It is no secret that the bail system is in desperate need of reform. Within the last few years, stories like that of Kalief Browder—a seventeen-year-old wrongfully arrested and then jailed for three years on a $3,000 bail he could not afford
—have shocked the public conscience and generated renewed interest in an age-old practice.
Processes usually relegated to dark corners of the criminal justice system have invaded popular discourse, begging critical (and basic) questions about the function and efficacy of bail as an institution.
Outrage over bail has manifested not only in a flurry of in-depth media coverage
but also in a deluge of scholarly criticism.
Commentators regularly note bail decisions that are marred by biases against criminal defendants’ race
and socioeconomic status.
Several empirical studies have found that individuals detained due to their inability to pay bail experience markedly worse case outcomes than their peers awaiting trial on the outside.
Still others have posited, at a macro level, that the flawed imposition of bail may bear ultimate responsibility for astronomic and unsustainable jail populations countrywide.
Politicians of all stripes
and the U.S. Department of Justice have joined the chorus, speaking out against bail practices that discriminate against poor parties.
Even celebrities have begun to weigh in: Jay-Z, for instance, has taken to print and social media to become a spokesman for the cause.
Almost everyone, it seems, can agree that bail is broken.
Consensus on how to fix the bail system, however, is much harder to come by. In large part, responsibility to pave the way forward has fallen to local justice systems, which effectuate the vast majority of criminal prosecutions in the United States.
It is “local implementation that truly shapes pretrial practice,” and local variation abounds.
Articulation of common goals
has yet to produce a discrete set of common solutions, capable of replication on a larger scale state-to-state.
Advocates are keen on effecting a radical reshaping of bail procedure but face systemic inertia and increasingly vocal resistance.
Generally overlooked amidst calls for reform and academic analyses are the processes already guaranteed to criminal defendants when bail has been set beyond their reach: bail appeals. The bail appeal (or “bail review”
) seems an intuitive choice for correcting systemic and individual errors in the bail process, if only because it follows the same basic logic as a trial verdict: If at first you don’t succeed, appeal to the next-highest court.
Naturally, the promises and pitfalls of the bail review are far more complex than its simple logic. This Note examines how criminal defendants challenge bail determinations in state court and investigates the bail appeal as a tool of reform. Part I provides a snapshot of bail procedure and then describes the background and legal foundations for appealing bail in state criminal courts. Part II elaborates on the gap in the law that makes bail appeals necessary and important for preserving the rights of criminal defendants. Finally, in Part III, this Note posits that the adoption of a flexible and robust appeals procedure for bail—which includes automatic interlocutory appellate reviews for indigent defendants—is a viable option for mitigating the ever-evolving bail problem.
I. Bail Appeal Basics
Pretrial practice and the bail experience are shaped by the peculiarities of state law.
An individual arraigned in one jurisdiction may find even the most critical rules of criminal procedure—when her first appearance in court may be scheduled, for example, or whether she is entitled to counsel at that time—unrecognizable from the rules governing the experience of a peer accused of an identical crime in a neighboring state.
At the same time, the characteristics that local justice systems have in common are telling: When states are laboratories of criminal justice,
the shared conditions of the experiment may be key to replicating successes across the board.
It follows that understanding the bail appeal requires study of the differences among local justice systems and the commonalities that run through pretrial practice nationwide. To that end, this Part surveys the law surrounding judicial review of bail and examines how defendants might appeal the bail set in their case. Section I.A provides a snapshot of bail procedure. Section I.B introduces relevant constitutional bail law—in the form of Supreme Court precedent on the Eighth Amendment and procedural due process—that comes closest to requiring a level of uniformity in bail jurisprudence from the states. Finally, section I.C elucidates the existing options for defendants who wish to challenge bail amounts, by either the common law writ of habeas corpus or jurisdiction-specific bail appeals processes.
A. Setting the Stage: Bail Hearings in Brief
Before delving into bail law and appeals, it is necessary to have a rough picture of bail hearings and their place in pretrial procedure. The bail determination—whether an individual must furnish the court with monetary collateral to avoid pretrial incarceration or may be released on her own recognizance
—is typically made during a defendant’s first appearance before a presiding judge or magistrate.
Guided primarily by state statute, presiding officials are tasked with determining whether bail should be set and at what amount.
In some jurisdictions, local law directs courts to consider specific factors in imposing bail,
but ultimately leaves officials with broad discretion over the decision.
Other jurisdictions restrict bail judges to consulting “bail schedules,” a list of preset bail amounts for each type of offense.
Naturally, local bail decisions—and valid grounds for their appeal—are also guided by the Constitution and applicable Supreme Court precedent, addressed in the following section.
B. Constitutional Bail Law and the Grounds for Appeal: Eighth Amendment Excessiveness and Procedural Due Process
In six words—“[e]xcessive bail shall not be required”—the Eighth Amendment opens a potentially powerful avenue for bail appeals.
Section I.B.1 lays out the modicum of controlling guidance on what constitutes “excessive” bail, gleaned through two landmark Supreme Court cases.
Section I.B.2 then outlines the limitations of Eighth Amendment jurisprudence as applied to bail determinations and subsequent appeals, through discussion of the Excessive Bail Clause’s incorporation and lackluster doctrinal development. Finally, section I.B.3 sheds light on crucial procedural due process
concerns that animate appellate review.
1. Stack, Salerno, and the Boundaries of Excessive Bail. — Modern bail jurisprudence was born in the fall of 1951, in Stack v. Boyle.
Stack marked the Supreme Court’s first meaningful foray into the Excessive Bail Clause and the law of pretrial detention.
