Hofstra Law Review


Scott W. Howe


In its opinion in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), concerning the incorporation of the Second Amendment, the Supreme Court included a footnote that listed the Eighth Amendment prohibition on excessive bail as one of the incorporated Bill of Rights protections. Oddly, the Court had never incorporated the bail clause or even explained what protections it conferred. While strange, these circumstances provide a rare opportunity to reason backward from incorporation to the meaning of the incorporated provision. And by pursuing those backward implications, the paper offers novel arguments about the proper understanding of the bail clause.

I contend that incorporation solves two long-standing riddles about the clause. First, does it confer a right to bail? And, second, when bail is required, are the permissible goals of bail defined by construction of the clause itself? There has long been serious doubt that the clause grants any right to bail or defines any measure of excessiveness that exists apart from legislative direction. On this view, the clause is only a directive to judicial officers to respect the separation of powers by honoring bail legislation. However, I urge that incorporation implies that the clause must accomplish much more than this it if is to impose the kind of fundamentally important limits on state government that warrant incorporation. The clause, through construction, must grant a right to bail in broad circumstances and define the measure of excessiveness.

I also contend that incorporation calls for the Court to resolve two additional questions about the bail clause that it otherwise could have avoided. The issues concern the nature of the evidence that trial courts should consider in deciding bail questions and the standard that reviewing courts should apply in passing on the decisions of trial courts setting bond. On the first question, I contend that individualized consideration of the character, record and crime of an arrestee should generally inform bail decisions, which weighs against over-reliance on bail schedules.On the second question, I contend that the standard of review generally should ask whether a chosen bail amount is substantially more burdensome than required to reasonably assure the reappearance of the defendant. These conclusions balance the fundamental importance of thebail clause in safeguarding liberty and justice against several competing interests of government.

Finally, I argue that incorporation calls for rethinking the justiciability of excessive-bail claims on review of criminal convictions after trial. The prevailing view apparently is that the rights to bail and non-excessiveness are purely substantive. Denial is thought not to affect the validity ofthe trial. Based on this view and the notion that the rights end at the point of conviction, few cases requiring interpretation of the clause survive for presentation to the Supreme Court. I contend, however, that the rights to bail and non-excessiveness are not only substantive but procedural, because improper pretrial detention can prejudice the defendant at trial. Honoring the procedural aspect of the protections would acknowledge the full significance of unlawful detention for arrestees and enable the Court to receive more cases through which it could construct and enforce the clause.

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