not happen. Any accused who endanger witnesses can be denied bail for being a threat to the integrity of the judicial process. Those accused of the most dangerous crimes are likely accused of capital offenses and so can be denied bail since they are flight risks and thus a threat to the judicial process. In the cases that remain, if the accused does commit a crime, it is an unfortunate instance of aberrational injustice. However, occasional instances of aberrational justice are preferable to a system of systemic injustice.

Dealing with Salerno The most daunting challenge to finding a Right to Bail in the 8th Amendment is one supreme court case: United States v. Salerno.130 As already mentioned, the Court ruled that,

“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.”131 In other words, the Court expressly rejected finding any right to bail in the 8th Amendment.

There are many problems with this decision. First, this decision opens the door to all the problems mentioned above. As already demonstrated, allowing bail conditions to be set or denied in order to protect the community is both problematic and undesirable. Second, as shown

129 See supra at 21.

130 For a discussion of the rationale in Salerno, see supra at 7.

131 481 U.S. 739, 753.

from the historical analysis of the right to bail, this decision misunderstands how bail has operated for centuries in both American and English law. Third, by not finding a right to bail,

Salerno guts the constitutional clauses that could and should provide defendants protection against wrongful pretrial detention and bail conditions. Thus, Salerno opens the door for all the problems in the current bail system.

Now the objections to this decision are all well and good, but the Supreme Court has decided. The Supreme Court adheres to a fundamental doctrine of common law known as stare decisis. This term simply means “to abide by, or adhere to, decided cases.”132 Practically, this means that, “To reverse course, we require as well what we have termed a ‘special justification’—over and above the belief ‘that the precedent was wrongly decided’.”133 Even if a

Supreme Court decision is wrongly decided, the court does not overturn itself lightly. This is based on the idea that “it is usually ‘more important that the applicable rule of law be settled than that it be settled right’.”134 However, this does not mean that stare decisis is an insurmountable obstacle. Numerous Supreme Court decisions reiterate the fact that “[s]tare decisis is not an inexorable command.”135 The Court can, and has, overturned its previous decisions. As Chief

Justice Rehnquist notes in his dissent, in the 1992 decision Planned Parenthood v. Casey

132 Planned Parenthood of Southeastern Pennsylvania v. Casey. 1992, 505 U.S. 833, 954.

133 Kimble v. Marvel Entertainment, LLC. 2015, 135 S.Ct. 2401, 2409.

134 Ibid.

135 Payne v. Tennessee. 1991. 501 U.S. 808, 828.

(1992)136, “Over the past 21 years...the Court has overruled in whole or in part 34 of its previous constitutional decisions.”137

It is at this point that an ideological divide in the Supreme Court appears.138

“Conservative” justices on the Supreme Court are usually more willing to overturn precedent than “liberal” justices. This is clearly demonstrated in a case like Franchise Tax Board of

California v. Hyatt, 139 S.Ct. 1485 (2019), where the five conservative members of the Supreme

Court voted to overturn Nevada v. Hall, 440 U.S. 410 (1979), over the dissent of the four liberal justices.139

This ideological divide makes the task of overturning Salerno particularly thorny. As already demonstrated, the problems with the current bail system are numerous and alarming.

This is an issue that should transcend ideological divides. Rather than tacking to a partisan or ideological argument, the best scenario would be convincing all the justices that overturning

Salerno is the correct decision. Put simply, regardless of where a justice falls on the ideological spectrum, the arguments to overturn Salerno are valid and compelling. There is an argument for each stripe of justice that both appeals to their judicial philosophy and makes the case that

Salerno should be overturned.

136 In Casey, a plurality of the Court upheld the “core” of Roe v. Wade (1973, 410 U.S. 113). However, Casey changed the trimester framework established in Roe and replaced it with a viability analysis.

137 505 U.S. 833, 959.

138 While it can be argued this ideological divide is common knowledge, there is also academic support for this notion (see the Epstein paper cited later).