The case involved twelve petitioners, each arrested on charges of conspiring to violate the Smith Act, a Cold War–era law targeting Communist sympathizers on American soil.
The District Court for the Southern District of California initially fixed bail in amounts varying from $2,500 to $100,000 for each defendant, which it later modified to a uniform amount of $50,000 per defendant.
Petitioners moved for a reduction in bail amount, claiming that the large sum violated the Excessive Bail Clause.
In support of that application, petitioners submitted “statements as to their financial resources, family relationships, health, prior criminal records, and other information” tending to show they could not afford the $50,000 ordered.
Apparently as a point of comparison, the government’s response consisted solely of cursory information on bail amounts for four other individuals previously convicted of violating the Smith Act in the same jurisdiction.
The district court held a hearing on the motion, in which the trial judge examined and an Assistant U.S. Attorney cross-examined the petitioners.
Notably, no further information was supplied on the four individuals referenced in the government’s response, and petitioners’ documentation of their inability to pay remained unchallenged.
Yet, the district court denied the petitioners’ initial motion to reduce bail and subsequent applications for habeas corpus challenging their pretrial incarceration.
The Ninth Circuit affirmed, and the Supreme Court granted certiorari.
In a brief but forceful opinion by Chief Justice Frederick Vinson, the Court reversed, holding that the petitioners’ bail amounts violated “statutory and constitutional standards” as excessive.
The majority began by firmly planting the institution of bail in the annals of American jurisprudence, calling on bail’s ancient roots and long history in U.S. law.
Chief Justice Vinson refused to mince words in explaining the gravity of pretrial detention and the potentially devastating effects of its misuse: “[The] right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.”
A threat to the right to bail, the majority warned, is a threat to the very foundations of the criminal justice system: “Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”
Acknowledging the subtext of the case—a resurgent fear of Communism
—head on, the Court took a similarly plainspoken tact. In perhaps the most powerful portion of the majority opinion, the Chief Justice assailed government attorneys for unsubstantiated claims of criminal conspiracy and issued a (metaphorical) indictment of abuses of prosecutorial power:
The [g]overnment asks the courts to depart from the norm by assuming, without the introduction of evidence, that each petitioner is a pawn in a conspiracy and will . . . flee the jurisdiction. To infer from the fact of indictment alone a need for bail in an unusually high amount is an arbitrary act. Such conduct would inject into our own system of government the very principles of totalitarianism which Congress was seeking to guard against in passing the statute under which petitioners have been indicted.
The Court went on to tailor the boundaries of the Excessive Bail Clause to bail’s efficacy as collateral: “Bail set at a figure higher than an amount reasonably calculated to fulfill th[e] purpose [of returning a defendant to court] is ‘excessive’ under the Eighth Amendment.”
In the case of Stack and his fellow petitioners, the Court found that the requested bail sum of $50,000 not only far exceeded the maximum fine for the offense at hand but was also “much higher than that usually imposed for offenses with like penalties.”
Particularly given the absence of evidence supporting an amount “greater than that usually fixed for serious charges” and the blanket nature of the amount rather than individualized determinations, petitioners’ bail was held excessive.
Nearly forty years passed before the Court addressed the Excessive Bail Clause again in United States v. Salerno.
The case involved a constitutional challenge to the Bail Reform Act of 1984,
a federal statute permitting the pretrial detention of a criminal defendant when the “[g]overnment demonstrates by clear and convincing evidence . . . that no release conditions ‘will reasonably assure . . . the safety of any other person and the community.’”
Petitioners in Salerno were arrested on assorted racketeering, fraud, and gambling charges.
The prosecution moved to deny Salerno and his codefendants bail, providing evidence that the men were major mafia players who represented a threat to public safety.
The district court granted the government’s motion.
In addition to a due process claim,
Salerno and his cohorts appealed on Eighth Amendment grounds, arguing that the Bail Reform Act’s authorization of pretrial detention for public safety offended the Excessive Bail Clause.
The Court’s short analysis of the latter issue
validated public safety as the second acceptable function of bail and narrowly interpreted Stack’s seemingly broad protections for criminal defendants.
Writing for the majority, Chief Justice Rehnquist rejected a clear-cut constitutional “right to bail” and noted that the Eighth Amendment provides few answers about the availability of bail, as opposed to its overimposition.
Turning to the definition of “excessive,” the Court recognized that legitimate government interests in regulating pretrial release may extend beyond ensuring defendants do not flee the jurisdiction before their next court appearance (“flight risk”), the only factor at play in Stack.
Whether conditions of release are “excessive,” the majority determined, is a necessarily comparative exercise: “[W]e must compare that response against [whatever legitimate] interest the Government seeks to protect by means of that response.”
While “[i]n our society liberty is the norm,” the Court found that pretrial detention is rightfully authorized when defendants are “charged with serious felonies . . . [and] found after an adversar[ial] hearing to pose a threat” to individual or public safety.
2. The Muddled Incorporation of the Excessive Bail Clause and Its Weak Progeny. — Stack v. Boyle’s and United States v. Salerno’s interpretations of excessiveness—bail beyond what is required to ensure a defendant’s return to court or assuage valid public safety concerns—remain the touchstones of bail jurisprudence.
Yet their legacy has been complicated by lingering controversy over the Eighth Amendment’s incorporation and a lack of doctrinal development.
The unusual incorporation of the Eighth Amendment has injected a measure of uncertainty into constitutional bail precedent.
Recall that both Stack and Salerno contemplated bail in federal courts, where the Eighth Amendment was certain to apply.
