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EDITOR’S NOTE: The Kentucky Bar Association would like to acknowledge that the following article was submitted for the 2016 Student Writing Competition and therefore was not written with the Editorial Guidelines of the Bench & Bar in mind. The views expressed are those of the author and should not be construed as those of the Kentucky Bar Association. THE RIGHT TO A PAUPER’S SHOULD BAIL BE SET WITH REGARD TO A DEFENDANT’S ABILITY TO PAY? BY: ASHLEA HELLMANN

“The important ends of Civil Society, and the personal Securities of Life and Liberty, these remain the same in every Member of the Society,” Franklin continued. He concluded: “The poorest continues to have an equal Claim to them with the most opulent, whatever Difference Time, Chance or Industry may occasion in their Circumstances.”1

he right to life, liberty, and the pursuit of happiness, equally A. THE FOUNDING FATHERS AND THE afforded to all men, regardless of their wealth. This was PRESUMPTION OF BAIL Tsomething that Benjamin Franklin and many of the other The noble idea of a “presumptive right to bail for all” in America founders envisioned during the establishment of the nation. The can be traced back to the country’s origins. The drafters of the founders even deemed it necessary to require the justices of the Constitution drew inspiration from many historical documents. United States Supreme Court to swear to “administer justice When it came to discussing the right to retaining one’s freedom without respect to persons, and do equal right to the poor and to until proven guilty, one document in particular, Magna Carta of 2 the rich.” Later, many states upheld this idea by including in their 1215, appears to have provided substantial inspiration. The English constitutions’ provisions that embodied the idea of “equal justice document alluded to the substantive right to pretrial bail, declaring: 3 for all.” Over the course of history, legal minds have found it “No freeman shall be taken, or imprisoned, or be disseised of his necessary to protect the lofty notion of justice, ensuring that it may Freehold, or Liberties, or Free Custom ... nor will we not pass upon be afforded to all. However, one element of the system, pre- him, nor condemn him, but by lawful Judgment of his Peers, or by bail, has been slowly evolving over the course of American history, the Law of the Land.”4 Similar language appeared in the text of and in its present form today, poses a substantial obstacle for the the Fifth Amendment to the : “No person shall…be poorer participants. As such, pre-trial bail also creates a substantial deprived of life, liberty, or property, without due process of law…”5 obstacle for these defendants in their attempts to pursue idea of equal justice for all, irrespective of their wealth. The framers of the Constitution were not the only ones to consider this idea when drafting the documents that would guide our justice Part I of this paper will examine the history of the American bail system. The notion that liberty should be preserved until guilt was system and how it developed into one that is prejudiced against proven was also recognized by Congress when passing the Judiciary those with less income. Part II will examine exactly why the inabil- Act of 1789, which established the rules for the federal courts.6 ity to be released on pre-trial bail is so detrimental to defendants’ The drafters of the Act included Section 33, which laid the foun- pursuit of justice. Part III argues that the principles upon which dation in federal courts for the idea that the opportunity to have bail was founded no longer exist, and how such a failure deprives a bail set should be offered to all defendants as a matter of right: poorer defendants of an equal opportunity to pursue justice. Part IV offers solutions to correct this problem and improve the current “…upon all arrests in criminal cases, bail shall be admitted, bail processes. except where the punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit I. A HISTORY OF THE “PRESUMPTIVE RIGHT TO court, or by a justice of the supreme court, or a judge of a BAIL FOR ALL” district court, who shall exercise their discretion therein, Before discussing the current state of the pre-trial bail system, it regarding the nature and circumstances of the offence, is necessary to first determine how the system reached its present and of the , and the usages of law.”7 state that is of such concern. Therefore, this section will first seek to briefly examine the origins and development of the bail system This presumption was also important on the state level. By 1868, in early America, and how the principles alluded to by Justice Black 29 out of the 37 states had also included this “Consensus Right to were developed. The section then discusses, how and why the sys- Bail” clause in their state constitutions.8 Like their federal coun- tem has evolved from its original ideals into the system that exists. terparts, persons accused crimes (other than a capital offense) in these states were guaranteed the presumption of the right to be