139 Franchise Tax Board of California v. Gilbert P. Hyatt. 2019, 139 S.Ct. 1485.

First, there are extreme conservatives like Justice Clarence Thomas, who is arguably the most conservative justice on the Supreme Court.140 His concurrence in Gamble v. United States

(2019)141 is particularly informative. Justice Thomas wrote this concurrence expressly “to address the proper role of the doctrine of stare decisis.”142 Fundamental to Justice Thomas’ understanding of stare decisis is his belief that the federal courts should only “interpret and apply written law to the facts of particular cases.”143 Justice Thomas believes that “words, including written laws, are capable of objective, ascertainable meaning.”144 Because of this, “judicial decisions may incorrectly interpret the law, and when they do, subsequent courts must confront the question when to depart from them.”145 Thus, Justice Thomas argues that “if the Court encounters a decision that is demonstrable erroneous...the court should correct the error, regardless of whether other factors support overruling the precedent.”146 Justices, Thomas argues, should be bound exclusively to uphold the constitution. As he puts it, “the Constitution outranks other sources of law” so “the Constitution does not mandate that judicial officers swear to uphold judicial precedents.”147 For that reason, Thomas asserts that the Constitution requires

140 Epstein, Lee, Andrew Martin, and Kevin Quinn. 2016. "President Elect Trump And His Possible Justices": 9. http://epstein.wustl.edu/research/PossibleTrumpJustices.pdf.

141 Gamble was a case where the Court upheld the separate sovereignty doctrine (i.e. that both a state and the federal government could charge and convict someone for the same action under separate statutes, and such prosecution would not violate double jeopardy.)

142 Gamble v. United States. 2019, 139 S.Ct. 1960, 1981.

143 Ibid, 1984.

144 Ibid.

145 Ibid.

146 Ibid.

147 Ibid.

the Court “to privilege its text over our own precedents when the two are in conflict.”148

Therefore, Thomas explains that his “view of stare decisis requires adherence to decisions made by the People - that is, to the original understanding of the relevant legal text - which may not align with decisions made by the Court.”149

To convince a conservative Justice like Justice Thomas that Salerno should be overturned is relatively straightforward. All that is needed is proof that the Salerno decision incorrectly interpreted the 8th Amendment. The flaws in Salerno have already been argued above. The essential flaw to demonstrate to a conservative of Thomas’ stripes is that the historical text and

“original understanding of the relevant legal text” were seriously misunderstood by the Court in

Salerno. Proof of this has already been cited and explained. Therefore, a conservative justice such as Justice Thomas can be convinced that Salerno is erroneous and should be overturned.

Second, there are conservative justices such as Justice Neil Gorsuch.150 His dissents in

Kisor v. Wilkie (2019)151 and Gamble v. United States demonstrate his views on stare decisis.

Justice Gorsuch argues that, “Stare decisis has many virtues, but when it comes to enforcing the

Constitution this Court must take (and always has taken) special care in the doctrine’s application.”152 Gorsuch cites Justice Brandeis, quoting, “in cases involving the Federal

Constitution, where correction through legislative action is practically impossible, this Court has

148 Ibid, 1985.

149 Ibid.

150 Epstein, 9.

151 In Kisor, the Court upheld the Auer deference doctrine (i.e. that courts must defer to an government agency’s interpretation of its own ambiguous regulations).

152 139 S.Ct. 1960, 2005.

often overruled its earlier decisions.”153 However, Gorsuch invokes considerations that the Court has traditionally used in evaluating its previous decisions. Such considerations include, “the quality of [the precedent’s] reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.”154 These are considerations that many other justices subscribe to.155 However, it is especially important to see how a conservative justice interprets and applies these considerations, especially the consideration regarding the precedent’s reasoning. When considering the quality of the precedent’s reasoning, Gorsuch looks to history as one of the main factors for evaluation.

For example, in Gamble, Gorsuch argues that the “dual sovereignty” doctrine is poorly reasoned by conducting an in-depth historical overview of the legislative and judicial history surrounding the doctrine.

