The Due Process of Bail
37 Pages Posted: 12 Feb 2021
Date Written: 2020
The Due Process Clause is a central tenet of criminal law’s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Essay considers the lay of the bail due process landscape through the lens of the district court’s opinion in O’Donnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the O’Donnell court failed to characterize pretrial process as a substantive due process right – as countless courts before it had -- the case offers a compelling possibility that such a characterization is in fact appropriate in defining due process in a pretrial setting. And so, this Essay concludes by reimagining pretrial due process as procedural and substantive in nature.
Keywords: bail, criminal law, criminal procedure, due process, Fourteenth Amendment, Eighth Amendment
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