To date, no opinion has explicitly held that Fourteenth Amendment due process demands similar adherence to the Excessive Bail Clause by state courts,
a fact that could theoretically render constitutional bail law irrelevant in the local context. On the other hand, the Supreme Court has signaled on multiple occasions that the Clause’s incorporation has been long assumed.
One recent decision went so far as to list the Excessive Bail Clause among other incorporated rights in a footnote,
a move some have interpreted as a determinative ruling on the issue.
Even if doubts over incorporation flare in the future, analysis of “excessive” bail that sticks to constitutional principles is unlikely to be wholly invalid. Stack and Salerno are still cited as controlling precedent in many state bail cases,
and most states have simply adopted the Clause into their own constitutions
—all but assuring that the Supreme Court’s guidance will continue to play a part in state bail determinations and appeals.
The more serious shortcoming of constitutional bail law has been the degree to which the doctrine has stagnated.
In over thirty years, no meaningful precedent has emerged to fill in the gaps left by Stack’s broad brushstrokes or to limit the government interests articulated in Salerno.
Rather, the Excessive Bail Clause has been largely “abandoned . . . as a meaningful source of law.”
Consequently, the Eighth Amendment has largely failed to live up to its promise of relief for individuals seeking out its protections.
3. Procedural Due Process in Bail Precedent. — As with excessive bail jurisprudence, the Supreme Court has had few occasions to consider the procedural due process implications of bail determinations and ensuing judicial review. Again, Stack and Salerno are the reigning authorities: While not the focus of the Court’s holding in either decision, aspects of appellate review linger in the shadows of both.
Together, the cases hint at two important features of a constitutionally valid bail appeal. First, the Stack opinion emphasized the role of individualized bail assessments over preset or blanket amounts: “[T]he fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.”
Second, both cases stressed temporal restrictions on judicial review of bail determinations. Stack was the earliest to note that “[r]elief in this type of case must be speedy if it is to be effective.”
Picking up where Stack left off, the Salerno Court relied on the existence of “prompt” bail review procedure to deny petitioner’s due process claims.
The majority opinion expressly acknowledged the provisions of the Bail Reform Act that provide federal defendants quick judicial review of bail determinations
while emphasizing the regulatory nature of the Act and its other procedural safeguards.
C. The Modes of Appeal: Habeas Writs and Interlocutory Appeals in State Court
Guided by the broad framework of constitutional bail law, as well as local incarnations of the Excessive Bail Clause,
states have been largely left to their own devices in the actual implementation of bail appeal procedure. This section details the two existing modes of appeal for defendants in state court, fashioned from a combination of common law tradition and state statute: writs of habeas corpus (section I.C.1) and interlocutory bail appeals (section I.C.2).
1. The Traditional Mode of Appeal: Writs of Habeas Corpus. — Traditionally, state prisoners seeking to appeal conditions of their detention have had a singular option: a writ of habeas corpus.
Defined as “writ[s] employed to bring a person before a court . . . to ensure that the person’s imprisonment or detention is not illegal,”
habeas petitions operate as a catchall for challenging the conditions of pretrial incarceration.
The scope of habeas relief includes excessive bail amounts that result in unlawful detention.
In the modern proceeding, habeas writs challenging bail determinations may be filed in state or federal court in the jurisdiction where a petitioner is incarcerated
and are governed both by their long tradition in the common law
and by state statute.
Habeas writs’ common law roots command uniformity in the availability of the remedy for criminal defendants.
But while the availability of the writ is relatively constant across states, most other features of the remedy are not. Procedural rules for the granting of hearings and further fact-finding pursuant to habeas claims vary state to state.
Several states, for instance, require notice many days in advance of further hearings.
Others give judges wide berth in scheduling habeas hearings regardless of how long the petitioner has been incarcerated.
Similarly, the assistance of counsel is not universally assured.
Moreover, state habeas writs are judged not only by the controlling constitutional boundaries of excessiveness
but also by each jurisdiction’s own statutory guidance and precedent on bail.
In a single state, statutory factors for consideration might include the gravity and nature of the underlying offense
in addition to a myriad of personal details about the defendant, including previous criminal record, financial resources, and family and community ties,
among combinations of others.
Finally, the peculiarities of the standard of review for habeas proceedings are also state specific, though “abuse of discretion” is “[t]he traditional standard for determining excessiveness.”
State courts applying the standard have emphasized that abuse of discretion requires a high level of deference to trial court decisions, unless there has been an extraordinary and blatant invasion of constitutional rights.
2. The Other Appeal: Interlocutory Challenges to Bail Determinations. — Interlocutory appeals—appeals undertaken prior to the final adjudication of a case
—represent the other potential mode of redress for individuals incarcerated pretrial on excessive bail.
Unlike the habeas writ, interlocutory bail appeals are a purely statutory remedy.
Whether interlocutory bail appeals are feasible in practice is complicated in part by the uncertain applicability of the final decision rule, but more seriously by the limited statutory basis for judicial review. Not all trial court action may be appealed pre- or midtrial. As a general rule, the right to appeal attaches only to final trial court decisions that “end[ ] . . . litigation on the merits and leave[ ] nothing for the court to do but execute the judgment.”
The Supreme Court has time and again upheld the “final decision rule,”
justifying a restriction on interlocutory appeals in federal courts largely on the ground of judicial efficiency: “The foundation of this policy is not in merely technical conceptions of ‘finality.’ It is one against piecemeal litigation[,] . . . [for] conservation of judicial energy[,] . . . [and] elimination of delays . . . .”
The applicability of the final decision rule, and the inclusion of bail as an appealable determination before trial, is a settled matter in the federal system. The final decision rule has been codified in federal law
and its bounds litigated extensively in federal courts.
