'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 post-arrest prior to any trial or conviction. Thousands wait more than forty-eight hours to first appear in front of a judicial officer who determines their bail. Even more remain in jail unwilling to accept plea bargains or admit guilt but also unwilling or unable to afford bail. These people are often the country’s most poor and most undereducated—often minorities. These people are often arrested for crimes of vice—such as being intoxicated in public, or petty crimes—such as driving with a suspended license. Once arrested, they frequently face harsh conditions while they wait for their first appearance to be assigned bail. Once “heard,” bail is assigned through algebraic expressions 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 has resulted in a failure to make individual-by-individual bail determinations and has caused a rise in pretrial detention. Overreliance of these schedules coupled with a lack of guiding precedent from the U.S. 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 United States Constitution. The Supreme Court should take clear action to restore this fundamental right and help end the United States excessive bail epidemic.