Salerno was ostensibly about the Bail Reform Act of 1987, but in the decision, the Court held that the 8th Amendment does not include a right to bail. While the case did deal directly with a statute, it ultimately was determining what the Constitution says about the right to bail. Given that, in Gorsuch’s view, those types of decisions receive the least protection from stare decisis, the task of convincing a conservative justice like Gorsuch to overturn Salerno is less difficult. Thus, it is easier to argue that an erroneous decision regarding the constitution should be overturned. Additionally, there is a strong argument that, considering the historical factors previously mentioned, Salerno was incorrectly reasoned. Therefore, there are strong arguments

153 Ibid, 2006.

154 Kisor v. Wilkie. 2019, 139 S.Ct. 2400, 2445. Supreme Court of the United States.

155 See Justice O’Connor’s plurality decision joined by Justice Souter, Justice Kennedy, Justice Blackmun, and Justice Stevens in Planned Parenthood v. Casey (505 U.S. 833, 854-855). Also see Justice Breyer's dissent (Joined by Kagan, Ginsberg, and Sotomayor) in FTB v. Hyatt (139 S.Ct. 1485, 1506).

to give little weight to stare decisis regarding Salerno that could potentially convince a conservative justice like Justice Gorsuch.

Second, there are moderately conservative justices such as Justice Kennedy156 and Justice

O’Connor.157 Kennedy and O’Connor’s views on stare decisis are demonstrated in the plurality opinion in Planned Parenthood v. Casey. Kennedy and O’Connor in the plurality established

“that no judicial system could do society’s work if it eyed each issue afresh in every case that raised.”158 In light of this view, they asserted that considering a previous ruling “is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decisions with the ideal rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.”159 Such concerns include considerations similar to the considerations Justice Gorsuch brought up in Kisor. Specifically, they list a series of questions that test whether a previous decision should be overturned or upheld. These questions include,

“whether the rule has proven to be intolerable simply in defying practical workability...whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost repudiation...whether the related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine...or

156 While neither of these justices are on the Court anymore, there may be a moderate conservative justice with similar views who joins the Court in the future. Thus, it is helpful to consider their perspectives.

157 Keneally, Meghan. 2019. "Their Pay, Age, Political Leanings And More: 6 Supreme Court Questions Answered”. ABC News.

158 505 U.S. 833, 854.

159 Ibid.

whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.”160

Moderately conservative justices could potentially be convinced by an argument that the practical workability of the Salerno decision is unfeasible. In considering whether or not they should uphold the previous decision of Roe v. Wade, the justices noted that “the required determinations fall within judicial competence.”161 In another decision that Justice Kennedy signed on to, the Court upheld a prior decision as valid because “the decision is simplicity itself to apply.”162 There are several reasons why the system upheld in Salerno is not workable. First, as already demonstrated, it places judges in a position where their rulings may be influenced by perverse incentives. Judges are thus placed in a position where they have incentive to rule on the side of caution as opposed to the side of law. Second, as argued previously, there is no real way to verify that the decision to deny bail based upon threat to society was the correct decision. Due to this, judges are unable to learn or evaluate whether their decisions to deny bail because of threat to community were correct. Third, factors allowed under Salerno place judges in the position of making complex future predictions regarding potential criminal behavior. Judges are not meant to be seers staring into a crystal ball. Rather, they are to be impartial interpreters and applicants of criminal law. These reasons demonstrate that having judges deny or affirm bail based on the threat to community factor is not practically workable. Judges are placed in a position where external pressures and an inability to check their decisions or predict the future make their determinations unworkable. A moderately conservative justice may be convinced

160 Ibid, 854-855.

161 Ibid, 855.

162 135 S.Ct. 2401, 2411

that, despite the importance of stare decisis, the ruling of Salerno is unworkable and should be overruled.

Fourth, there are moderately liberal justices, such as Justice Kagan and Justice Breyer.163

Justice Kagan’s judicial philosophy is demonstrated in her majority decisions Kisor v. Wilkie and

Kimble v. Marvel (2015)164 (which Justice Breyer joined). Justice Breyer gives an example of his view in his dissent in FTB v. Hyatt (2019) (which Justice Kagan joined). Both justices demonstrate a reluctance to overturn precedent. Kagan reasons that “respecting stare decisis means sticking to some wrong decisions.”165 Breyer cites Justice Kagan, agreeing with her that,