Exceptions to the rule are known collectively as the collateral order doctrine,
a “small class” of circumstances in which the rights at issue are “too important to be denied review and too independent of the cause [of action] itself to require that appellate consideration be deferred until the whole case is adjudicated.”
Stack v. Boyle clarified that, at least in the federal context, bail falls into this “small class” and is therefore appealable as a final decision.
Accordingly, as the Stack Court explained, “[t]he proper procedure for challenging bail as unlawfully fixed [in federal court] is by motion for reduction of bail and [interlocutory] appeal to the Court of Appeals from an order denying such motion” pretrial.
Yet while Stack and accompanying federal law make plain that federal defendants may pursue judicial review of bail, state pretrial detainees are not universally assured the same right. For one, the final decision rule and accompanying collateral order doctrine have not been held binding in state courts,
leaving ambiguity in the legal basis for appealing bail pretrial. Additionally, claims of excessive bail rarely reach higher courts of appeals,
meaning the right to bail review in the several states is unlikely to be clarified or articulated fully in local case law.
Rather, notwithstanding federal law and the constitutional boundaries of excessive bail, state pretrial detainees are forced to look to local statutes for relief or else hope that common practice in that jurisdiction provides another opportunity to be heard on bail.
Unfortunately for most criminal defendants, local penal codes have overwhelmingly failed to follow the federal lead.
The majority of states provide no statutory avenue for appealing the excessiveness of bail beyond the habeas writ,
and those that do often provide just a sentence or two on the procedure.
These silences in local law and their ramifications are discussed in greater depth in the following Part.
II. Really Appealable? The Real-World Difficulties and Collateral Consequences of Challenging Bail
Although criminal defendants have no constitutional right to appeal any trial court decision,
much less bail determinations, appellate relief in general remains a fundamental feature of federal and local justice systems.
In practice, a robust appellate system serves not only to “correct[ ] legal and factual errors” but also to “encourag[e] the development and refinement of legal principles,” “increas[e] uniformity and standardization in the application of legal rules,” and generally “promot[e] respect for the rule of law.”
In a more abstract sense, the ability to demand judicial review is also a concession to the fact of imperfect decisionmakers. To err, after all, is human—and procedures that “diffus[e] the power of an individual judge” protect a litigant’s dignity, preserve the voice of the accused, and lessen the impact of any mistakes made.
Concerns with fairness and individual dignity are amplified in the bail context, where—with freedom and more on the line
—criminal defendants are at the mercy of either a singular judge’s snap decision
or a preset bail schedule not tailored to their circumstances.
This Part explores these realities, expanding on the notion that a fair bail system has been compromised by the inability of criminal defendants to challenge initial determinations. Section II.A begins by providing an overview of the underlying systemic issues plaguing bail hearings, which are shockingly short proceedings that are prone to error and resistant to change. Next, section II.B expands briefly on habeas corpus as a mode of appeal, establishing the inadequacy of state procedure on the matter. Finally, section II.C surveys bail appeal procedure in three critical and representative states—Texas, New York, and California—which operate either without workable guidelines for review or with ineffective implementations of what might otherwise be a promising avenue for reform.
A. The Trouble with Bail Hearings
The flaws inherent in bail hearings bring the need for robust appeals into greater focus. Bail procedure in state criminal courts is deeply troubling to judges and defendants alike.
Viewed from the bench, bail hearings are thorny in two seemingly contradictory ways. First, states that do not rely on bail schedules frequently provide a complicated set of guidelines for judges to decipher,
without the time or the resources to execute a proper inquiry.
In Texas, for instance, judges or magistrates setting bail must analyze five enumerated (and rather nebulous) factors, one of which requires judges to ensure that the bail amount they set is not acting as an “instrument of oppression.”
The personal life and history of an individual may be scrutinized—from a defendant’s family relationships and community ties,
to her history with substance abuse.
Past contacts with the criminal justice system may come to bear as well, in the form of previous nonappearances in court or criminal records.
The ability of the defendant to make bail is not always taken into consideration,
nor is public safety a universally accepted guideline,
though both appear with some frequency in penal law. Some states even demand fact-finding on the underlying criminal matter in arraignments, requiring judges to weigh existing evidence against the defendant and dip into the merits of the case before it has begun.
Yet with all these factors and more at play, bail determinations are typically made in a few minutes at most.
It is a sad truism that while one “might expect that detention decisions would be made with care”—especially given the complicated legal frameworks judges are asked to parse—“[t]he hearings at which bail is set . . . are typically rapid and informal.”
Second, if judges have “too many”
rules to follow in making bail determinations, they are simultaneously endowed with a problematic amount of discretion.
In jurisdictions without bail schedules, this power is evident in statutory guidelines encouraging judges to consider whatever other information they feel relevant,
or allowing magistrates to craft conditions of release as they see fit.
Even jurisdictions with bail schedules frequently give judges control over when to deviate from preset bail amounts.
Of course, the existence of discretionary power alone is not necessarily problematic; the larger issue with judicial discretion in the bail context is that there are few bounds on that power.
Judges are almost never required to explain their decisions, in written opinions or otherwise.
In turn, there is little accountability when bail is set on the basis of factors beyond judges’ statutory and constitutional mandate.
This broad level of discretion has been criticized for permitting the misuse of money bail as “pretextual preventive detention” and for promoting the current trend in excessive pretrial incarceration.
From the accused’s perspective, it is difficult to comprehend just how distressing bail hearings are in real time. The extreme physical toll of being arrested and booked
is but one facet of the problem. Similarly disturbing is the idea that many individuals navigate bail hearings alone: At least eight states never provide counsel for defendants at the first appearance, and in many others, counsel is available infrequently, or only in “token jurisdictions” with highly populated urban areas.