1 | SEPTEMBER/OCTOBER 2016 released on pretrial bail, as long as they could put up “sufficient” of the defendant to the community, causing another staggering surety as set by the courts.9 increase in the number of poor defendants being detained.18 In spite of its departure from its constitutional origins, the 1970 Act This presumptive right to bail remained intact for nearly 200 years, was upheld by the Supreme Court in U.S. v. Edwards.19 and the concerns that bail could be used to disadvantage some did not go unnoticed. In 1956, when the U.S. Supreme Court handed Just over a decade later, the 1984 Bail Reform Act dealt another down the opinion in Griffin v. Illinois, Justice noted crushing blow to the presumptive right to bail.20 In an effort to that, while “providing equal justice for poor and rich, weak and promote greater crime control, the provisions of the Act now al- powerful alike is an age-old problem,” the American people have lowed judges to balance the Constitutional rights of the accused “never ceased to hope and strive to move closer to that goal.”10 against the interests of the community.21 In the 1987 case of U.S. Justice Black demonstrated that the constitutional guarantees of v. Salerno, the constitutionality of the Act was upheld, despite equal protection and due process included an equal right to pursue language in the opinion stating that, “[i]n our society liberty is the justice, and accordingly, that the Founders had sought to take steps norm, and detention prior to trial or without trial is the carefully toward a “fairer and more nearly equal application of criminal jus- limited exception.”22 In his opinion, Chief Justice Rehnquist held tice.”11 His examination of American legal history led Justice Black that the Eighth Amendment was not violated by denial of bail to conclude that, in criminal , a state can “no more discriminate in pretrial detention circumstances when made solely on grounds on account of poverty than on account of religion, race, or color.”12 that a defendant was dangerous to the community, as the Eighth Justice Black’s conclusions appear to have been largely ignored in Amendment did not grant an absolute right to bail.23 As a result, subsequent decades, as the right for all defendants, regardless of defendants could be detained without bail when there was a belief wealth, to seek justice began to diminish under harsh bail reforms. that he or she might be a danger to the community.

B. WHEN “JUSTICE FOR ALL” GAVE WAY As federal bail laws began to change, state judiciaries began to follow The era from the 1960s to the 1980s ushered in a time of mass this model as well, leading to an increase in pre-trial detention in reform in the area of pretrial release. Defendants during this era jurisdictions across the country.24 After the dust of legislative and witnessed the elimination of the federal presumption of the right constitutional reforms settled, the presumptive right to bail had to bail in all but capital cases, as well as the elimination of that not only been struck from federal law, but had also been begun right in nearly half of the states that had previously guaranteed it.13 to be rescinded by roughly half of the states as well.25 Only 24 The resulting system was one that favored the pretrial detention state constitutions still provide the guarantee of a presumptive of an increasing number of defendants. right to bail.26

