The Constitutional Case for Clear and Convincing Evidence in Bail Hearings.

• Author: Berger, Marty

Table of Contents Introduction.. I. The Statutory Basis for the Preponderance Standard A. Pretrial Detention in the Federal Courts B. Circuit Courts' Statutory Interpretations of the BRA C. Enter Salerno II. The Policy Grounds for Enhancing Procedural Protections A. Why Do People Miss Their Court Dates? B. Non-Appearance as the Basis of Pretrial Detention C. Racial Inequities in Bail Hearings III. The Standard of Proof: How the Law (Re) Allocates the Risk of Error IV. The Constitutional Case for Clear and Convincing Evidence A. Understanding the Addington Rationale B. Applying the Addington Rationale to Pretrial Detention C. Tracing Developments in the Lower Courts D. Considering Counterarguments Conclusion Introduction

In the United States, the mass incarceration (1) of the presumptively innocent undergirds the mass incarceration of the convicted. Over 81% of the 547,000 people in local jails nationwide are awaiting the ultimate disposition of their cases. (2) The use of cash bail, which requires accused individuals (3) to put up sums of money in exchange for their liberty, has fueled the current crisis in pretrial detention. (4) Anyone who cannot afford their bail will remain incarcerated throughout the legal proceedings against them, which can last months (5) or even years. (6) Pretrial confinement disproportionately burdens people of color and low-wage earners, results in worse case outcomes for accused individuals, and adversely affects people's financial, employment, and housing stability. (7) Incarceration before conviction has become the "front door" to the criminal legal system's inhumanities and inequities. (8)

Advocates, scholars, and activists have long championed the elimination of money bail, (9) condemning the legal system for punishing poverty and wasting taxpayer dollars on incarcerating people who do not pose a credible risk of danger or non-appearance in court. (10) State governments have started heeding their calls. Recent legislation has curtailed judges' ability to impose financial conditions on release. (11) Many jurisdictions have implemented risk-assessment tools that purportedly make pretrial-detention determinations more reliable, consistent, and fair. (12) Enthusiasm for ending wealth-based detention continues to predominate in national discussions of the criminal legal system. (13) "Bail reform" has become synonymous with ensuring that anyone deemed eligible for pretrial release does not remain in custody because of their inability to pay. (14)

The energy behind the movement to abolish money bail has generated scholarly interest in a different constituency: people denied pretrial release altogether. Every year, thousands of individuals nationwide--including 1096 of everyone confined pretrial (15) and 7096 of cases heard in federal court (16)--receive no opportunity to make bail. People detained by judicial decree represent a relatively small subsection of the pretrial population, (17) though by no means one unworthy of public concern. As a future without cash bail beckons, detention orders are ripe to one day overtake unaffordable bail amounts as the primary instrument of pretrial confinement. In the interim, scholars have called on courts to end wealth-based detention by treating unaffordable bail amounts as the legal equivalent of detention orders. (18) Courts have started adopting this position, vowing to apply the constitutional protections associated with detention orders to grants of pretrial release subject to financial conditions. (19) As more courts follow suit, it is becoming increasingly clear that the law of detention orders has a bearing not only on the thousands of people detained outright--but also on the hundreds of thousands of people subject to wealth-based detention.

Yet the constitutional limitations on detention orders are unclear and underdeveloped. (20) As Sandra Mayson explains, the question of what "constraints the federal Constitution and state constitutions place on pretrial detention ... is the subject of ongoing debate." (21) "Without a clear constitutional standard in place," Jenny Carroll adds, "the process of pretrial detention systems can vary widely." (22) Of the jurisdictions with statutory regimes regulating detention orders, most require the government to prove the basis for detention by clear and convincing evidence in an adversarial hearing. (23) Others only expect the government to satisfy the lower preponderance of the evidence standard. (24) Many jurisdictions do not prescribe specific procedures and safeguards surrounding pretrial detention. (25) Because courts have not issued clear guidance, "there is no guarantee that existing statutes comply with constitutional standards." (26) Mayson calls clarifying the constitutional restrictions on detention "the central challenge now facing the bail-reform movement." (27)

