The Present Crisis in American Bail

128 Yale Law Journal Forum 1098, 2019

28 Pages Posted: 21 May 2019

See all articles by Kellen Funk

Kellen Funk

Columbia University - Law School

Date Written: April 22, 2019


More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) postconviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these precedents while also taking account of the troubled history of American bail, particularly during the Reconstruction Era from which the right to sue state officials in federal court for violations of constitutional rights emerged.

Keywords: bail, federal courts, constitutional law, poverty law

JEL Classification: K14, K40

Suggested Citation

Funk, Kellen, The Present Crisis in American Bail (April 22, 2019). 128 Yale Law Journal Forum 1098, 2019, Available at SSRN:

Kellen Funk (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10009

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