NCJ Number
90990
Journal
Syracuse Law Review Volume: 34 Issue: 2 Dated: (Spring 1983) Pages: 517-574
Date Published
1983
Length
58 pages
Annotation
The bail process should be reformed to make explicit the historical connection between pretrial restrictions and the predicted outcome of the trial.
Abstract
Bail has always reflected the judicial officer's prediction of the trial outcome by being set in accordance with the seriousness of the offense, the weight of the evidence, and the character of the accused person. However, bail commentators have tried to avoid an implication that the bail process might prejudice. Thus, they have insisted that bail's only purpose is to deter flight. However, their definition of the risk of flight has mirrored the predicted trial outcome. A better approach to the problem would be to openly accept the relationship between pretrial restrictions and trial outcome. The alternative would be to separate detention from probable criminal culpability and therefore to base detention on status only. Those who argue that bail based on predicted trial outcome violates the presumption of innocence incorrectly describe the role of presumption before trial. In addition, they ignore the possibility that detention justified solely by the risk of flight or by danger to the community may constitute an even greater violation of due process. The principle of proportionality should govern bail by requiring that pretrial restrictions reflect the likely penalty that would be imposed after the trial. Making the role of the charge explicit would then require a more rigorous pretrial review of the evidence. A total of 275 reference notes are provided.