“an argument that we got something wrong - even a good argument to that effect - cannot by itself justify scraping settled precedent.”166 This does not mean that precedent should never be overturned though. Both Justice Breyer and Justice Kagan agree that stare decisis, while “‘not an inexorable command’ is the ‘preferred course’.”167 Furthermore, the justices do not believe that all types of stare decisis are equally binding. Justice Kagan distinguishes between cases involving Constitutional interpretation and cases involving statutory interpretation. As Kagan explains, “in a constitutional case, only we can correct our error.”168 Kagan also acknowledges that “in a constitutional case,” stare decisis does not carry enhanced force.169

163 Keneally.

164 In Kimble, the Court upheld the Court’s previous ruling in Brulotte v. Thys Co. (1964, 379 U.S. 29). This affirmed that royalties for a patent could not extend beyond the life of the patent.

165 135 S.Ct. 2401, 2409

166 139 S.Ct. 1485, 1505.

167 135 S.Ct. 2401, 2409.

168 139 S.Ct. 2400, 2422.

169 135 S.Ct. 2401, 2409.

Both Kagan and Breyer list reasons that justify overruling precedent. Kagan cites arguing workability as “a traditional basis for overturning a case.”170 She also mentions that cases which are a “doctrinal dinosaur or legal last-man-standing” sometimes justify departing overturning a previous case.171 Referencing Casey, Breyer argues that it may be justified to overturn a case

“when it ‘def[ies] practical workability’ when ‘related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,’ or when ‘facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification’.”172

As demonstrated above, there is a legitimate argument that Salerno is unworkable. Thus, from that basis, moderately liberal justices may be convinced that the Salerno decision should be overturned. Additionally, since Salerno is a case regarding constitutional interpretation, the moderately liberal justices may have less reservations about entertaining arguments to overturn it.

Fifth, there are more liberal justices, such as Justice Ginsberg.173 In the Gamble case,

Justice Ginsberg argues for overturning precedent. Thus, looking at her dissent in that case is helpful to understand what could convince a liberal justice to overrule stare decisis. Ginsberg notes that, “Our adherence to precedent is weakest in cases ‘concerning procedural rules that implicate fundamental constitutional protections’.”174 Ginsburg also notes that, “Gamble’s case

170 139 S.Ct. 2400, 2423

171 135 S.Ct. 2401, 2411.

172 139 S.Ct. 1485, 1506.

173 "The Political Leanings Of The Supreme Court Justices”. 2019. Axios. https://www.axios.com/supreme-court- justices-ideology-52ed3cad-fcff-4467-a336-8bec2e6e36d4.html.

174 139 S.Ct. 1960, 1993.

‘do[es] not implicate the reliance interests of private parties’” since the only parties with “a reliance interest would be the interest Federal and State Governments have.”175 Thus, Ginsburg concludes that, “Overruling the separate-sovereigns doctrine would not affect large numbers of cases.” Another reason Ginsberg supported overturning stare decisis was because the case in question represented, in her view, “The sort of ‘legal last-man-standing for which we sometimes depart from stare decisis’.”176

A liberal justice such as Ginsberg could be persuaded to overturn Salerno. First, Salerno is a decision regarding fundamental constitutional protections: the Excessive Bail Clause in the

8th Amendment. Thus, a liberal justice like Ginsberg may be more willing to consider overturning it. Second, the Salerno does not create reliance interests. Private parties do not rely on Salerno; it is only the federal government that relies on Salerno to deny bail or set bail conditions. Additionally, while federal government prosecutors use and rely on the 1987 Bail

Reform Act, getting rid of the ability to deny bail based on threat to the community does not upend the entire federal criminal system. The bail system would not be eradicated, rather it would go back to functioning as it did before 1987. All overturning Salerno does is prevent judicial officers from setting bail conditions or denying bail for purposes other than protecting the judicial process. Bail proceedings would continue to function as they do already. Thus,

Ginsberg, and liberal justices like her may be convinced that overturning Salerno would not harm reliance interests. Third, Salerno is the only Supreme Court case that rules there is no right to bail. In fact, it seemingly cuts against the rationale in a previous Supreme Court case, Stack v.

