Opinion: Bail clause is problematic, in need of change

Writers contributing to an opinion piece in Slate, the online daily news magazine, take issue with one element of our criminal justice system that they say is a “pervasive blight.”

Namely, that is the imposition of bail that attends to many federal criminal charges and state crime charges

Here’s the problem and central irony, they say, regarding bail. On the one hand, its rationale is to protect the presumption of innocence for a person who has been detained and accused of a crime by disallowing the government from setting bail disproportionately high “out of whim or malice.” On the other hand, though, and despite the constitutional mandate that, “Excessive bail shall not be required,” fully one-fifth of all incarcerated persons in the United States are pretrial detainees who cannot afford the price tag set for bail.

Bail needs to be reformed, argue the writers, owing in no small part to the Eighth Amendment being too vague. It doesn’t indicate what an “excessive” amount is. Nor does it clearly state what should be deemed the presumptive right of an individual charged with a minor and/or nonviolent offense to be automatically released rather than locked up prior to trial.

Who sets the bail, too, and who must pay up if a defendant is absent for trial, are also unmentioned in the Constitution. The rise of bail bondsmen — who the Slate authors say “make big business by preying on the poor and vulnerable” — owes to the silence.

Out of the vagueness have risen highly differentiated results owing to judges’ “ad hoc requirements” imposed on defendants — e.g., community service, compulsory drug or alcohol treatment programs and other conditions. Many of them have no connection with the underlying crime being charged. Slate calls that “amateur social work.”

The authors conclude that the bail clause needs to tightened up, with it being clearly stated that a right to bail “is a clear and important liberty interest.” Bail conditions must be very narrowly tailored and aimed toward only securing trial attendance. Bail bondsmen should become relics of the past, with only state agents being allowed to serve as sureties.

And, importantly, there must be a constitutional right to counsel during the bail process and before any determination is made concerning pretrial detention.

Source: Slate, “Fire the bail bondsmen,” Dan Markel and Eric J. Miller, June 19, 2012