At this juncture, it is crucial to note that much more than freedom from restraint and proper participation in one’s own defense are on the line at initial bail hearings. For one, there is growing consensus that pretrial detention is causally linked to adverse case outcomes
—that is, bail decisions may be more determinative of a person’s “guilt” than the strength of the criminal case against her.
Advocates have become increasingly concerned about this “plea-inducing effect” on individuals who might otherwise have had their charges dropped or resolved with noncarceral dispositions.
Studies indicate that detained defendants may be as much as twenty-five percent more likely to be convicted than similarly situated peers,
results that are shocking on an individual basis and broadly “undermine[ ] the legitimacy of the criminal justice system itself.”
The collateral consequences of pretrial incarceration further contextualize the prevalence of guilty pleas. Individuals who cannot afford bail routinely experience “lost wages, worsening physical and mental health, [and] possible loss of custody of children, a job, or a place to live,” among other ramifications.
Even short stays in local jails can be traumatizing or fatal.
The outcome of bail hearings can thus create the “Sophie’s choice” of remaining in jail and maintaining innocence, or pleading guilty and returning home with a criminal record that “follows them for the rest of their lives.”
Rampant pretrial incarceration punishes communities on a larger scale as well.
High bail has had especially corrosive and “grossly disproportionate” effects in low-income communities of color, whose members comprise the majority of pretrial jail populations and are more likely to remain in jail than their white counterparts.
As Professor Cynthia Jones recently noted, “nearly every study on the impact of race in bail determinations has concluded that African Americans are subjected to pretrial detention at a higher rate and . . . higher bail amounts than . . . white arrestees with similar charges and similar criminal histories.”
In light of the stakes for criminal defendants, arraignments create an environment that seems dangerously prone to error.
The notion that judges can carefully apply discretion and scrutinize “a defendant’s whole life” in a matter of minutes has long been the subject of intense criticism.
And, as the following sections will establish, the lack of opportunities for defendants to challenge bail determinations by habeas corpus or interlocutory appeals compounds the problem.
B. Concerns with Habeas Corpus
Habeas corpus has proven an incomplete remedy when it comes to stemming the tide of pretrial incarceration and offers little to counteract the deleterious effects of initial bail hearings.
To begin, some of the worst problems plaguing arraignments persist in habeas proceedings, rendering the writ just as ineffective as the initial bail determination. One of the most insidious is the lack of uniform right to counsel, which puts the neediest defendants at a severe disadvantage in the courtroom.
The issue of timing in habeas hearings and its bearing on collateral consequences similarly determines the efficacy of the writ.
Long deadlines for state habeas hearings
or wide deference to judges’ schedules
hinder the writ’s ability to combat the potentially devastating ramifications of pretrial incarceration.
State habeas simply does not act fast or flexibly enough to provide meaningful relief.
Finally, harsh standards of review have ensured that habeas hearings for bail accomplish little more than rubber-stamping trial judges’ initial determinations. The popular application of the abuse of discretion standard in particular has led to near-systematic denial of excessive bail claims,
foreclosing habeas as a meaningful second look at initial determinations.
C. The Inadequacy of Local Bail Procedure
Given the generally problematic state of arraignments
and inadequacy of habeas corpus,
the lack of workable procedure for judicial review of bail—or, often, any guidelines at all—becomes a more glaring gap in the law. Most states lack any guarantee of judicial review of bail conditions beyond the habeas remedy.
Even those local systems that provide bail appeals in some form often do so ineffectively, while struggling with rampant pretrial overincarceration. As three of the most populous states in the country
and most “productive” local justice systems of the modern day,
Texas, New York, and California serve as helpful case studies.
The following subsections briefly discuss local problems with arraignments and walk through pretrial bail appeal procedure in each state.
1. Texas. — The Texas Constitution guarantees the right to bail for all criminal defendants, save those accused of capital crimes.
The state’s statutory guidance on how bail must be set may also be characterized as fairly ordinary.
The functionality of these statutory guidelines, however, is belied by the experiences of Texan defendants, who encounter woefully inadequate initial bail proceedings and bail reviews. Perhaps nowhere is more emblematic of this status quo than Harris County,
the largest county in the state,
third-largest county in the United States,
and home of the nation’s fourth-largest city.
A wealth of judicial fact-finding on the area’s bail practices, stemming from a recent federal lawsuit challenging their constitutionality, makes it a valuable resource for understanding the system on the ground.
The findings are unsettling. Harris County misdemeanor defendants routinely find initial bail hearings conducted in an “assembly-line fashion,” often through a video screen in a conferencing facility in jail.
Access to counsel during this first proceeding is rare, and defendants frequently appear without representation.
The entire arraignment may last no longer than a few minutes.
In short, as the District Court for the Southern District of Texas ultimately held, the county’s bail practices are consistent with a “systematic policy and practice of imposing . . . bail as de facto orders of pretrial detention.”
More distressingly, once initial bail has been set, Texas defendants are provided with few options for bail appeals. Any oral or other informal motions for bail reduction at the first few hearings are conducted largely at the discretion of the judge and “only in a minority of . . . cases.”
Even when judges consider reducing a defendant’s bail, their reliance on the county’s bail schedules often brings the discussion to a screeching halt: One Harris County judge “testified that in his experience . . . seeking a bail review at the first appearance was futile because County Judges ‘stick to the bond schedule. That would be the answer. What does the bond schedule say?’”
More formal applications to revisit initial bail determinations also lack sufficient basis in statute or practical law. The state provides next-to-no procedural guidance for conducting appellate reviews of bail determinations, beyond one section in the Rules of Appellate Procedure.
