The Present Crisis in American Bail

of 28
All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
Related Documents
    1098 THE YALE LAW JOURNAL FORUM   A PRIL 22,   2019 The Present Crisis in American Bail  Kellen Funk abstract.   More than fify years afer a predicted coming ederal 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 orming through these litigations. The major point o controversy is the level o ederal court scrutiny triggered by allegedly unconstitu-tional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (󰀱) post-conviction fines, (󰀲) preventive detention at the ederal level, and (󰀳) the adequacy o probable cause hearings. The Essay argues that the application o strict scrutiny makes the best sense o these precedents while also taking account o the troubled history o American bail, particularly during the Reconstruction Era rom which the right to sue state officials in ederal court or viola-tions o constitutional rights emerged.   introduction   In 󰀱󰀹󰀶󰀵, the civil rights advocate Caleb Foote oretold a “coming constitu-tional crisis in bail.” 1  Foote was an extraordinary law proessor whose research stemmed rom the multiple prison terms he served or conscientiously objecting to the draf. 2  To Foote, an opponent o Japanese internment in the 󰀱󰀹󰀴󰀰s and o  wealth-based detention in the 󰀱󰀹󰀶󰀰s, the crisis in bail seemed clearly imminent. Given the Supreme Court’s recent solicitude or deendants’ Fourth and Sixth  Amendment rights, 3  Foote was sure that American bail regimes were about to 1 . Caleb Foote, The Coming Constitutional Crisis in Bail: I  , 󰀱󰀱󰀳 U.   P  A  .   L.   R   EV  . 󰀹󰀵󰀹 (󰀱󰀹󰀶󰀵). 2 . Douglas Martin, Caleb Foote, Law Professor and Pacifist Organizer, Dies , N.Y. T IMES  (Apr. 󰀳, 󰀲󰀰󰀰󰀶),󰀲󰀰󰀰󰀶/󰀰󰀴/󰀰󰀳/us/󰀰󰀳oote.html [󰀹JQ󰀹 -QCYW]. 3 . E.g  ., Gideon v. Wainwright, 󰀳󰀷󰀲 U.S. 󰀳󰀳󰀵 (󰀱󰀹󰀶󰀳) (holding that the Sixth Amendment requires states to appoint attorneys to represent indigent deendants); Mapp v. Ohio, 󰀳󰀶󰀷 U.S. 󰀶󰀴󰀳  the present crisis in american bail 1099 ace intense pressure in the ederal courts. And i the states ollowed a “snail-like pace o reorm,” the ederal courts would have no choice but to “orce[] major change down the throats o the states by way o the ourteenth amendment.” 4  But the crisis as Foote oresaw it, one instigated and driven by the ederal courts, did not come. As the Warren Court gave way to the retrenchments o the Burger era, strategic litigation in Florida spurred the Supreme Court to establish new procedural rights to prompt probable cause hearings in Gerstein v. Pugh . 5  But Pugh’s challenge against Miami’s money bail system never reached the Court; instead, it resulted in a Delphic pronouncement by the en banc Fifh Cir-cuit. 6  The en banc majority approved o reliance on bail schedules but indicated that in practice the reflexive use o schedules might ail heightened ederal court scrutiny. 7  Five separate opinions then ollowed, disputing each point. 