I'm just adding this post to, once again, remind everyone that there are certain issues a state must examine before deciding to change a constitutional right to bail provision, just as there are issues that a state must address when changing them. Whatever a state does to a constitutional right to bail provision involves drawing a line between release and detention, and that requires legal justification.
My latest paper provides a model for states that are asking: (1) whether to change their right to bail provision; and (2) if so, to what? More importantly, it shows how to legally justify the change.
Here it is, called "Model Bail Laws." It assumes that the reader will read Fundamentals of Bail and Money as a Criminal Justice Stakeholder first, and those are cited early on in the Model Bail Laws paper.
Once again, if a state changes its right to bail provision, it will need to legally justify it. The only way to do that is to work through the issues presented in the model in the paper. I don't require states to necessarily adopt my model, but courts will require that they justify theirs much like I justified mine. If they don't, the new provisions run a real risk of being struck through any number of legal theories.
Not to get too complicated, but the same issues that go into changing a bail provision will illuminate the fact that many existing detention provisions are currently unlawful, simply because those provisions were likely justified through assumptions that are false today.
The model in my paper is kind of long and a bit complex, but if anyone calls I'll help to explain it.