And that same section of the code has been effectively gutted by the Court of Criminal Appeals, which held that the rule could not grant courts of appeals the jurisdiction to hear bail appeals.
That is to say that, in practice, bail appeals have no legitimate place in Texas law.
2. New York. — New York provides a statutory atmosphere similarly hostile to bail appeals. As a threshold matter, the arraignment system in New York—as in California and Texas
—has been plagued with horrific problems.
Criminal defendants are met with a mechanical and short procedure comparable to the Harris County system.
The results regularly leave low-income and low-risk individuals incarcerated for months or years pending trial.
New York’s bail appeal procedure does little to alleviate these issues. While individuals challenging bail as excessive in court have two options beyond the habeas remedy, neither properly functions as an effective second look at initial bail determinations. The first mode of appeal extends from section 510.20 of the Criminal Procedure Law (C.P.L.), which permits unlimited applications for recognizance or bail “at any time when a principal is confined in the custody” of the state.
Yet the section 510.20 remedy does little to actually aid individuals incarcerated on bail they cannot afford: In practice, it is common knowledge that the vast majority of “such application[s] [are] unlikely to succeed.”
These outcomes are perhaps unsurprising, given that the rule contemplates repeated oral applications to one judge, who was responsible for the initial bail decision and is unlikely to change her mind when presented with the same facts.
The second method of challenging bail, through C.P.L. section 530.30, shows slightly more promise for challenging bail determinations, but leaves just as many questions unanswered.
The section entitles criminal defendants to one review of a lower court bail determination by a superior court,
a step up from the repeated pleas of section 510.20.
Courts are apparently free to consider the issue of bail de novo,
but real questions remain about how deferential superior courts should be to lower courts.
In keeping with similar statutes, the brevity of the text of section 530.30 also leaves the door wide open for judicial discretion: There is no mention of the standard of review and no procedural or substantive guidelines for how these proceedings should function. The entire process is fraught with ambiguity.
In the recent past, New York has attempted to leverage the bail appeal to mitigate the crisis of pretrial detention. In October 2015, Judge Jonathan Lippman—then-Chief of the Court of Appeals—announced a series of reforms aimed at the injustices of the bail system.
A centerpiece of the effort was the implementation of automatic bail reviews for misdemeanor cases.
Since its announcement, however, lackluster implementation has plagued the program: Current accounts indicate that “automatic review hearings [do not] take place until at least eight days after defendants’ arrest,” and then only when “defendants agree that the hearings can occur in their absence. If the defendants want to be present for the hearings, they occur at least [ten] business days after the initial court appearance.”
Consequently, the state’s foray into bail appeals fails to meet the most basic demand of bail jurisprudence—speedy relief
—and remains a far cry from real progress.
3. California. — Despite its liberal reputation and a decades-long “Democratic lock on the [l]egislature,” California has only recently made hay of its supposedly fertile ground for progressive bail reforms.
This subsection addresses California’s “old” bail regime and its new bail landscape—effective October 1, 2019
Under the old regime, California defendants arrested for low-level offenses had two opportunities for bail-related appearances in succession.
Due in large part to overreliance on county bail schemes, though, neither offered a meaningful opportunity to contest bail amounts. Defendants were permitted to make oral applications for bail lower than the scheduled amount at their first court appearance, but judges and magistrates exercised essentially unlimited discretion in evaluating applications for modification.
The fight for unscheduled bail at a first appearance was so infrequently successful that it became “[c]ommon court practice” not to waste energy on the issue.
For individuals unable to afford scheduled bail, California law attempted a remedy somewhat approaching a formal bail appeal. Pursuant to the now-repealed Penal Code section 1270.2, defendants were entitled to a single judicial review when the conditions of bail result in their pretrial detention.
The review was automatic and held within a definite time frame—“not later than five days”—from the initial bail determination,
two features that seemed promising compared to states that provide even less protection.
Yet in actual practice, the procedure lacked bite.
The code dedicated a single sentence to the procedure of the appeal, without mention of how the review was to be obtained or adjudicated other than that it should be “automatic” and occur in front of “the judge or magistrate having jurisdiction of the offense.”
As in initial hearings, reviewing judges operated with both “imprecise guidelines to direct their discretion, and almost no meaningful oversight.”
Consequently, “the practical likelihood of changing the original judge’s decision” in a bail review was always “very small.”
Even when the California bail review procedure operated optimally, its timeline remained problematic. Despite a maximum waiting period of five days, the procedure still held individuals long enough to trigger many of the collateral consequences of pretrial incarceration and radically disrupt their lives—meaning the “automatic” intervention was likely too little, too late.
In sum, California’s traditional bail scheme largely failed to translate the spirit of constitutional bail law into practice.
On August 28, 2018, Governor Jerry Brown signed the California Money Bail Reform Act into law.
The Act repeals large portions of the Penal Code pertaining to pretrial release and detention—including those discussed above—and will make California “the first state in the nation to abolish [money] bail for suspects awaiting trial.”
The enormity of this achievement cannot be denied; eliminating cash bail is both historic and commendable. But the new law has critical shortcomings. To begin with, the Act “creates broad new categories of people who will now be presumed to be subjected to pretrial incarceration.”
That is, the Act lists a myriad of crimes and conditions that automatically foreclose the possibility of pretrial release.
This categorical approach has received swift criticism for being just as inhospitable to individual assessments as the bail schedules that came before it.
The Act also promises to release more individuals deemed “low risk,” but leaves responsibility for making risk determinations largely in the hands of the same government actors that misused that power under the old regime: county courts.
Local courts retain extremely broad discretion over the release conditions of any individual deemed “medium” or “high” risk as well.