8  The Burger Court subsequently rejected an as-applied challenge to a money bail sys-tem in O’Shea v. Littleton , 9  now considered a classic case o ederal-court re-straint. 10  The only time the Supreme Court has addressed bail since was in United States v. Salerno , 11  in which the Court upheld the outright denial o bail under the 󰀱󰀹󰀸󰀴 amendments to the Federal Bail Reorm Act. 12   That is not to say there has been no crisis in bail. As with mass incarceration generally, pretrial incarceration exploded across the law-and-order decades o the 󰀱󰀹󰀷󰀰s and 󰀱󰀹󰀸󰀰s. 13  Estimates hold that today around sixty to seventy-five (󰀱󰀹󰀶󰀱) (holding that evidence obtained in violation o the Fourth Amendment is inadmissible in state-court prosecutions). 4 . Foote,  supra  note 󰀱, at 󰀹󰀵󰀹. 5 . 󰀴󰀲󰀰 U.S. 󰀱󰀰󰀳 (󰀱󰀹󰀷󰀵). 6 . Pugh v. Rainwater, 󰀵󰀷󰀲 F.󰀲d 󰀱󰀰󰀵󰀳, 󰀱󰀰󰀵󰀹 (󰀵th Cir. 󰀱󰀹󰀷󰀸) (en banc) (“[T]he new Florida rule is not acially unconstitutional and we abstain rom its urther consideration.”). 7 . Id.  at 󰀱󰀰󰀵󰀸. 8 . Id  . at 󰀱󰀰󰀵󰀹 (Simpson, J. dissenting); id  . at 󰀱󰀰󰀶󰀸 (Clark, J., specially concurring); id  . at 󰀱󰀰󰀶󰀹 (Coleman, J., specially concurring); id  . at 󰀱󰀰󰀷󰀰 (Gee, J., specially concurring); id  . at 󰀱󰀰󰀷󰀱 (Ru-bin, J., concurring). 9 . 󰀴󰀱󰀴 U.S. 󰀴󰀸󰀸 (󰀱󰀹󰀷󰀴). 10 . See, e.g. , R  ICHARD H.   F  ALLON ,    J R  .,  ET AL .,   H  ART AND  W   ECHSLER  ’ S T HE F  EDERAL C OURTS AND THE F  EDERAL S  YSTEM  󰀲󰀲󰀷-󰀳󰀵 (󰀷th ed. 󰀲󰀰󰀱󰀵) (discussing the case at length). 11 . 󰀴󰀸󰀱 U.S. 󰀷󰀳󰀹 (󰀱󰀹󰀸󰀷). 12 . Id.  at 󰀷󰀴󰀱;  see 󰀱󰀸 U.S.C. 󰂧󰂧 󰀳󰀱󰀴󰀱-󰀵󰀰 (󰀲󰀰󰀱󰀸). 13 . See N  AT ’ L R   ESEARCH C OUNCIL ,   T HE G ROWTH OF I NCARCERATION IN THE U NITED S TATES 󰀳󰀵 (Jeremy Travis et al. eds., 󰀲󰀰󰀱󰀴) (documenting an explosion in the rate o people incarcerated in jails).  the yale law journal forum  April 󰀲󰀲, 󰀲󰀰󰀱󰀹 1100 percent o all individuals in jails are unconvicted deendants awaiting trial. 14  Alt-hough it is difficult to measure with precision, undoubtedly a high proportion o these individuals are detained solely because they cannot afford the money-bail amount set in their cases. Those amounts are commonly set by courts on a slim evidentiary record in “hearings” lasting less than two minutes. 15  Money-bail systems remain the norm in state courts across the country; they are ar more common than systems in which judges order a deendant’s release or detention based on flight risk and dangerousness, such as in the (comparatively small) ed-eral criminal system. 16  Thus, the vast majority o pretrial detainees in the United States are confined because they cannot afford to post a bail amount set accord-ing to a schedule or afer a perunctory hearing. This is a reality made starkly apparent by the widely noted recent suicides o Kalie Browder and Sandra Bland, both detained because o their inability to pay a relatively small money-bail amount. 17  Pretrial incarceration on this scale has drained unathomable amounts o human and financial capital rom already marginalized poor com-munities and communities o color. 