America’s Fundamental and Vanishing Right to Bail

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.” This is the “consensus” text of one of the most fundamental rights in American history. Even before the Bill of Rights was proposed to the states, Congress ensured this right in the U.S. territories with the Northwest Ordinance of 1787 and in the federal courts with the Judiciary Act of 1789. The states protected the right even more strongly—48 states protected this right as recently as a generation ago, and 42 states protected the right in at least one of their state constitutions. When the Fourteenth Amendment was ratified in 1868, more than three-fourths of the states—29 out of the then 37—provided the Consensus Right to Bail in their state constitutions. In these states, persons accused of a crime (other than a capital offense) had the right to be released on bail if they could offer a sufficient surety.

Despite its centrality to America’s constitutional history, the Consensus Right to Bail has been ignored in historical and legal scholarship. Based on a statistical analysis of all present and historical state constitutions, this Article presents the “consensus” text of this fundamental right for the first time. The articulation of the right to bail was remarkably consistent across states, hence forming a consensus. Although Congress—through the Judiciary Act of 1789—used different words to express the right to bail, the substance of the right to bail was the same under state and federal law and was stable for 200 years.

Since the 1970s, however, after the election of President Richard Nixon and the start of the “war on crime,” the right to bail has been under attack. Through 40 years of legislative and constitutional “reform,” the right to bail has been struck from federal law and rescinded or threatened in roughly half of the states. Now, persons accused of crimes are routinely denied bail if they are found to be a “flight risk” or a “danger to the community.” Only 24 states still provide in their constitutions the strong guarantee, unadulterated by radical reform, of the Consensus Right to Bail.

This Article argues that the Fifth and Fourteenth Amendments render invalid the recent federal and state encroachments on the right to bail. The trend toward abridging the freedom of accused persons not only denies a fundamental textual right of longstanding tradition, but also turns federalism on its head. In the past 30 years, the federal government, which in the 1984 Bail Reform Act curtailed the longstanding federal right to bail, has developed a rich set of criminal laws spanning across areas traditionally reserved to the states; yet, it has failed to provide the same level of constitutional protection for bail historically provided by the states.