But the question arises as debates over bail reform rage from Maryland and New Jersey to Texas and California, asking a more fundamental question of how to balance individual liberty with state power to secure public safety and justice. Proponents of reform who question the constitutionality of money bail, including former Attorney General Eric Holder, argue that setting bail at an amount higher than an individual can afford to pay violates the Fourteenth Amendment to the U.S. Constitution. Those defending the constitutionality of money bail, including conservative lawyers Paul Clement and Chuck Cooper, point to the Eighth Amendment, arguing that money bail is constitutional even when an individual cannot afford to pay bail, so long as the amount is reasonably calculated to assure his appearance at trial.
Reform advocates make compelling policy arguments for changes to discrete bail practices, and indeed state legislatures may wish to act on them. But claims that money bail is unconstitutional are incorrect and risk misinforming policy changes that may bring with them unintended and potentially severe consequences.
Four recent events illustrate the build-up in today’s bail debate.
In February 2015, the U.S. Department of Justice’s Civil Rights Division filed a statement of interest in a class action lawsuit in federal district court arguing that “any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.” (Varden v. City of Clanton, No. 2:15-cv-34-MHT-WC (M.D. Ala., Feb. 13, 2015).)
In December 2015, the Obama White House Council of Economic Advisers wrote an issue brief that expounded on the administration’s public policy concerns with state and local bail practices. The brief made two particularly compelling policy arguments. First, that “bail practices can result in detaining the poorest rather than the most dangerous defendants before trial.” Second, individuals detained before trial who cannot afford bail may undergo significant hardships, such as potential loss of employment, limited access to defense counsel, and a reduced opportunity to prepare a defense.
The cost of housing individuals who cannot afford to post bail in jails is also a driving factor of the bail reform movement. According to county officials in Cook County, Illinois, for example, out of approximately 7,500 individuals in jail, at least 1,100 are held on bail of $5,000 or less; and 300 on $1,000 or less; while the county pays at least $150.00 per day per person in pre-trial housing costs. Cook County Sheriff Tom Dart, has expressed his openness to replacing cash bail with more extensive background checks, preventive detention for individuals who pose a risk of flight or danger, and additional pretrial services for defendants who secure release before trial.
In 2016, the Civil Rights Division’s Office for Access to Justice wrote a “Dear Colleague Letter” to state judicial officers that recommended specific actions based on prior legal and policy opinions. Citing its 2015 statement of interest in Varden v. City of Clanton, the letter repeated the argument that “any bail practices that result in incarceration based on poverty violate the Fourteenth Amendment,” and urged recipients to “consider transitioning from a system based on secured monetary bail alone to one grounded in objective risk assessments by pretrial experts.”
Finally in October 2016, in a memorandum to Maryland Attorney General Bryan E. Frosh entitled “Maryland’s Wealth-Based Pretrial Detention Scheme,” former Attorney General Eric Holder offered additional policy arguments in favor of reforming bail practices—chiefly, that indigent defendants who are unable to pay even modest bail amounts may enter into plea bargains simply to end their pre-trail detention. But the memo further claims that “Courts across the country have invoked” U.S. Supreme Court precedent “to find that wealth-based pre-trial detention schemes are unconstitutional.”
In a Heritage publication, “The History of Cash Bail,” Heritage Policy Analyst Jason Snead and I review the history of the Eighth Amendment bail clause in light of those arguments. We find that the text of the Constitution, U.S. Supreme Court precedent, and legal history all indicate that a money bail scheme is not unconstitutionally excessive solely because it is “wealth-based” in general or if money bail is unaffordable in some instances. Rather, the concern when setting bail is whether the amount imposed is reasonably calculated to ensure the defendant’s appearance at trial. Neither the due process nor equal protection clause fundamentally changes that analysis whenever a defendant held in pre-trial detention cannot afford bail.
Unlike incarceration after a criminal conviction, pre-trial detention is not for the purpose of punishment. Obama Justice Department officials overlooked that crucial and longstanding distinction in framing their constitutional arguments against money bail, and read too broadly a line of Supreme Court cases that apply the Fourteenth amendment in a post-conviction context. While due process provides the appropriate analysis when some aspect of an individual’s pre-trial detention is punitive, it does not supply a backstop whenever pre-trial detention is prolonged because the detainee is unable to post bail. Likewise, the rational basis review that equal protection analysis requires in alleged wealth discrimination cases does not avail advocates who seek to erase bail from its place in the Eighth Amendment.
At the heart of the bail controversy is the fact that judicial officers have enormous discretion to calculate and impose bail. That discretion may be restrained somewhat in jurisdictions that use bail schedules to assign predetermined sums based on offense categories, subject to judicial review. Nevertheless, reform advocates argue that judges often set bail too high, particularly as a substitute for requiring pre-trial detention when they perceive a defendant to be potentially dangerous or unlikely to appear for trial.
States have a variety of policy options at their disposal to address those concerns. Some states have abolished commercial bail. Nebraska has successfully experimented with automated court date reminders to reduce failure to appear rates. And several jurisdictions have adopted risk-assessment tools to determine what type of restraint to impose on an individual pending trial, ranging from detention to release on recognizance. New Jersey, for example, recently overhauled its bail practices, adopting a risk assessment algorithm created by the Laura and John Arnold Foundation called the Public Safety Assessment™ (PSA) which generates a score that is intended to guide a judge’s determination of a defendant’s risk of failure to appear or of committing a crime if released before trial.
While promising, like human calculations, the algorithm approach is fallible.
From thousands of cases that arose over the six months following New Jersey’s bail reform, only 17 defendants received an option to post bail to secure their release.
While awaiting trial for an alleged assault, Zabdiel R. Vargas-Soto was released under electronic monitoring per the guidance of the PSA. Vargas-Soto had no prior criminal convictions and seemed to present a low risk of violence. But on release, he allegedly murdered two brothers.
It seems that the concerns raised by the Obama economic advisers and others—of detaining defendants who do not pose a risk of flight or committing crime if released, and releasing defendants who do pose such risks—may well persist after even the most well-intentioned reform. That is not an argument against state experimentation in pre-trial practices, particularly not against experimentation in developing effective risk assessment tools like the PSA; only against doing so on the false premise that bail is unconstitutional and therefore off-limits as one way to assure appearance at trial.
Bail remains on as firm a constitutional footing today as when the bail clause was written into the Bill of Rights. Arguments against money bail should remain focused on discrete practices that may be unlawful or bad public policy. The question that states ought to ask, therefore, is not whether the Constitution needs to be radically reinterpreted, but whether bail remains an effective means of ensuring appearance at trial, and if equally or more effective means now exist, is some change in order?