“Making Bail”: Limiting the Use of Bail Schedules and Defining the Elusive Meaning of “Excessive Bail”

Every day in the United States, thousands of people are waiting in jail postarrest prior to any trial or conviction. Once arrested, these individuals frequently face harsh conditions while they are held for their first appearance to be assigned bail. Thousands of individuals wait more than forty-eight hours to first appear in front of a judicial officer who determines their bail conditions. Innocent people––people who have committed no offense except that of being underprivileged––are pressured into accepting plea bargains because they cannot pay bail. Thousands remain in jail unwilling to accept plea bargains or admit guilt but are detained nevertheless because they are unable to afford their excessive bail amounts. These people are often the country’s most vulnerable, most poor, and most undereducated––and often minorities. These individuals are often arrested for crimes of vice, such as being intoxicated in public, or for petty crimes, such as driving with a suspended license. Bail is assigned through algebraic expressions that are hard to understand and in amounts even harder to pay. In an attempt at judicial efficiency and standardization, courts have overly relied on bail schedules while making those assignments. This frequently arbitrary reliance on bail schedules has resulted in a failure to make individualized bail determinations and has caused a rise in pretrial detention. Overreliance on these schedules coupled with a lack of guiding precedent from the Supreme Court has resulted in an excessive bail epidemic. Arbitrary bail procedures in the United States are now so perverse that they have vitiated due process and a presumption of innocence and have defeated the purpose of having an excessive bail clause in the U.S. Constitution. The Supreme Court should take clear action to restore this fundamental right and help end the United States’ excessive bail epidemic