Devil Take the Hindmost: Reform Considerations for States with a Constitutional Right to Bail

This Article submits that any meaningful discussion of bail reform at the state level must be jurisdiction-specific, and it must account for the practical, historical, and philosophical aspects of the state constitutional right to bailability. Part II of this Article is an overview of the origins and history of English and American bail law. Part III describes the role and regulation of commercial bail bonding in the United States. Part IV traces the history and current state of bail reform in the United States. Part V considers legal and practical barriers to reform unique to right-to-bail states, particularly jurisdictions without the concentration and scale of resources to maintain the type of robust pretrial services programs that are the backbone of successful bail reform in large, urban jurisdictions. Moving away from money-bail in some jurisdictions may simply not be financially viable. But ignoring or perpetuating the undisputed negative impacts of moneybail may no longer be an option either, as courts become more willing to entertain constitutional challenges to bail practices that result in the routine pretrial detention of indigent defendants charged with low-level, non-violent offenses. This Article concludes that right-to-bail jurisdictions that rely on secured money-bail as a standard condition of release, but that do not take steps to ameliorate the many hardships money-based bail administration visits on indigent defendants, may find themselves “hindmost” in today’s bail reform world, forced to play catchup to a rapidly evolving jurisprudence and national sensibility