Litigating Money Bail Away: A Dim Future for the Status of the Poor Under the 14 Amendment

Abstract

This essay is the first to analyze the possibility of ongoing litigation around bail reform to resurface 14th amendment jurisprudence regarding the status of the poor. Fifty years after Professor Caleb Foote predicted the coming constitutional crisis arising from the injustices generated by our financially based system of pretrial release—money bail—the underlying constitutional issues may soon finally reach the highest court in the land. As recent scholarship demonstrates, however, current Supreme Court jurisprudence may not look favorably at those petitioners who wish to expand Fourteenth Amendment protections to the indigent. Worse yet, precisely as these issues are resurfacing, the court is likely on the heels of a significant movement toward the right—producing a court ideologically inclined to be deaf to increasingly audible concerns in support of the poor.

In this essay, first, I contextualize the current bail system, drawing on criminal justice and social science research, to reveal a dim picture of the inequities it produces. I then overview the growing movement for bail reform, focusing on the recent package of lawsuits brought by Equal Justice Under Law in states across the country. Then I assess the constitutional analysis marshaled by these lawsuits, supplementing their claims with my own additional synthesis of evolving jurisprudence, and evaluating their likelihood of success. I argue that given existing jurisprudence, petitioners will have to seek heightened judicial scrutiny in order to push the Court to render the bail system unconstitutional. To attain the Court’s heightened scrutiny, petitioners will have to compel the Court to address wealth as the grounds for suspect class determination. Finally, I extend my analysis to the potential positions that a new and more conservative court under President Trump may take regarding the Fourteenth Amendment jurisprudence analyzed in the prior section.

Keywords: criminal law, bail reform, equal protection, due process, 14th amendment