Although it did not strip away the presumptive right to bail, 18 C. THE FAILURES OF THE CURRENT U.S.C. §3146-3151, better known as “The Federal Bail Reform SYSTEM OF BAIL Act of 1966,” was, the first law to change the structure of bail As Justice Black suggested so many decades ago, a historical that was established in the Judiciary Act of 1789.14 While the analysis clearly indicates that Founders intended to insure that the 1966 Act provided the opportunity for defendants to be granted presumption of the right to pretrial bail should exist for all people non-financial release on a promise to return for trial, a practice in order to ensure that all defendants receive due process. Such widely known as release on personal recognizance, the 1966 Act a high level of protection therefore leads to only one conclusion: also made it more difficult for defendants to secure such a release as the rights to both equal protection and due process form the by introducing another new clause. This clause stated that if the “central aim of our entire judicial system,” it is clear that, “all people government could demonstrate that the defendant was likely to charged with crime must, so far as the law is concerned, ‘stand on flee the jurisdiction of the Court to avoid prosecution, a monetary an equality before the bar of justice in every American court.’”27 bail or other additional conditions could be imposed.15 The result Under this interpretation of the law, a presumptive right to bail of this provision was often the imposition of a high monetary bail, exists for even poor defendants, though the presumption may still which judges believed would encourage appearance at trial. Ulti- be set aside under certain circumstances. While this system appears, mately, and despite the goal of creating a system that uniformly on its face, to be fair to lower-income defendants, further research released of defendants who were not flight risks, commentators has shown that a problem arises long before a judge ever has a criticized the 1966 Act for encouraging the disproportionate use chance to review the facts such a presumption. That is because, for of high bail to detain poor defendants.16 much of the country, the desire for efficiency has created a system that fails to consider the individual at all. In the 1970s, it became even clearer that the political climate began to favor the detention of poorer defendants. In passing the “The present money-based bail system’s most ‘glaring weakness is District of Columbia Crime Act of 1970, Congress sought to allow that it discriminates against poor defendants, thus running directly defendants to be detained for up to 60 days, without bail, if the counter to the law’s avowed purpose of treating all defendants court found that the defendant might be “dangerous.”17 Thus, and equally.’”28 The most currently used system of “bail schedules,” despite the long-standing history of bail only being used to secure usually implemented through legislation, authorizes law enforce- an appearance, judges began to take into account the potential threat ment officials to release arrestees on bail without the involvement

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of a judicial officer. These schemes seek to mainstream pretrial A. LOSS OF LIBERTY AND THE COLLATERAL release by providing standardized bail amounts, typically tied to CONSEQUENCES 29 the highest offense charged. The alleged benefit of this process Most obviously, being detained while awaiting trial prevents the is that arrestees should be able to obtain prompt release. However, accused from living his or her life. This includes not only the ben- these amounts are usually set based on the charges a defendant efits of unrestricted free movement and contact with friends and is arrested on, not the charges a prosecutor has agreed to pursue. family, but also includes things such as going to work, attending These systems also ignore any consideration of a defendant’s school, or receiving any physical or mental therapy to which they ability to pay, and because most judges are reluctant to reduce may be accustomed.36 Such losses can have long-term effects on these amounts unless circumstances have changed significantly, the defendant and his or her family. Those who are held for sub- the schedules tend to result in the imposition of unattainable bail stantial periods of time before their trial may lose their job or their amounts, causing poorer defendants to remain in jail longer than housing due to absence. The loss of a job could also cause the health 30 they might if they had received individualized consideration. So insurance for the defendant or their families to be affected. The while a bail schedule amount of $1,000 is unlikely to mean that loss of housing could force the children of a detained defendant much for someone with a bank account, a $1000 bail for a poor to have to not only relocate, but possibly change schools, friends, defendant might as well be $1,000,000, because either way, the and vital social networks.37 