175 Ibid, 1995.

176 Ibid, 1993.

Boyle, writing off the contrary ruling as “dictum.”177 Rather than being a “last-man-standing,” it is the only man standing.178 No other Supreme Court cases rely on Salerno. These reasons, combined with the other arguments given above for why Salerno was poorly decided, could convince a liberal justice like Ginsberg that Salerno’s holding should be overruled.

Salerno is a wrongly decided case. Its rationale is ahistorical, it creates several problems for judicial officers, it unjustly hurts potentially innocent defendants, and it stands alone as interpreting the 8th Amendment in this manner. Until this decision is overruled, a right to bail cannot be found in the 8th Amendment. Overturning Salerno does not need to be partisan or political. As shown above, justices from all ideological backgrounds could potentially be persuaded to overturn this flawed decision.

Beyond Salerno While Salerno should be overturned, this in itself would not be sufficient to solve the problem. The Supreme Court should find that there is a right to bail in the 8th Amendment. As the sections above have demonstrated, an accurate historical view of the 8th Amendment shows that it was intended to provide and protect a right to bail. It is only when the judicial process itself is threatened that either bail conditions or denying bail can be imposed. Overruling Salerno and correctly understanding the history surrounding the bail clause leads naturally to finding a

177 481 U.S. 739, 753.

178 What about Carlson? As already discussed, Carlson is a civil case, not a criminal one. The Supreme Court has not applied the 8th Amendment to civil cases between private parties (see Browning-Ferris Industries v. Kelco Disposal, Inc. 1989, 492 U.S. 257). Furthermore, the Supreme Court has only applied the 8th Amendment to civil forfeiture when the civil forfeiture is serving as a type of punishment (see Austin v. United States. 1993, 509 U.S. 602). In civil forfeiture cases, while they are civil in name, the 8th Amendment applies when they are punitive (and thus arguably criminal) in nature. Therefore, Carlson merely follows the precedent of the Supreme Court in not extending 8th Amendment protections to civil cases. For this reason, Carlson does not really impact the right to bail as argued for in this paper, and Salerno still stands alone as the only case denying a right to bail in criminal cases.

right to bail in the 8th Amendment. However, finding a right to bail in the 8th Amendment, while a good step, doesn’t fully bring the protections of the 8th Amendment to bear. The 8th

Amendment’s excessive bail clause should also be incorporated to the states.

The Bill of Rights (the 1st 10 amendments to the U.S. Constitution) didn’t originally apply to the states. Rather, they “only limited the Federal Government’s power.”179 This changed with the passing of the 14th Amendment. Section 1 of the 14th Amendment reads that, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”180 The key phrase is

“without due process of law.” The Supreme Court has, “on a case-by case basis, [begun] to make particular rights contained in the first eight amendments fully applicable against the states through the Due Process Clause.”181 The process by which this is done is known as “selective incorporation.” Under this process, the Supreme Court will “‘incorporate’ - that is make applicable against the states - a particular guarantee contained in the Bill of Rights.”182 A right

179 Woodruff, 263.

180 U.S. Constitution, amend. 14, sec. 1.

181 Calabresi, Steven, and Sarah Agudo. 2008. "Individual Rights Under State Constitutions When The Fourteenth Amendment Was Ratified In 1868: What Rights Are Deeply Rooted In American History And Tradition?". Texas Law Review 87 (1): 81. https://ssrn.com/abstract=1114940.

182 Ibid, 264.

will be incorporated if the Court finds that it “is fundamental to our scheme of ordered liberty or...whether [it] is ‘deeply rooted in this Nation’s history or tradition’.”183

The Excessive Bail Clause meets these criteria. First, the history of the bail clause shows that it is deeply rooted in the United States’ history and tradition. Second, when the 14th

Amendment was ratified in 1868, “all thirty-seven state constitutions...provided that excessive bail shall not be required.”184 Third, the Supreme Court already seems inclined to incorporate the excessive bail clause. Writing for the majority in McDonald v. Chicago, Justice Alito notes in footnote 12 that the Excessive Bail Clause was incorporated by Schlib v. Kuebel.185 This seems to indicate that the Supreme Court already views the Excessive Bail Clause as incorporated.

