Discrimination, coercion, and the Bail Reform Act of 1984: the loss of the core constitutional protections of the excessive bail clause.

• Author: Wiseman, Samuel

Introduction I. A Brief History of the Excessive Bail Clause of the Eighth Amendment A. The Petition of Right B. The Habeas Corpus Act of 1679 C. The Excessive Bail Clause of the English Bill of Rights D. Inclusion in the Bill of Rights E. Other Bail Provisions in Early America II. Interpretation of the Excessive Bail Clause Before Salerno A. Early Commentators B. Pre-Salerno Court decisions 1. Stack v. Boyle 2. Carlson v. Landon C. Modern Scholarly Opinion Before Salerno 1. The Argument that the Excessive Bail Clause Binds Only the Courts and Grants No Right to Bail 2. The Argument that the Excessive Bail Clause Binds Both Congress and the Courts and Grants a Right to Bail in All Noncapital Cases 3. The Argument that the Excessive Bail Clause Binds Both Congress and the Courts and Grants a Right to Bail when Pretrial Imprisonment is not Necessary for Effective Prosecution III. The Bail Reform Act of 1984 A. Alternatives to Detention B. Defendants Eligible for Pretrial Detention C. The Detention Decision D. Appeal IV. The Salerno Court's Bail Analysis and Subsequent Developments in the Literature A. Factual and Procedural Background B. The Majority's Excessive Bail Clause Analysis C. Bail Clause Analysis in Marshall's Dissent D. Subsequent Bail Scholarship V. The Bail Reform Act and the Historic Purpose and Core Principles of the Excessive Bail Clause A. Antidiscrimination, Anti-Coercion, and the Bail Reform Act of 1984 Conclusion INTRODUCTION

Courts and commentators have long noted the importance of bail before trial in allowing the effective preparation of a defense, protecting the falsely accused from the extremely unpleasant and disruptive experience of being jailed, and maintaining the presumption of innocence. (1) Indeed, the Framers considered bail sufficiently important to merit inclusion in the Bill of Rights. The Eighth Amendment reads, in part, "Excessive bail shall not be required." (2) The Excessive Bail Clause, however, has been called "some of the most ambiguous language in the Bill of Rights," and has occasioned a great deal of debate among jurists and scholars. (3) This debate has focused largely on two questions: whether the Clause binds only the courts or Congress as well, and whether it creates any substantive right to bail. (4)

These questions finally came directly before the Supreme Court in a constitutional challenge to the Bail Reform Act of 1984, the first federal statute to allow the denial of bail for dangerousness. (5) In United States v. Salerno, Chief Justice Rehnquist, writing for five other members of the Court, strongly suggested that the Excessive Bail Clause limits only the discretion of the judiciary and found, at a maximum, an extremely attenuated substantive right to bail. (6) There has been relatively little innovation in the law and scholarship on bail in the twenty years since Salerno, and without renewed consideration of the core purpose embodied in the Excessive Bail Clause, the Clause will continue to be little more than empty verbiage. This Article argues that the Excessive Bail Clause, while granting no substantive right to bail, protects criminal defendants from governmental discrimination and coercion--protections that are eviscerated by the Bail Reform Act of 1984. Part I will provide a brief history of the Excessive Bail Clause. Part II will examine the interpretation of the Clause prior to Salerno. Part III will look at the procedures of the Bail Reform Act of 1984, and Part IV will discuss Salerno's analysis of the Act. Part V will describe how the Bail Reform Act of 1984 fails to comport with the core constitutional purpose of the Excessive Bail Clause.

1. A BRIEF HISTORY OF THE EXCESSIVE BAIL CLAUSE OF THE EIGHTH AMENDMENT

   Although the history of bail in the Anglo-American system extends back to the Statute of Westminster I in 1275, (7) which dictated which offenses were bailable, (8) and even further to the earliest beginnings of criminal justice in England, the origins of the Eighth Amendment's Excessive Bail Clause can be more narrowly traced to the seventeenth century. (9) The struggle between the Stuart monarchs and Parliament led to three landmark pieces of legislation curtailing the exercise of royal prerogative and safeguarding individual rights: the Petition of Right in 1628, (10) followed by the Habeas Corpus Act of 1679, (11) and, finally, the English Bill of Rights in 1689, (12) which contains the "excessive bail ought not to be required" phrasing that, in modified form and after appearing in the Virginia Declaration of Rights, appears in the U.S. Bill of Rights. (13) This section will trace the history of the Excessive Bail Clause from its English roots to its inclusion in the Bill of Rights before examining, for context, other bail provisions of colonial and Revolutionary America.