defendant is not going to be able to afford it. B. INCREASED LIKELIHOOD OF FEELING THE II. THE COST OF A SYSTEM THAT ESSENTIALLY PRESSURE TO ACCEPT A GUILTY PLEA DENIES BAIL TO THE POOREST DEFENDANTS It is possible that denial of pretrial liberty provides a psychological The people who remain in jail before trial may be in jail for a variety inducement to plead guilty that would not exist if the defendant of crimes, but statistics have shown that their backgrounds have were at liberty pending trial.38 Defendants awaiting trial in jail one striking thing in common: the monetary price of freedom is are more likely to accept a plea bargains and admit guilt to avoid beyond their means. Simply by nature of their financial position, spending more time incarcerated.39 “There is nothing as powerful most “indigent” defendants are the most likely to be unable to post as the desire to go home,” says Scott Hechinger, a public defender bail, even when the amount set is exceptionally low. For example, with the Brooklyn Defender Services. In 2013, his firm found in 2010, 40 percent of Brooklyn, New Yorks’ criminal defendants that clients who were held in jail without access to bail money who had bail set at $500 or less were unable to pay this money and pled guilty 92 percent of the time, versus just 40 percent for those 31 secure pretrial release. In New York City in 2013, 54 percent of who awaited trial at home.40 Another study estimated that up to jail inmates were held until trial because they couldn’t afford the 50 percent of innocent defendants even choose to plead guilty in bail that was set for them, even when that amount was $2,500 order to avoid potentially receiving a much lengthier .41 or less. About three-quarters of these people are being held on charges of non-violent misdemeanors such as traffic violations, or C. EFFECT OF PRE-TRIAL DETENTION ON drug or public order offenses like turnstile jumping or bar fights.32 ABILITY TO BUILD A DEFENSE This disparity should cause alarm, since the ability to be released Freeing the defendant under bond is important because he or she during the pretrial phase is critical for defendants. Pretrial de- may be their attorney’s greatest discovery tool.42 Lawyers usually tention plays a significant role in the American criminal justice spend less time with their detained defendants than with those system. Since 2005, approximately 60 percent of the country’s released on bail.43 This is likely because defendants on the streets incarcerated population is comprised of individuals waiting for have the ability to assist the attorney in seeking out witnesses in 33 trial. That means that, on any given day, the nation’s 3,000-plus their favor and examining the evidence against them. Unlike their jails detain about 731,000 inmates who have yet to be convicted. detained counterparts who hold little bargaining power, defendants This number is approximately equivalent to the population of who are able to secure the funds needed for pretrial release have 34 San Francisco. In addition, as much as $9 billion was spent in no reason to quickly accept a plea that will involve the prospect 35 2011 on pretrial detention in the United States. These statistics of future jail time. Rather, they will likely fight the case and take offer a window into how many low-income people are currently part in the creation of a strategy that gives the defendant a better affected by the current bail system. Using the statistics above, on chance of being acquitted. any given day approximately 394,740 people are being held in jails because that they cannot afford a bail of $2,500 or less. This D. HIGHER LIKELIHOOD OF BEING figure is alarming from more than just a statistical standpoint. The FOUND GUILTY, GETTING JAIL TIME, denial of bail is personal. Not only does being detained deprive a AND LENGTHIER SENTENCES person of one’s freedom, but being detained before one’s trial also Shackles and orange jump suits, it seems, affect the perception deprives the defendant of the ability to fully participate in one of guilt of the incarcerated defendant.44 Research shows that of the most crucial stages of a criminal case. The inability to post defendants who are detained pending trial have increased odds one’s bail has devastating consequences that extend further than of , a higher rate of custodial sentences, and lengthier legal scholars probably ever predicted that it would. The following periods of incarceration. This remains true even when other factors sections discuss the variety of ways in which a defendant may be are controlled for including: current charge, prior criminal history, affected by his inability to afford his even nominal pretrial bail. family ties, and type of counsel.45 Statistics from the New York City

