Discrimination, Coercion, and the Bail Reform Act of 1984: The Loss of the Core Constitutional Protections of the Excessive Bail Clause

Abstract

The core purpose of the Excessive Bail Clause was the prevention of the abuse and manipulation of the bail system by the Stuart kings and their royal judges. Rooted in these historic protections, while granting no substantive right to bail, the Clause protects criminal defendants from governmental discrimination and coercion. These protections have been subverted by the Bail Reform Act of 1984, which demands the consideration of ill-defined personal characteristics – from "character" to "community ties" – in the bail decision, and the Court’s interpretation of that Act in United States v. Salerno. Since this decision, many scholars have abandoned the Clause as a meaningful source of law. A renewed discussion of the Bail Reform Act is necessary to revive the most basic protections of the Excessive Bail Clause.

Keywords: bail, Excessive Bail Clause, Eighth Amendment, Salerno, Bail Reform Act of 1984, criminal, defendant, constitution