If you’re writing about excessive bail, I hope you’ll read this quick blog, which may give you some idea of how we're changing the typical excessive bail narrative.
For over 100 years, when they have actually addressed it, judges have been deciding excessive bail cases only one way. They take the amount – typically, a really high and arbitrary amount – and they compare that amount to other, equally arbitrary amounts in similar cases. The idea of deciding whether the amount is “reasonable” allows them to do this kind of fact-based analysis, and virtually all state supreme courts have said that excessive bail is defined as unreasonable bail.
The absurdity of this kind of analysis, however, is readily apparent by the fact that we actually have ALR articles that try to compile excessive bail cases, and those articles will often limit their compilation to, for example, “cases over $500,000,” as if a set sum can adequately delineate where the proper analysis of reasonableness or excessiveness can actually begin.
Now, however, there's a movement to analyze excessive bail cases differently, and it doesn’t involve any radical changes; indeed, it only involves getting back to the basics of the test for excessiveness itself.
First, though, realize that any excessive bail discussion can now rightfully include both federal and state law in the same document. Whereas once bail scholars used to debate whether the bail clause of the 8th Amendment to the U.S. Constitution was “incorporated” against the states, now everyone seems to agree that the Supreme Court believes that it is. Your cite on this point will be a bit strange, however, as you’ll likely be citing to footnote 12 in McDonald v. Chicago, a Second Amendment case, and that footnote’s reference to Schilb v. Kuebel as your authority. Even so, it’s a big deal, because now at least you have a decent federal standard to work with.
That standard comes from United States v. Salerno, in which the Supreme Court said that excessive bail involves a balancing test – i.e., balancing the government’s proposed conditions of release or detention with the perceived evil, or lawful purpose. This test, alone, opens the door to many more excessive bail arguments, once you realize that conditions or bail, or limitations on pretrial freedom, may include more than just financial conditions, and may only lawfully have one of two purposes – court appearance or public safety. This last requirement is extremely important. Bail set to punish is an unlawful purpose, and bail set to detain is equally unlawful. It’s like setting bail to impress your friends. That seems absurd, but we need to start thinking of conditions of bail (i.e., release) set to detain someone as being equally absurd and unlawful.
If you’re writing about excessive bail, realize, too, that since virtually every state defines excessive bail as “unreasonable,” we now have some pretty good research showing that secured money in most, if not all cases, is excessive because it's unreasonable. For example, we have research showing that setting an unsecured financial condition will get you the exact same results for public safety and court appearance as setting a secured financial condition, but will lead to less unnecessary detention. If you get the same results from a less restrictive condition, it simply wouldn’t be reasonable to set the more restrictive one, and thus the more restrictive condition should be deemed excessive. The essence of the Excessive Bail Clause is to keep the government from doing things to defendants “just to make sure.” Setting a secured financial condition violates the Clause, however, by exceeding the standard for setting conditions generally, which is that they can only be set to provide “reasonable assurance” or either public safety or court appearance, and not complete assurance or even “extra assurance.”
Basically, any research that shows that any condition of release doesn’t work – that is, that the condition doesn’t further the lawful purposes of bail – would argue for that condition to be declared unreasonable and thus excessive. But in bail, we have even more important research to help us. We now have research showing that if a judge sets a secured financial condition of release on a lower risk defendant, and if that lower risk defendant stays in jail due to his or her inability to find the money, bad things start to happen. In fact, the longer they stay in jail, the more likely they are to harm the public and not to come back to court. Now, if you’re a judge setting a condition of release to protect the public and get someone to return to court, would it be reasonable to set a condition of release that ended up doing the opposite of what you intended? Absolutely not. Would it thus be excessive? Absolutely.
Finally, if you’re writing about excessive bail, you’re going to have to deal with what I call the “unfortunate line of cases,” which is that line of cases that says, essentially, a financial condition isn’t excessive simply because someone can’t afford it. This line of cases is unfortunate because it's a complete aberration to the legal and historical notion that bail should equal release. The line was created at a time in America when we were running out of personal sureties, and we had not yet tried commercial sureties. We had tons of bailable defendants being detained unintentionally due to their lack of sureties and their inability to afford the financial condition themselves. Apparently, back then, judges were pretty skittish about flat-out releasing all bailable defendants (even though we had been doing that very thing for the thousand-year period before), and they didn’t have any other alternatives – i.e., no supervision, no risk assessment, no non-financial conditions of release, no research, etc., to alleviate their concerns. The fact is, though, today we have all the things necessary to encourage judges or legislatures to completely overturn this entire line of cases. Indeed, the cases have been overturned through the enactment of a single sentence in both the D.C. and federal bail statutes, which both say, essentially, that money cannot result in the pretrial detention of the defendant.
Bail reform in America means that we have to get back to basics in our legal foundations. Just remember that if something is unfair, unreasonable, irrational, or arbitrary, it’s likely unlawful. Because money at bail is all of these things, it’s simply a matter of time before it’s gone.