18   14 . See  T ODD D.   M INTON &    Z HEN Z  ENG ,   B UREAU OF  J USTICE S TATISTICS ,   U.S.   D  EP ’ T OF  J USTICE ,   NCJ   󰀲󰀴󰀸󰀶󰀲󰀹,    J  AIL I NMATES AT M IDYEAR   󰀲󰀰󰀱󰀴, at 󰀳 (󰀲󰀰󰀱󰀵), /pd/jim󰀱󰀴.pd [󰀸C󰀷-WH󰀹R] (estimating that sixty percent o jail inmates are unconvicted). For the most up-to-date figures drawn rom a variety o sources, see Peter  Wagner & Wendy Sawyer,  Mass Incarceration: The Whole Pie    󰀲󰀰󰀱󰀸 , P RISON P OL ’  Y I NITIATIVE  (Mar. 󰀱󰀴, 󰀲󰀰󰀱󰀸),󰀲󰀰󰀱󰀸.html [ /K󰀸FG-L󰀶CR] (reporting that seventy-five percent o people confined in local jails have not been convicted). 15 . See Megan T. Stevenson, Distortion o Justice: How the Inability to Pay Bail Affects Case Outcomes, 󰀳󰀴 J.L.    E CON .   &    O RG . 󰀵󰀱󰀱, 󰀵󰀱󰀴 & n.󰀵 (󰀲󰀰󰀱󰀸). 16 . See, e.g. ,  Pretrial Justice in America: A Survey of County Pretrial Release Policies, Practices and Outcomes , P RETRIAL  J UST .   I NST . 󰀲, 󰀷 (󰀲󰀰󰀱󰀰),  /System/DownloadDocumentFile.ashx?DocumentFileKey=d󰀴c󰀷eb󰀲-󰀵󰀵be-ccd󰀰-󰀰󰀶a-󰀰󰀲󰀸󰀰󰀲󰀱󰀸eeee&orceDialog=󰀰 [󰀳P󰀹-󰀲UT󰀲]   (reporting that 󰀶󰀴󰀥 o U.S. counties use a secured money bail schedule to determine eligibility or release prior to a first appearance hearing, based on a survey o 󰀱󰀱󰀲 o the 󰀱󰀵󰀰 most populous counties in the nation). On the ederal system’s general aversion to monetary conditions o release, see Thomas H. Cohen,   Bureau o Justice Statistics,    Pretrial Release and Misconduct in Federal District Courts, 󰀲󰀰󰀰󰀸-󰀲󰀰󰀱󰀰 ,   U.S.   D  EP ’ T  J UST .   󰀱, 󰀵 (󰀲󰀰󰀱󰀲),/prmdc󰀰󰀸󰀱󰀰.pd [󰀵SF-G󰀸LQ] (showing that o the 󰀳󰀶󰀥 o ederal deendants released pre-trial, 󰀲󰀷󰀥 were released on a monetary condition, and only 󰀸󰀥 used a commercial surety to satisy that condition). 17 . Jennier Gonnerman,  Before the Law , N  EW  Y  ORKER   (Oct. 󰀶, 󰀲󰀰󰀱󰀴), https://www.newyorker .com/magazine/󰀲󰀰󰀱󰀴/󰀱󰀰/󰀰󰀶/beore-the-law [󰀹LB󰀲-Z󰀹U󰀷]; Margaret Tal-bot, Watching Sandra Bland  , N  EW  Y  ORKER   (July 󰀲󰀹, 󰀲󰀰󰀱󰀵), /news/daily-comment/watching-sandra-bland [󰀷M-󰀹󰀷UM]. 18 . See C IVIL R  IGHTS D IV  .,   U.S.   D  EP ’ T OF  J USTICE ,   I NVESTIGATION OF THE F  ERGUSON P OLICE D  E-PARTMENT  󰀴󰀷-󰀶󰀲 (󰀲󰀰󰀱󰀵),ault/files/opa/press-releases  the present crisis in american bail 1101 Now, five decades later, we may finally be witnessing the crisis in the ederal courts that Foote oretold. In April 󰀲󰀰󰀱󰀷, Chie Judge Rosenthal o the Southern District o Texas enjoined the misdemeanor bail system o Harris County, Texas—the third-largest jail system in the nation—rom engaging in wealth-based detention. 19  Injunctions echoing the opinion and order o the Harris County litigation have since ollowed elsewhere in the Fifh and Eleventh Cir-cuits. 20  Cases pursuing similar theories are pending in district court in San Fran-cisco and New Orleans. 21  State courts, too, have interpreted the Federal Consti-tution to reach similar holdings. 