Taking up Mayson's mandate, this Note argues that the government cannot constitutionally confine an accused individual pretrial except upon a showing of clear and convincing evidence. Detention based on any lower standard violates due process. The Supreme Court came close to endorsing this view in United States v. Salerno, which held that the federal Bail Reform Act of 1984 (BRA) did not violate the Fifth Amendment. (28) The question before the Court was whether detention based on dangerousness amounted to an unconstitutional deprivation of liberty. (29) The Court noted that the BRA permitted pretrial detention only in "narrow circumstances": when a prosecutor has clear and convincing evidence "the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community." (30) The BRA's clear and convincing evidence requirement for dangerousness, combined with other procedural safeguards, adequately protected individual liberty such that it withstood a constitutional attack.

Salerno left two questions unanswered. First, though the Court held that the safeguards under the BRA were sufficient to comply with the Fifth Amendment, lower courts diverge on whether those procedural protections are necessary to survive a constitutional challenge. (31) Second, Salerno only addressed detention based on dangerousness, but the BRA also provides for pretrial confinement if "no condition ... will reasonably assure the appearance of the person as required." (32) The BRA requires that the government prove dangerousness with clear and convincing evidence, but it does not mention the legal standard governing non-appearance. (33) When Salerno reached the Supreme Court, most circuit courts had already interpreted the BRA's silence as permitting a lower preponderance of the evidence standard for appearance--based detention. (34) Salerno did not explicitly settle whether the legal standard for pretrial detention could ever dip below clear and convincing evidence and, if so, whether there was any compelling reason to justify a downward departure to secure an accused person's appearance.35

This Note explains why the clear and convincing standard is constitutionally necessary regardless of how the government presents the grounds for detention. Salerno invoked a long line of cases that, most famously in Addington v. Texas, (36) require a showing of clear and convincing evidence before someone can be deprived of a fundamental liberty. (37) Appearance-based detention jeopardizes the same liberty interest as preventive detention; the value of freedom from confinement in no way depends on how the government frames its argument. Accused individuals and their advocates have therefore urged the adoption of the clear and convincing standard in pretrial proceedings, (38) with courts responding favorably. (39) While scholars have acknowledged the existence of a constitutional case for clear and convincing evidence, (40) none have meaningfully examined its history and theoretical foundation, traced its development in other areas of law, probed its policy implications, or illustrated its suitability to pretrial detention orders. (41) This Note endeavors to fill that void.

The argument proceeds in four parts. Part I charts the history of federal statutes governing bail hearings, recounts the heretofore untold story of how the circuit courts came to adopt the preponderance standard for nonappearance risk, and illustrates that the courts' rationales for doing so rested on statutory interpretation instead of constitutional analysis. Part II explores how the statutory framework has played out in practice, demonstrating that courts' fears of people intentionally evading the law have led to the widespread punishment of indigence and honest mistakes. Courts' failure to protect accused individuals from unnecessary and racially biased detention thereby indicates the need for more robust procedural safeguards. Part III details how adjusting the standard of proof can mitigate the impressionistic and prejudiced thinking that has pervaded the pretrial process. Part IV then argues that courts are constitutionally obligated to protect accused people from detention unless the government has presented clear and convincing evidence of dangerousness or non-appearance risk. Scholars have paid scant attention to the origins of what this Note calls the "Addington rationale," which describes the Supreme Court's repeated recourse to the clear and convincing evidence requirement when the government attempts to deprive someone of a fundamental liberty. (42) Delving into that rationale's history will help demonstrate why bail hearings fall within its scope.

1. The Statutory Basis for the Preponderance Standard

   This Note takes federal law as its starting point, though the constitutional standards for pretrial detention are also applicable to the states. (43) This Part recounts how the preponderance standard's use in bail hearings originated from fears of rising crime rates and ambiguous draftsmanship of a federal law that courts rushed to...