Seeing Through the Emperor's New Clothes: Rediscovery of Basic Principles in the Administration of Bail

Abstract

Bail has historically been set in accordance with the seriousness of the offense, the weight of the evidence, and the character of the accused. Whether the purpose of bail was to deter flight, protect the community, or both, the criteria determining the availability and amount of bail remained the same. From the Statute of Westminster of 1275 to modern preventive detention legislation, pretrial restrictions have varied with the severity of the proposed penalty, the probability of conviction, and the defendant's record--the factors predicting the outcome of the trial. The relationship between pretrial restrictions and post-trial penalties has created a dilemma for the bail process. To acknowledge the relationship between the bail process and trial outcome is to risk prejudicing the trial; to deny the relationship is to ignore the primary concerns of the public and the judiciary. For centuries, bail commentators avoided the dilemma by coupling an insistence that the only purpose of bail was to deter flight with a definition of flight risk that mirrored trial outcome. By assuming that those facing the harshest penalties were the most likely to flee, judges could give the appearance of preserving the "presumption of innocence," while accommodating community concerns that pretrial restrictions be proportionate to the offense and that those defendants posing the greatest danger to the community be among the least likely to be released.

This article re-examines the nature of the bail determination and proposes a new framework for the analysis of bail proposals. First, the article traces the history of the criteria governing bail. Bail began under the Anglo-Saxons as a system in which the amount of bail necessarily equaled the monetary post-trial penalties of Anglo-Saxon law. Subsequent bail history can be explained as an effort to restore the balance lost with the imposition of corporal punishments after the Norman conquest of 1066. Each generation of bail reforms has sought to bring the bail process into greater alignment with trial outcomes, either to account for a more liberal or a more severe criminal code or to lessen the imbalance inherent in matching pretrial bonds to non-monetary penalties. Whatever the declared purposes of bail, pretrial restrictions remain linked to indicia of trial outcome. This article concludes that the relationship between pretrial restrictions and trial outcome should be embraced rather than battled. The alternative-detention divorced from criminal culpability-is detention on the basis of status alone. Those who argue that bail based on trial outcome violates the presumption of innocence mischaracterize the role of the presumption before trial and ignore the possibility that detention justified solely by flight risk or solely by danger to the community may constitute an even greater violation of due process.

Keywords: bail, criminal justice, criminal law, sentencing, legal history, criminal procedure