Bail

Beyond the issue relating to the constitutional purposes of the bail process and the rights of defendants at bail, other serious problems are associated with the cash-based bail system. These problems derive from the discretionary and predictive nature of the bail decision, its cash-oriented form, and its problematic effects upon defendants and the community. In a period of a few minutes in a high-volume and overcrowded courtroom, and often with little information for guidance, a judge or other judicial officer in his or her discretion must weigh the risk a defendant poses of fleeing the court's jurisdiction (thus thwarting prosecution) or of posing a danger to the community, victims, witnesses, or jurors.

Predicting human behavior is a difficult undertaking in whatever setting, and regardless of whether subjective or statistical methods are employed. In deciding pretrial release at the first judicial stage, the problem faced by the judge, challenging under the best of circumstances, seemingly requires talents of judicial prognostication. The judge must "predict" the likelihood that a defendant will flee or commit a crime by reasoned guess or experienced hunch. The task is made more difficult because the judge is not asked to make a broader assessment, for example, of whether the defendant will ever reoffend, but is instead required to predict more narrowly what will occur during the narrow preadjudication period. The judge, who cannot really know what will happen in the short-term future, is nevertheless compelled to make a reasonable pretrial release decision balancing the interests of the defendant with those of the community and the justice system in effective prosecution and safety.

One of the due process arguments raised by critics of pretrial detention procedures is that the "danger" being predicted—posing a threat to "the safety of the community or to any other person"—is impermissibly vague in its definition. The more vague the description of danger, the more difficult for a defendant to show that he or she would avoid "it." Since 1970 a growing number of states have incorporated danger provisions in statutes and constitutions (Goldkamp, 1985). The shift from statutory silence to specific mention of the danger purpose in state laws represents a movement in the direction of greater explicit recognition of that goal and represents an improvement over practices that addressed danger sub rosa. However, the danger language that has been employed in bail laws may not resolve the vagueness concerns critics have voiced.

In a number of states, for example, rather general danger concerns are indicated, such as "the public would be placed in significant peril" (Colorado), danger to the "safety of the community" (Delaware), "danger to the public" (Vermont), or the defendant's release would be "inimical to public safety" (Minnesota). Unusual danger references include a Georgia law that considers the potential "threat" a defendant may pose to "any property within the community," while laws in at least six states allude to the possible danger defendants may pose to themselves. More specific danger references relate to "serious crime" (a number of states), to "physical harm to persons" (Florida), to "threaten[ing] another with bodily harm" (Minnesota), and "to protect members of the community from serious bodily harm" (Wisconsin). The imprecision of the danger targeted by pretrial detention not only poses a substantive problem for due process, it makes judicial prediction all the more problematic.

Reform-oriented critics of the bail process have argued that pretrial detention laws are unconstitutional and they deprive defendants of their liberty without the due process guaranteed under the Fifth and Fourteenth Amendments of the U.S. Constitution. Critics have argued that the future conduct being predicted (danger, threat to the community, etc.) is too vague, that the ability to predict at the bail stage is too errorprone, and that the criteria relied upon to make the bail predictions are often inappropriate to justify depriving an accused of liberty, given the presumption of innocence. Even under optimal prediction conditions, the ratio of incorrect to correct detention decisions ranges from about four to one to about three to one (Angel et al.).

According to critics, detention of a defendant before trial raises a presumption of dangerousness or flight risk (and, worse, of guilt) that the defendant has no means of refuting and leaves the defendant with the dilemma of having to prove the negative, that he or she would not be dangerous if released. Once confined, it is logically impossible for a defendant to demonstrate that a predicted act would not have occurred. Studies have also shown that detained defendants not only suffer the disadvantages of confinement, but are more likely to be convicted and sentenced to confinement upon conviction than their released counterparts. And reform advocates have argued that the best predictive intentions of the bail judiciary notwithstanding, pretrial detention is tantamount to punishment before trial, just as in Alice in Wonderland where punishment preceded the trial.

These due process arguments have been rejected by the courts. U.S. v. Edwards tested the constitutionality of the D.C. preventive detention law. And, in U.S. v. Salerna the U.S. Supreme Court considered a challenge to the constitutionality of pretrial detention under the federal procedures specified in the Bail Reform Act of 1984 in U.S. v. Salerno. (The Supreme Court addressed similar issues in the juvenile context in a case testing the constitutionality of New York juvenile detention law in Schall v. Martin (467 U.S. 253 (1984)).)

The courts evaluated the procedures authorized by the statutes. The procedures specified under the federal and D.C. laws include notice, a right to be present at the detention hearing, a right to be represented by counsel, a right to testify or present witnesses, and a right to confront and cross-examine prosecution witnesses. The challenged laws also list detention criteria to be taken into consideration by the judicial officer in determining whether "no condition or combination of conditions of release" will ensure the attendance of the defendant in court or protect the safety of the community or any other person. Schall, Edwards, and Salerno were consistent in finding that, despite the imperfections of detention decision-making and the difficulties of predicting future behavior, pretrial detention is an appropriate regulatory function and the procedures in the respective detention laws meet minimum requirements of due process.