In all, the new law threatens to “empower[ ] judges to take away . . . liberty based on biased algorithms and the judges’ own subjective choices, with no standards and no due process.”
Unfortunately, access to appellate review in the California Money Bail Reform Act also leaves much to be desired. Like its predecessor, the new law is light on procedural guidance for bail reviews, noting merely that “[i]f either party files a writ challenging the decision, the court of appeal shall expeditiously consider that writ.”
Given that assessments by newly minted pretrial assessment agencies are to take place within approximately twenty-four hours of arrest,
and preventive detention hearings approximately three days beyond that,
the new bail review timeline is strikingly similar to the previous five-day automatic review. Cash bail may be a thing of the past in California, but a more pernicious form of pretrial procedure may be on the horizon.
III. Building a Better Bail Appeal
Texas, New York, and California are certainly not the only states that have struggled to provide fair bail hearings and bail reviews.
They are also not alone in contemplating changes to the status quo. Spurred in part by media fury
and an increasing awareness of the dire “costs of pretrial detention,”
local courts and legislatures countrywide seem genuinely inclined toward reform.
But as bail becomes somewhat of a cause célèbre, it is easy to forget that its problems are deeply entrenched, complex, and, in fact, old news.
In the face of this seemingly insurmountable problem, this Part offers the implementation of a better bail appeal as a productive place to start. First, section III.A provides a roadmap for revamping judicial review by introducing ideal procedural guidelines—including automatic review for indigent defendants—that satisfy the constitutional boundaries of bail law and alleviate concerns stemming from bail hearings. Next, section III.B addresses potential criticism of increased and automatic judicial review in state bail systems.
A. Procedural Guidelines
This section offers a basic framework for an effective bail review. Section III.A.1 lays out guidelines for bail appeal procedure. Section III.A.2 then establishes automatic reviews for indigent clients as an essential component of a better bail appeal.
1. The Bones of a Flexible Approach. — The current state of bail hearings necessitates a bail review that takes longer than thirty seconds and takes place sufficiently soon after the initial determination. As established in section II.A, initial bail hearings are exceptionally short in practice, making bail determinations dangerously imprecise.
Bail appeals, properly formulated for longer hearings, can be leveraged to help correct for persistent deficiencies in arraignments. For the bench, alleviating the “assembly-line”
arraignment environment will allow a more thoughtful inquiry into complicated statutory factors, or at least a more meaningful exercise of judicial discretion.
For individuals challenging bail determinations, the ability to plead one’s case for more than a few minutes can be crucial. Given that pretrial detention status may determine whether a defendant is adjudicated guilty in the underlying criminal matter,
it is imperative that both sides have their say and that the process becomes properly adversarial. Longer hearings will also provide defendants a new opportunity to feel heard and respected in a process that can be extremely dehumanizing, even if outcomes remain effectively the same. Without advocating for a universal minimum length for appeal hearings, any bail appeal framework must be wary of pressures that conspire to shorten hearings in practice.
Second, while bail appeals should generally be longer, the time between the initial determination and appellate hearing must be shorter. Even a few days of pretrial incarceration are enough to seriously compromise an individual’s livelihood—not to mention the physical threat to life and limb that local jail conditions may pose.
Current bail appeal procedure, in both state-specific bail appeals and habeas corpus, has left a critical gap in the law on this point.
A better bail appeal can address this gap head-on by explicitly establishing the speed at which appeals occur, ideally within a maximum of forty-eight hours after the initial determination.
With a forty-eight-hour or similar deadline, courts can strike a far better balance between limited judicial resources and minimizing the damage of pretrial incarceration when bail has been improperly set.
Next, mandating the production of written opinions in bail appeals will demand a higher level of accountability from both the appellate judges who author them and the trial court judges and magistrates making the initial determination. During a bail review, even a short written opinion can help judges to reason through their own rulings, an especially important exercise when officials must parse complicated factors laid out in state statute.
A written opinion also provides an opportunity to pass critical judgment on the initial bail hearing official, and perhaps introduce an element of transparency typically lacking in the process.
Moreover, when an initial appeal is unsuccessful and defendants wish to continue the challenge, written opinions give subsequent appellate courts a record to work from that they presently lack.
Each of these features will ensure that bail appeals meet the demands of Eighth Amendment bail jurisprudence and due process. Longer hearings that result in written opinions will force a more meaningful determination on whether bail is nonexcessive or “reasonably calculated” to avoid pretrial flight
and protect public safety.
Due process’s dual demands of individualized assessments
and timeliness of judicial review
are also satisfied by a bail appeal that is carefully administered within forty-eight hours of the initial determination.
Finally, the bones of a better bail appeal have the potential to precipitate other positive changes in bail hearings and bail review procedure. For one, a more robust appeals process—one that registers as undeniably adversarial—has a stronger likelihood of inducing states to provide counsel to indigent defendants at earlier stages in their case.
Similarly, a better bail appeal increases the odds of doctrinal development in bail, simply by being more productive than other modes of challenging bail.
A greater wealth of case law might not only define more permissive standards of review for bail appeals
but also fill in gaps left by the dearth of constitutional bail law with system-wide effects.
2. Automatic Reviews for Indigent Defendants.— Automatic judicial reviews for indigent individuals are another essential component of a better bail review, targeted at the population rendered most vulnerable by the current system.
Despite widespread acknowledgement that wealth-based pretrial incarceration is not only bad practice, but may also violate constitutional rights,
many local bail systems continue to disproportionately lock up low-risk individuals who cannot afford to pay their way out.