However, most legal scholars view this footnote as “dicta without the full force of law.”186

Regardless, this shows, that if it hasn’t already, the Supreme Court seems to be willing and open to incorporate the Excessive Bail Clause. Fourth, the Supreme Court has incorporated all the other, similar protections in the 8th Amendment. The protection against cruel and unusual punishment was incorporated in Robinson v. California,187 and the Excessive Fines Clause was incorporated by Timbs v. Indiana.188 Fifth, “the decisions of several lower federal courts...have held that the Clause does apply to the states,” and the Supreme Court has declined to review any of them.189 For example, the 8th Circuit Court in Mastrian v. Hedman (1964) ruled, “the

183 McDonald v. City of Chicago. 2010, 130 S. Ct. 3020, 3036.

184 Woodruff, 269.

185 130 S. Ct. 3020, 3034 n. 12.

186 Woodruff, 268.

187 Robinson v. California. 1962, 370 U.S. 660.

188 Timbs v. Indiana. 2019, 139 S. Ct. 682.

189 Woodruff, 269.

excessive-bail prohibition of the Eighth Amendment was applicable to the states through the

Fourteenth Amendment.”190 The Supreme Court declined to review this case, with no explanation.191 Due to all these reasons, the Excessive Bail Clause should be incorporated.

Incorporation is also preferable because of the nature of bail. Every state has a court system. As mentioned earlier, the bulk of people held in pretrial detention are being held on the state level. Unless the Excessive Bail Clause is incorporated to the states, the right to bail will only apply in the federal system. Thus, all the problems identified within the bail system will continue to run rampant on a state level.

Overruling Salerno, finding a right to bail in the Excessive Bail Clause, and incorporating this clause to the states provides a mechanism through which the problems of the bail system can be remedied.

The Problem Solved How does this solve the problems within the bail system? As already mentioned, a right to bail means bail must be offered. More specifically, bail conditions (just as the 1987 Bail

Reform Act already says) must be reasonably tailored to protect the judicial process. This means that bail conditions are held to the standard of reasonableness and that they must solely be placed to protect the integrity of the judicial process.

Finding a right to bail in the Excessive Bail Clause of the 8th Amendment would compel federal judicial officers to only consider what is reasonable to secure an appearance at trial when evaluating bail. Likewise, incorporating this right to bail would constrain all state courts, when

190 Mastrian v. Hedman. 1964, 326 F.2d 708, 711. United States Court of Appeals Eighth Circuit.

191 Mastrian v. Hedman. 1964, 376 U.S. 965.

evaluating bail pretrial, to only consider what is reasonable to secure an appearance at trial. All criminal courts in all fifty states (as well as federal courts) would now have a standard which protects an unconvicted defendant’s rights: whether the denial/conditions are reasonably tailored.

Any bail denial or bail conditions that are not reasonably tailored to protect the judicial process would thus be unconstitutional.

This standard would enable defendants to challenge and to appeal their bail decision based on whether it is reasonable to protect the judicial process. Now defendants have a clear legal and constitutional avenue by which they can challenge unreasonable or unjust bail conditions. Does a state bail system disproportionately imprison indigent defendants? Are a judicial officer’s bail conditions far more severe than is warranted? Is a defendant, who couldn’t flee and hasn’t threatened anyone, held without bail? These defendants would all have a constitutional protection they can appeal to when faced with such injustices.

This solution doesn’t immediately solve all the problems in the pretrial detention system.

However, what it does do is provide both constitutional protections and a means to challenge practices that cause these problems. It both lays the groundwork and creates a framework that can be utilized to protect defendant’s rights and correct issues in the system.

Conclusion The problems within the pretrial detention system are complex and many. It was never supposed to be this way. By misunderstanding history, the Court undermined the key

Constitutional protections that were meant to protect the due process and the rights of the accused. By reversing their erroneous decision, finding a right to bail in the Excessive Bail

Clause, and incorporating this right to the states, key protections are reinstated for defendants.

It is no doubt that accomplishing such a feat is difficult. However, it is worth the challenge. The rights of defendants and the innocent must be protected. Constitutional protections ought to be upheld and defended. For this reason, recovering the Right to Bail in the

8th Amendment is a battle worth fighting.

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