3 | SEPTEMBER/OCTOBER 2016 Criminal Justice Agency found that non-felony pretrial detainees an equal right to seek justice by being offered affordable pretrial had a 92 percent conviction rate, whereas non-felony defendants release? A right that would allow them an equal opportunity to who were released pretrial only had a 50 percent conviction rate.46 prepare their defense? The vulnerability of indigent defendants Another study in 2013 from the Laura and John Arnold Foundation during the pretrial portion of the criminal justice system is hardly found that defendants who were detained for their entire pre-trial a new phenomenon. When Alexis de Tocqueville visited America period, rather than being released on bail, were four times more in the mid-nineteenth century, he noticed that the system of bail likely to receive a sentence that included additional prison time.47 was disproportionately detrimental to the poor and inherently Once convicted, those held without pretrial release also are more favors the aristocratic.52 Despite perceived “improvements”, it re- likely to receive sentences that are significantly longer. There is an mains evident that the system is hostile to the poor, and favorable extraordinary correlation between pretrial status and the severity of only to the rich, in that it provides wealthy individuals with the the sentence after conviction. The defendant who is jailed during opportunity to avoid pretrial detention, while making it more likely the pretrial period is two or three times more likely to receive a that indigent defendants will remain incarcerated before resolution prison sentence.48 of his or her case.53 If we are to adhere to the principles that the Founding Fathers made implicit in our Constitution, the equal III. WHY SUCH A DENIAL IS NOT INLINE WITH ability to pursue justice must be protected for all. CONSTITUTIONAL PRINCIPLES Monetary pretrial bail amounts originally were NOT meant to IV. THE SOLUTION: A SYSTEM THAT PROMOTES serve as a punishment for the acts of a defendant for which he or EQUAL OPPORTUNITY TO SEEK JUSTICE, she has not yet been convicted, nor was its purpose to protect our REGARDLESS OF WEALTH vulnerable society from the potential future criminal conduct of The fights to right injustices can take place on many different the person being detained The Founding Fathers intended that battlefields. A victory in each fight will play a crucial role in the bail would act as a procedure for setting conditions to insure that victory of the overarching war. The fight for the rights of the poor the defendant will appear for his trial. However, many judges still to equitable pretrial bail is no different, and it must be attacked fail to consider what amount for a particular defendant will assure from different angles. As this movement has gained momentum in his appearance at trial. As such, many judges are still setting bail recent years, it has become clear that challenges from both inside amounts far beyond what poorer defendants can afford. and outside the system will be crucial to obtaining the opportunity for equal justice for the poor. In 1951, the Supreme Court in Stack v. Boyle, recognized that, “[t]he traditional right to freedom before conviction permits the A. THE SUPPORTING OF CHARITABLE BAIL unhampered preparation of defense, and serves to prevent the FUNDS infliction of punishment prior to conviction. Unless this right According to the Criminal Justice Agency data, in 2012 in New to bail before trial is preserved, the , York City, almost 24,000 of arrests made were for non-felony cases secured only after centuries of struggle, would lose its meaning.”49 in which a monetary bail has been set. Additionally, in 92 percent of The Court also found that, “[b]ail set at a figure higher than an these cases, bail was set at under $2,500. However, only 37 percent amount reasonably calculated to [ensure the accused’s presence of these defendants were able to post bail at their arraignment.54 In in court] is ‘excessive’ under the Eighth Amendment.” However, his February, 2014 State of the Judiciary address, New York State the Court ultimately concluded that bail, “is not excessive merely Chief Judge Jonathan Lippman expressed his discontent with New because the defendant is unable