NCJ Number
93713
Journal
Washington and Lee Law Review Volume: 40 Issue: 4 Dated: (Fall 1983) Pages: 1575-1599
Date Published
1983
Length
25 pages
Annotation
The constitutional right to due process in relation to any deprivation of life, liberty, or property provides a sounder basis for resolving uncertainties surrounding the nature and scope of the right to bail than does an eighth amendment analysis.
Abstract
However, the prevailing constitutional rationale for bail is that a right to bail, although not absolute, is implicit in the eighth amendment prohibition against excessive bail. Controversy exists over the scope of an eighth amendment right to bail. The major problem with the eighth amendment analysis is that the amendment merely prohibits unreasonable sentencing or bail results and provides only a quantitative limit on the imposition of bail conditions. Both the punishment and bail provisions of the eighth amendment presume the existence of an underlying right but do not create it. As a result, some scholars and courts have concluded that a right to bail is totally dependent on statutory provisions. However, this approach overlooks the due process analysis. The due process analysis that has developed in the context of cases of civil commitment and procedures governing material witnesses is well suited to the bail issue. Under the Federal Bail Reform Act of 1966, Federal bail procedures closely parallel the scope of a right to bail under a due process analysis. Judicial precedent also supports the feasibility of a due process rationale for bail. Thus, the eighth amendment is not the basic source of the right to bail. A total of 185 footnotes are provided.