AuthorCaleb Foote

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Bail is the prevailing method by which American law has dealt with a puzzling problem: what to do with a person accused of crime during the time between arrest and trial? Imprisonment imposed before trial subjects one who has not been and may never be convicted to disabilities that have all the attributes of punishment, disrupts employment and family ties, hampers the preparation of a defense, increases pressures to plead guilty, and, compared with bailed defendants, may prejudice trial outcomes and lead to more severe sentences. The development of the institution of bail over centuries of English history and its acceptance and liberalization in colonial America was an attempt to mitigate these handicaps and, by affording an opportunity for pretrial release, to emphasize the values underlying the presumption of innocence while also minimizing the risk that an accused who was not jailed would flee and evade justice. Thus bail makes possible pretrial release if the accused can provide financial security, which is subject to forfeiture if the conditions of the bond are violated.

Traditionally, the amount of security is set in an amount deemed by the court to be sufficient to deter flight and enforce compliance with the court's orders. The defendant's own money or property may be put up for this purpose, but in modern times the prevalent method of providing the required security is the purchase by the defendant of a commercial bail bond for a premium, usually about ten percent of the prescribed security. Conditional release on bail may also be available at later stages of the criminal process, for example, pending APPEAL after conviction or pending a hearing on parole or probation revocation, but the predominant use of bail and the most difficult questions raised by its administration relate to the pretrial period.

A "right to bail" is not a right to pretrial release but

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merely a right to have a court set the amount of the security to be required. A majority of criminal defendants have little or no financial ability to provide security. Furthermore, bondsmen can and often do refuse to bond those they regard as poor risks even if the amount of the premium is tendered. Thus a high rate of pretrial detention of those unable to provide bail has long been a characteristic feature of American criminal justice. Since the early 1960s a widespread bail reform movement has introduced procedures designed to reduce the dependence of the traditional system on the requirement of financial security, but these changes have supplemented rather than replaced money bail, which remains a dominant feature of the system.

The only direct reference to bail in the Constitution is the brief clause in the Eighth Amendment that "excessive bail shall not be required." There are serious problems in the interpretation of the scope of this limited clause and its application under modern conditions. On its face the language is only a restriction of the amount of security which a judge can require, and poses no constitutional barrier to legislative or judicial denial of bail. Alternatively, the clause has been read as necessarily implying a right to bail, as otherwise the clause is left with little significance.

There is no easy resolution of this problem. To infer...

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