to pay it.”50 York’s system and his wish to overhaul the bail system, in order to “guard against those unfair and unacceptable instances in which Although the Supreme Court has rejected the claim that lofty indigent defendants are incarcerated merely because they cannot pretrial bail amounts are excessive because a defendant could not meet a minimum bail amount, often as low as $500 or less.”55 pay under the Eighth Amendment, Justice Black’s opinion just While such an overhaul has yet to occur, legislation passed just a few years after the Boyle decision offers a remaining argument: two years earlier gave many groups hope that they could change that the proper analysis is not that the poor should be protected the system. Thus, New York City and its surrounding burrows from bail that is excessive to them, but that the poor have a right appear to have taken the lead in establishing what are being called to a bail that is equally attainable to them. This analysis has never “Charitable Bail Funds,” a method of resolving bail issues for poor been squarely addressed by the Supreme Court. In 1960 in Bandy and indigent defendants. v. United States, Justice Douglas came close when he hinted that Justice Black’s opinion in Griffin v. Illinois, which found that an The Bronx Freedom Fund was the first licensed charitable bail indigent defendant was denied equal protection if he is denied an fund in New York, and was quickly followed by the Brooklyn appeal, solely because of his indigence, led to the conclusion that Community Bail Fund.56 The groups work with low-income de- it must also be unconstitutional for “an indigent [to] be denied fendants who are charged with misdemeanors and have had their freedom, where a wealthy man would not, because he does not bail set at an amount of $2,000 or less. The rules are quite simple. happen to have enough property to pledge for his freedom.”51 A brief interview with the prospective defendant is held before Based on this theory, the question is: does the right to “stand on an the preliminary hearing, where the probability that the defendant equality before the bar of justice” mean that all persons should have will appear for trial is determined.57 Information obtained in order

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to make this determination is based on information such as: prior information obtained in an interview, as well as law enforcement record, residence patterns, current and recent employment and records obtained through investigative methods, to quantitatively references, and family ties in the jurisdiction, all of which are ver- evaluate all defendants and provide a recommendation for release.67 ified by telephone or from available official records.58 A defendant This 12-question assessment includes all vital information about who qualifies will then have their bail paid by the fund, and they the defendant, including: residency history, work status, current will be released until his or her case is resolved. The defendant is charge, legal status, any substance abuse history, any prior misde- also referred to community-based organizations that can provide meanor or felony , any prior violent crime convictions, additional social services.59 If the defendant proceeds to make all any prior failures to appear, mental health history, and any prior of his or her court dates, the posted money will be returned to the escape convictions.68 Each element is then given a different point fund.60 In the Bronx Freedom Fund’s two years of existence, the value, and the defendant’s overall point total determines whether average bail the fund has posted is $766, and 97 percent of their he represents a low, moderate, or high risk of flight and/or danger, 200-plus defendants have shown up for every scheduled court which dictates what the conditions of release should be.69 For cases appearance.61 where the defendant is determined to be at a low risk level of fail- ure to appear for court or being re-arrested during their pretrial This movement to develop procedures for the prompt pretrial re- phase, the new law requires that he be released on his recognizance lease of indigent defendants is now spreading rapidly through the (ROR) or with an unsecured bond (USB).70 If the defendant is a country with the endorsement of the Department of Justice and the moderate risk level, he can still to be released either ROR or USB, support of the Ford Foundation.62 This support could stem from but with additional court-imposed conditions of supervision that