22  This Essay surveys the constitutional terrain o ederal court bail litigation in the afermath o ODonnell v. Harris County . Now that local bail systems are under increased ederal court scrutiny, what are the key constitutional issues emerging, and where might we expect the courts to go rom here? 23  Part I briefly explains three theories driving the challenges—equal protection, substantive due process,  /attachments/󰀲󰀰󰀱󰀵/󰀰󰀳/󰀰󰀴/erguson_police_department_report.pd [ /X󰀲QN-󰀸DKB]. 19 . ODonnell v. Harris County, 󰀲󰀵󰀱 F. Supp. 󰀳d 󰀱󰀰󰀵󰀲 (S.D. Tex. 󰀲󰀰󰀱󰀷), aff’d as modified  , 󰀸󰀹󰀲 F.󰀳d 󰀱󰀴󰀷 (󰀵th Cir. 󰀲󰀰󰀱󰀸). 20 . Daves v. Dallas County, 󰀳󰀴󰀱 F. Supp. 󰀳d 󰀶󰀸󰀸 (N.D. Tex. 󰀲󰀰󰀱󰀸), appeal pending, Daves v. Dallas County, No. 󰀱󰀸-󰀱󰀱󰀳󰀶󰀸 (󰀵th Cir. Oct. 󰀲󰀳, 󰀲󰀰󰀱󰀸); Shultz v. Alabama, 󰀳󰀳󰀰 F. Supp. 󰀳d 󰀱󰀳󰀴󰀴, 󰀱󰀳󰀶󰀵 n.󰀲󰀳 (N.D. Ala. 󰀲󰀰󰀱󰀸), appeal pending sub nom.  Hester v. Gentry, No. 󰀱󰀸-󰀱󰀳󰀸󰀹󰀸 (󰀱󰀱th Cir. Sept. 󰀱󰀳, 󰀲󰀰󰀱󰀸). 21 . Buffin v. City & County o San Francisco, Civil No. 󰀱󰀵-󰀴󰀹󰀵󰀹, 󰀲󰀰󰀱󰀸 WL 󰀴󰀲󰀴󰀳󰀶󰀲 (N.D. Cal. Oct. 󰀲󰀸, 󰀲󰀰󰀱󰀵); Cain v. City o New Orleans, Civil No. 󰀱󰀵-󰀴󰀴󰀷󰀹 (E.D. La. Sept. 󰀱󰀷, 󰀲󰀰󰀱󰀵). Recently the  Buffin  court reaffirmed its holdings on the constitutional standard to be applied. See    Buffin , 󰀲󰀰󰀱󰀹 WL 󰀱󰀰󰀱󰀷󰀵󰀳󰀷, *󰀱󰀳-󰀱󰀶 (N.D. Cal. Mar. 󰀴, 󰀲󰀰󰀱󰀹). 22 . In re Humphrey, 󰀲󰀲󰀸 Cal. Rptr. 󰀳d 󰀵󰀱󰀳 (Ct. App. 󰀲󰀰󰀱󰀸), appeal pending  , 󰀴󰀱󰀷 P.󰀳d 󰀷󰀶󰀹 (Cal. 󰀲󰀰󰀱󰀸); State v. Brown, 󰀳󰀳󰀸 P.󰀳d 󰀱󰀲󰀷󰀶 (N.M. 󰀲󰀰󰀱󰀴); State v. Pratt, 󰀱󰀶󰀶 A.󰀳d 󰀶󰀰󰀰 (Vt. 󰀲󰀰󰀱󰀷). The re-mainder o this Essay ocuses on ederal court litigation. For a recent discussion o state court approaches to bail reorm, see Dorothy Weldon, Note,  More Appealing: Reforming Bail Review in State Courts , 󰀱󰀱󰀸 C OLUM .   L.   R   EV  . 󰀲󰀴󰀰󰀱 (󰀲󰀰󰀱󰀸). 23 . To make two things clear at the outset, this Essay is concerned with only the substantive re-quirements o the Bill o Rights and the Reconstruction Amendments. For these purposes, I take or granted that a bail challenge has achieved ederal court review on the merits by getting through the myriad procedural and jurisdictional challenges these cases ofen conront. That is no light assumption because standing, immunity, and abstention—just to name a ew ju-risdictional doctrines—present significant barriers,  see, e.g. ,   ODonnell v. Harris County, 󰀲󰀲󰀷 F. Supp. 󰀳d. 󰀷󰀰󰀶 (S.D. Tex. 󰀲󰀰󰀱󰀶), aff’d in part and rev’d in part  , 󰀸󰀹󰀲 F.󰀳d 󰀱󰀴󰀷 (ruling on the County’s motion to dismiss), which would require a separate volume to resolve. Second, I use “bail” in its colloquial sense o secured money bail—that is, a requirement or cash or collateral upront to be released rom pretrial detention. Bail has not always had that meaning, and or hundreds o years it involved no upront transers o money or collateral o any kind. See  Tim-othy R. Schnacke et al., The History of Bail and Pretrial Release , P RETRIAL  J UST .   I NST . (Sept. 󰀲󰀳, 󰀲󰀰󰀱󰀰),Bail-Pre-TrialRelease-PJI_󰀲󰀰󰀱󰀰.pd [󰀸QM-FYS󰀹].
Related Search
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks

We need your sign to support Project to invent "SMART AND CONTROLLABLE REFLECTIVE BALLOONS" to cover the Sun and Save Our Earth.

More details...

Sign Now!

We are very appreciated for your Prompt Action!