   1. The Petition of Right

      The Petition of Right of 1628 was a Parliamentary response to the King's asserted royal power to jail his subjects without showing cause. The unpopular Charles I, after failing to obtain funding from the Parliament of 1626 for his support of the King of France's efforts to repress French Protestant rebels, collected dues and demanded mandatory loans from his subjects. (14) In what has become commonly known as Darnel's Case, five knights were imprisoned by royal command after refusing to make the imposed loan. (15) Counsel for the defense sought, among other relief, release on bail through habeas corpus, arguing that "since the five knights stood accused but not convicted, they should be freed on bail." (16) If not, Sergeant Bramston, attorney for one of the knights, argued, the protections of English criminal procedure would be worthless against the King, and his client's "imprisonment [would] not continue on for a time, but for ever; and the subjects of this kingdom may be restrained of their liberties perpetually." (17) Bail, in and of itself, was not the main issue in Darnel's Case; rather it was "the discretionary power of the crown to imprison its subjects without notice of the cause" (18) and the use of this power to target the King's political and religious opponents. The court, accepting the argument of the Attorney General, "ruled that the King (in the interests of preserving the state) had legal power to commit a person without showing cause." (19) Further, without cause "the court had no basis for judgment: it could not question the royal right to commit, nor could it grant bail." (20) As the court put it, "the King hath done it, and we trust him in great matters." (21)

      This decision angered many, and Parliament took up the issue in the following year, resulting in the Petition of Right. (22) The Petition, referring to Darnel's Case, asked that "no freeman, in any manner as before mentioned, be imprisoned or detained." (23) As Professor Caleb Foote notes, Parliament was aware during the debates over the Petition of the negative implications of the royal power of arrest without cause for statutory guarantees of pretrial release:

      [T]here was repeated discussion of the fact that, if the decision in Darnel's Case stood, it would impair the effectiveness of the Statute of Westminster the First of 127524 which governed admission to bail; thus Coke stated that "the cause of imprisonment must be known, else the statute will be of little force...." (25) The protection of the Petition of Right against the Crown's power to use the criminal justice system against his enemies was limited, however, while the King still had a prerogative court like that of the Star Chamber. Parliament abolished this court in 1641 and in the same act (26) provided: that any subject imprisoned on royal authority would have a writ of habeas corpus from the Court of King's Bench or Common Pleas; that the jailer would then have to return to the court the true cause of imprisonment within three days and that the court would then be required within three days to deliver, bail, or remand the prisoner. (27) Both the Petition of Right and the Act of 1641 proved procedurally inadequate to protect individuals from imprisonment at the King's discretion, leading Parliament to pass the Habeas Corpus Act of 1679.

   2. The Habeas Corpus Act of 1679

      In the years before the passage of the Habeas Corpus Act, both Oliver Cromwell and Charles II were able to imprison individuals without showing cause by exploiting procedural weaknesses in the existing laws, which did not cover persons imprisoned by order of the Secretary of State, persons whose cases had not yet been calendared by the jailer, or persons imprisoned outside of the jurisdiction of the court. (28) The Crown's exploitation of procedural loopholes to keep London alderman Francis Jenkes imprisoned in 1676 after his arrest for sedition--resulting from a speech in which he called for Parliament to be assembled (29)--is an oft-cited example of the abuses that spurred Parliament to pass the Habeas Corpus Act three years later. In that Act, Parliament noted its concern over these denials of bail, noting, "many of the King's subjects have been and hereafter may be long detained in prison, in such cases where by law they are bailable." (30)

      This Act was successful in strengthening the writ of habeas corpus and closing the procedural gaps in the preceding legislation, but nonetheless failed to completely curb the abuses it sought to remedy: the royal judges were able to literally comply with the Act yet still deprive royally-accused defendants of their liberty before trial by deliberately setting bail so high that the defendants could not pay. (31) Using the device of "excessive bail, the judges had made the Habeas Corpus Act inoperative with respect to those prisoners whom the King did not want to release." (32) This, then, led Parliament to include a prohibition against excessive bail in the English Bill of Rights of 1689.

   3. The Excessive Bail Clause of the English Bill of Rights

      As it became clear that royal judges...