the fact that the government has recognized that pretrial release the court, such as the Monitored Conditional Release program has cost-saving benefits to both the government and taxpayers. or GPS tracking.71 In cases where the release decision does not The Independent Budget Office (IBO) estimates that the annual require ROR or a USB, the law sets the maximum bail amounts cost of incarcerating pretrial detainees who were unable to post for defendants who are charged only with misdemeanors at the bail is about $125 million.63 maximum fine, plus court costs, for the single highest-charged misdemeanor.72 B. FIGHTING THE SYSTEM: LEGISLATIVE REFORM IS THE ULTIMATE FIX FOR BAIL Statistics from the state show that judges are typically following SCHEDULING’S FLAWS the pretrial officer’s recommendations, which are based on these As legal history has confirmed, the primary purpose of setting factual, individualized determinations.73 Under this new practice, pretrial bail for an accused is to insure that of the person returns the state is now releasing seven out of 10 defendants pending trial, at a later time for trial. To achieve this purpose, the Supreme without requiring bail from them.74 The non-financial release rate Court in Bandy v. United States noted that the present bail system has increased from 50 percent to 66 percent.75 In 2011, 85 percent has assumed, “that the threat of forfeiture of one’s goods will be of low-risk defendants were released, 67 percent of moderate-risk an effective deterrent to the temptation to break the conditions defendants were released, and 51 percent of high-risk defendants of one’s release.64 Based on this principle, in 1963, the Court in obtained pretrial release.76 Data shows that 90 percent of released Pannell v. United States, found that, “an impecunious person who defendants make all future court appearances, and 92 percent do pledges a small amount of collateral constituting all or almost all not get re-arrested while on pretrial release.77 of his property is likely to have a stake at least as great as that of a wealthy person who pledges a large amount constituting a modest CONCLUSION part of his property.”65 Therefore, if persons of varying degrees Data from Kentucky indicate that this reform is not just theory. of wealth will find the motivation to appear for trial in varying When implemented, the system works to provide a sense of pretrial amounts of bail, it only seems logical that an effective system of justice and improve the image of the justice system, created in pretrial release would consider the individual when setting this part by the current bail system. The desire to achieve this goal was amount. Continuing to rely on the efforts of interested persons noted by researchers Dr. Marie VanNostrand and Gena Keebler, while waiting for individual courts to make this change however who wrote, “The pretrial release decision is a reflection of pretrial would be fruitless. Instead, the best way to achieve such reforms justice; it is the primary attempt to balance the rights afforded to is through legislative change. accused persons awaiting trial with the need to protect the com- munity, maintain the integrity of the judicial process, and assure Kentucky provides an exceptional example of legislative reform court appearance.”78 The rights of the accused are protected when that can achieve a bail system that is more equitable for poorer his bail is determined under a system that looks at his individual defendants. In 2011, Governor Steve Beshear signed into law a circumstances rather than his alleged misdeeds. The results of the landmark justice reform bill which significantly altered the state’s Kentucky reforms also showed that the appearance and public safety pretrial detention policies.66 One mandate was that the state rates in the state have remained consistent as well,79 indicating courts must now utilize evidence–based, objective “pretrial risk that the need to protect the community, maintain the integrity of assessments” in their bail determinations. Rather than relying on the judicial process, and assure court appearance are met as well. a non-personalized bail schedule to set bail, these means-tested assessments are prepared by pretrial services, and use self-provided

