When the government proposes to incarcerate a person before trial, it must provide thorough justification, whether the mechanism of detention is a transparent detention order or its functional equivalent, the imposition of unaffordable money bail. A court contemplating money bail must determine whether it is likely to result in detention. If so, and the court nonetheless wishes to impose it, the court must find, by clear and convincing evidence established through an adversary hearing, that the unaffordable bail amount serves a compelling interest of the state that no less restrictive condition of release can meet. This will rarely be the case. Few defendants pose an acute risk of willful flight or of committing serious harm in the pretrial phase. For the vast majority, attainable conditions of release can adequately protect the state’s interests in ensuring appearance and protecting public safety, while also preserving the fundamental right to pretrial liberty. The principle that the government must thoroughly justify any order of pretrial detention is not radical. Rather, it is continuous with the historical commitments of the bail system. Clarification of this core constitutional mandate is essential to recovering a rational system of pretrial detention and release, and the freedom it protects.
bail, criminal procedure, pretrial, incarceration
Mayson, Sandra G. and Funk, Kellen R., "Brief of National Law Professors of Criminal, Procedural, and Constitutional Law, In re Humphrey, California Supreme Court, Regarding the Imposition of Money Bail and Conditions of Pretrial Release" (2018). Faculty Scholarship at Penn Law. 2407.