These individuals are ideal candidates for pretrial release and arguably the easiest group to identify using an improved bail appeal. By automatically seeking out indigent defendants, and then permitting deeper inquiry into an individual’s financial situation and related matters,
a better bail appeal can reduce the prevalence of pretrial incarceration in vulnerable populations.
B. Defending a Better Bail Appeal
This section briefly responds to potential criticism of increased and automatic judicial review of bail determinations, concluding that bail appeals remain a worthwhile tool for reform.
1. Avoiding Rubberstamping. — A likely critique of bail reviews is that they might do little more than rubberstamp the results of bail hearings, particularly when judges review previous decisions using deferential standards of review.
Understanding that a high degree of deference is a risk of even a perfect bail appeal, this argument is unpersuasive for several reasons. First, refashioning the bail appeal may well result in doctrinal development in bail law, making it easier for appellate judges to consider the issue de novo.
Even if the standard of review remains the same, longer hearings and written opinions will give defendants better odds of having their bail lowered or eliminated than the current regime.
Further, while the initial transition period after implementation of automatic bail appeals might be rocky, the process will quickly develop a large body of appellate decisions that can increase efficacy and efficiency without encouraging rubberstamping. Increased review and record-making will lead to increased transparency on the part of judges and prosecutors participating in the bail decision— a deterrent for overly deferential decisionmakers. Simultaneously, stronger bail appeal procedure will serve crucial legitimacy interests, in parallel to the benefits of regular appellate procedure.
Given the critical state of bail today, the potential for failure is a poor excuse for inaction.
2. Conserving Limited Resources. — The cost of instituting a better bail appeal may also be subject to strong criticism. Undoubtedly, reforming bail appeals will require new investment on the part of local justice systems. Meeting the increased volume of hearings alone, from both automatic and voluntary appeals, will be expensive.
Many factors combine to justify this expenditure. In dollars and cents, states have already been pushed to the brink of financial crisis by the current state of bail.
Pretrial detention of mostly low-risk individuals has been estimated to cost taxpayers $38 million per day, or over $14 billion annually.
Per individual, this breaks down to estimated costs near $460 per day, or more than $167,000 per year.
Bail appeals, while requiring immediate spending to meet demand for hearings, may lessen the resources spent on detention downstream by securing the release of more defendants. The influence of bail reviews on initial bail determinations may also lessen the need for appellate hearings, further reducing spending.
The bail review hearings envisioned by this Note might prove relatively affordable as well, best evidenced by the existence of similar procedures in some state systems: At least five states and the District of Columbia implement some form of a twenty-four-hour automatic review when defendants are unable to meet pretrial release conditions.
While implementing a system with longer hearings, written opinions, and a short waiting time seems a tall order in the face of limited resources, it is heartening to consider that some of that work has already been done. It is hardly academic idealism to imagine that defendants in the rest of the country, beyond those few states with automatic review, might also deserve a second chance at a bail hearing.
The human cost of pretrial detention also demands somewhat radical change in bail appeal procedure. At its core, locking people away without a meaningful opportunity to challenge their status is antithetical to a justice system that reveres the presumption of innocence, values appellate procedure,
and declares that “liberty is the norm.”
Bail appeals may not be a panacea against biased judges, the lack of a uniform right to counsel in bail hearings, and every other shortcoming of arraignments, but by introducing a modicum of guaranteed procedure into bail, the process can push the system as a whole toward fairer ends.
3. Supporting Further Reforms. — Lastly, current reform efforts and the existence of other promising avenues for change are not fatal to the concept of a better bail appeal. It bears emphasizing that enhanced judicial review is a uniquely palatable type of bail reform. At base, the internal logic of appellate procedure is one deeply engrained in local justice systems countrywide.
Moreover, most state courts already experience some type of bail appeal, in the form of habeas corpus or interlocutory appeals.
In comparison to gutting local bail statutes or more radical reforms, a robust appellate procedure for bail determinations seems less likely to spark controversy and engender pushback.
None of the preceding is to say that increased judicial review is a whole solution to the problems plaguing bail, or the optimal mode of reform. Rather, bail appeals are most attractive as a companion and procedural safeguard for other efforts. In tandem with other reforms, bail reviews can provide stopgap protections for defendants while the details of sustainable, system-wide changes are worked out. The simplicity and flexibility of the bail appeal is key here: Bail appeals need not wait for litigation against local governments to be resolved
or for legislatures to complete a comprehensive reworking of bail statutes
to begin protecting individuals from unjust pretrial incarceration. There is also no reason to think the bail system of the future
will be unable to reap the benefits of a reformed bail review, which parallel those of appellate systems in general.
Even a “perfect” bail system will make mistakes. Giving defendants the opportunity to challenge bail determinations will continue to diffuse the power of individual judges and preserve the voice and dignity of the accused in the process.
In his majority opinion in Stack v. Boyle, Chief Justice Vinson conjured bail as the fine line separating pretrial justice from tyranny: “Unless [the] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”
Excessive bail, the Chief Justice opined, “inject[s] . . . [the] principles of totalitarianism” so anathema to the Constitution “into our own system of government.”
Yet those words stand in stark contrast to the bail system’s decades-long state of crisis and the experiences of countless pretrial detainees in local jails, incarcerated for their inability to afford freedom or otherwise challenge their detention status.
This Note offers the bail appeal as another creative solution to the ever-evolving bail problem. By adopting judicial review frameworks similar to the one suggested in section III.A, local justice systems can fill in dangerous gaps in their laws and reduce the financial and human costs of pretrial detention. In so doing, states will also recommit to a more just vision of pretrial procedure: When defendants have a meaningful opportunity to challenge bail determinations, liberty can be the “norm”
not just on paper, but in practice.