5 | SEPTEMBER/OCTOBER 2016 ABOUT THE AUTHOR 777, 780 (2014). ASHLEA HELLMANN 36. Petrossian, supra 2019. is a 2016 graduate of 37. Id. the University of Louisville Louis D. Brandeis 38. Caleb Foote, The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. School of Law. She also holds Bachelors’ 959, 961 (1965). degrees in communication and justice admin- 39. Kohl, supra 3. 40. Ewing, supra. istration, and a Master’s degree in criminal 41. Velman, supra 781. justice from the University of Louisville. Hell- 42. 1 Lane Goldstein Trial Technique § 4:10 (3d ed.) (database updated Nov. mann spent her law school career clerking for 2015). the Honorable McKay Chauvin and the Ricketts Law Offices, as 43. Kohl, supra 2. 44. Ewing, supra. well as participating on two mock trial teams and volunteering with 45. Kohl, supra 3. the Central High Partnership Program. Upon passage of the July 46. Petrossian, supra 2020. 2016 Bar Exam, Hellmann will eagerly begin her legal career with 47. Ewing, supra. the Jefferson County/Louisville Metro Public Defender’s Office. 48. Foote, supra 960. 49. 4 Crim. Proc. § 12.2(b) (3d ed.), citing Stack v. Boyle, 342 U.S. 1 (1951). ENDNOTES 50. Id. 51. 4 Crim. Proc. § 12.2(b) (3d ed.), citing Bandy v. United States, 81 S.Ct. 197 1. Philip Fahringer, Equal Protection and the Indigent Defendant: Griffin and its (1960). Progeny, 16 Stan. L. Rev. 394, 394 (1964). 52. Id. 2. Id. 53. Id. 3. Id. 54. Annie Wu, Brooklyn Charity Fund Seeks to Help People Too Poor to Afford 4. Matthew J. Hegreness, America’s Fundamental and Vanishing Right to Bail, Bail, Epoch Times, NY (Nov. 9, 2014) Available at: http://www.theepochtimes. 55 Ariz. L. Rev. 909, 917 (2013). com/n3/1070580-brooklyn-charity-fund-seeks-to-help-people-too-poor-to-af- 5. U.S. Const. amend. V ford-bail/. 6. Hegreness, supra 909. 55. Hon. Jonathan Lippman, VISION AND ACTION IN OUR MODERN 7. Hegreness, supra 949 COURTS (2014), http://www.nycourts.gov/ctapps/soj2014.pdf. 8. Hegreness, supra 909. 56. Id. 9. Id. 57. Ewing, supra. 10. Griffin v. Illinois, 351 U.S. 12, 16 (1956). 58. Foote, supra 961. 11. Id. at 17. 59. Wu, supra. 12. Id. 60. Id. 13. Hegreness, supra 958. 61. Ewing, supra. 14. Cornell University Law School, TOPN: Bail Reform Act of 1966 (Nov., 8, 62. Foote, supra 961. 2015), http://finchmccranie.com/table-of-contents-3/ii-the-arrest-stage/d- 63. Wu, supra. the-bail-determination/1-the-bail-reform-act-of-1966/. 64. Bail and Its Discrimination Against the Poor: A Civil Rights Action as a Vehicle 15. Id. of Reform, 9 Val. U. L. Rev. 167 (1974). Available at: http://scholar.valpo.edu/ 16. Jo Ann M. Arkfeld, The Federal Bail Reform Act of 1984: Effect of the Dan- vulr/vol9/iss1/6/. gerousness Determination on Pretrial Detention, 19 Pac. L.J. 1435, 1440-41 65. 4 Crim. Proc. § 12.2(b) (3d ed.) citing Pannell v. United States, 320 F.2d 698 (1988). (D.C.Cir.1963) (Bazelon, C.J., concurring in part and dissenting in part). 17. Hegreness, supra 959. 66. Velman, supra 783. 18. Rhiana Kohl, Bail in the United States: A brief review of the literature, Mass. 67. Id. at 787. Dept. of Corrections, p.1 (Nov. 2014). 68. Id. 19. Id. at 2. 69. Id. 20. Hegreness, supra 910. 70. Pretrial Services, Administrative Office of the Courts, Pretrial Reform in 21. Hegreness, supra 915. Kentucky, p.13 (Jan. 2013) Accessible at: http://www.pretrial.org/download/ 22. Id. infostop/Pretrial%20Reform%20in%20Kentucky%20Implementation%20 23. Id. at 958. Guide%202013.pdf. 24. Kohl, supra 2. 71. Id. at 13 25. Hegreness, supra 909. 72. Id. at 14 26. Id. at 910. 73. Id. at 16. 27. Griffin, 351 U.S. at 17; citing Chambers v. Florida, 309 U.S. 227, 241. 74. Id. 28. Bail and Its Discrimination Against the Poor: A Civil Rights Action as a Vehicle 75. Id. of Reform, 9 Val. U. L. Rev. 167 (1974). Available at: http://scholar.valpo.edu/ 76. Id. vulr/vol9/iss1/6/. 77. Id. 29. Scott W. Howe, The Implications of Incorporating the Eighth Amendment 78. Id. at 17. Prohibition on Excessive Bail, 43 Hofstra L. Rev. 1039, 1041 (2015). 79. Id. at 16. 30. Id. 31. Alex Petrossian, Finally Some Improvement, but Will It Accomplish Anything? An Analysis of Whether the Charitable Bail Bonds Bill Can Survive the Ethical Challenges Headed Its Way, 40 Fordham Urb. L.J. 2013, 2019 (2013). 32. Maura Ewing, Punished for Being Poor, Pacific Standard, (Sept. 3, 2015). Accessible at: http://www.psmag.com/ politics-and-law/punished-for-be- ing-poor. 33. Michael S. Woodruff, The Excessive Bail Clause: Achieving Pretrial Justice Reform Through Incorporation, 66 Rutgers L. Rev. 241, 242 (2013) 34. Ewing, supra. 35. Robert Veldman, Pretrial Detention in Kentucky: An Analysis of the Impact of House Bill 463 During the First Two Years of Its Implementation, 102 Ky. L.J.

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