Excessive Bail (Eighth Amendment)

The Eighth Amendment currently states: “Excessive bail shall not be required.” This is supposed to help protect the presumption of innocence and strengthen the right to trial by jury, by making sure the government doesn’t set bail disproportionately high just to jail someone—before he has been found guilty—out of whim or malice.

Nonetheless, according to the Bureau of Justice Statistics, pretrial detainees account for almost one-fifth of the 2.4 million people incarcerated. More than half a million people are in jail simply because they can’t afford the bail set for them. It’s a pervasive blight.

The problem with the Constitution’s bail clause is that it speaks in vague terms about excessive amounts without giving judges (or anyone else) any guidance on how much is too much.­ It doesn’t make clear that we have the presumptive right to be home with our families instead of locked up in some squalid pesthole. This is surely wrong for most minor or nonviolent offenses where release, before trial, should be presumed automatic.

The Constitution also doesn’t say anything about who sets the bail amount, or who is on the hook for the money the defendant has paid if he doesn’t show for trial. In many states, the police or a court-appointed bail commissioner has first shot at setting the amount, and judges generally follow what they say. It’s often difficult for an officer who has just dragged a pain-in-the-ass suspect to jail to turn around and let him out, and bail commissioners, who are often untrained, usually follow the police recommendation or randomly assign an amount. Because most defendants can’t afford the payment, they turn to bail bondsmen—who make big business by preying on the poor and vulnerable.

Happily, there are modern, secure, and economical ways to run pretrial release that make all of this obsolete. But politics usually gets in the way. Broward County, Fla., for example, had a system of electronic monitoring and other measures that was cheap and safe. Offenders turned up to court, kept their jobs, and the county saved huge amounts of money. But after heavy lobbying by the influential bail bonding industry, the legislature killed the program.

Well-intentioned judges have now added to the bail mess. Since a 1987 Supreme Court ruling, judges have been allowed to impose ad hoc requirements on the defendants they release by making seat-of-the-pants predictions of risk. Unfortunately, risk reduction is becoming a cloak for a judge’s amateur social work. Lately, judges impose clusters of weird requirements that are clearly more punitive or rehabilitative, conditions such as mandatory AA, community service, taking your wife out to Red Lobster, or reading and writing book reports. And if you don’t fulfill them, you can go to jail for criminal contempt, even though you haven’t been convicted of the underlying crime you’re accused of. It’s all at odds with the constitutional presumption of innocence. Yet because there is no federal constitutional right to counsel during the bail process, there is usually little scrutiny, let alone protest. Observing this mess 20 years ago, Malcolm Feeley, the distinguished criminologist, concluded in the title of his famous book that The Process Is the Punishment.

So, here are our proposed changes to the Constitution’s bail clause:

“The right to release from custody, prior to conviction beyond a reasonable doubt, is a clear and important liberty interest. Pretrial detention is permitted only upon the government’s showing, by clear and convincing evidence, that the defendant poses a serious risk of flight or threat of substantial criminal wrongdoing. Pretrial release conditions shall be narrowly tailored to secure attendance at trial or the prevention of crime. Only state agents may assess and administer financial sureties; and counsel for the indigent shall be available prior to any determination of pretrial detention.”