1965] CRISIS IN BAIL 1183 not be made with significant reliability even under the best of fact finding and diagnostic circumstances. As it would have to be administered on a mass scale before the lowest level judiciary with no practical possibility of fast and effective appellate review, it would deteriorate into the worst kind of uncontrolled discretion. The impossibility of individualized preventive prediction in this area and the statistical demonstration that the least number of mistakes will be made by releasing everyone is a convincing modern vindication of the wisdom of the absolute right to bail which has been an important part of our history since the Massachusetts Body of Liberties in 1641. 5. As for the hypothetical defendant, he should be released on recognizance pending his trial. Even if he is in fact innocent, he may be unable to find his witnesses, or get them to testify, or if they take the stand the jury may refuse to believe them. But a system of justice which is inevitably going to make some mistakes should have an easier conscience if it has given him at least this much chance to defend himself. It is also quite possible that the defendant's alibi and his witnesses may be nothing more than figments of a lying imagination. In this event, if he is released he may try to manufacture witnesses and produce a perjured defense. He may, in the common usage which reveals the extent of our prejudgment, "repeat his crime." Or he may abscond, either because he knows he is guilty or because he knows he is innocent but doubts that a jury could be so persuaded. Still another conceivable, if unlikely, result is that he would abuse pretrial freedom by doing harm to the informer, Inman, against whom he has expressed some resentment. The weighing of such imponderables, whose probability cannot be determined, against the possibility of injustice to the accused, a risk whose magnitude is unknown, poses for adjudication on an individual case-by-case basis an impossible task. For the class of accused criminals of which the hypothetical defendant is a member, however, we either know or could discover what these probabilities are. On the one hand, perhaps a quarter of defendants like him will not be convicted; on the other hand, fair estimates are that the statistical incidence of attempted flight followed by ultimate rearrest is small, of permanently successful escape far smaller, and of the other risks, so small as to be statistically insignificant. The genius of specifically enumerated Bill of Rights guarantees such as the eighth amendment is that they make policy equally applicable to all members of a class, instead of succumbing to the seductive delusion that by prediction in individual cases one can reduce the total number of errors. 1184 UNIVERSITY of PennsYLVANIA LAW REVIEW [Vol.113:1125 6. At first blush there appear to be substantial disadvantages for the government in the position which is here taken both as constitutional exegesis and as the wisest resolution of the bail problem. In the long run, however, my conclusion is that the government's administration of criminal law is less likely to be harmed than benefited from the abolition of pretrial detention. The possible losses are immediately apparent. To an unknown but perhaps significant extent the government would be deprived of some advantages it now derives from pretrial detention, for example, detention's contribution to the present high rate of guilty pleas, or the government's superior negotiating position in plea bargaining with jailed defendants. Such advantages, however, are illegitimate and are exacted in a discriminatory fashion only from the poor. If there were to be a significant decrease in the proportion of guilty pleas and a corresponding increase in the proportion of those going to trial, a problem with which we are already familiar as a result of provision of assistance of counsel for all defendants, the pressure for additional facilities to deal with criminal administration would increase. But there is no escape from the fact that more equal justice for the indigent is going to impose new and heavy burdens on the state. Such burdens can, however, have advantages as well. Increased pressure might promote greater efficiency in prosecution, especially in early screening of cases. It might speed the urgently needed reexamination of the role of the criminal law in conjunction with possibly increased reliance on other noncriminal sanctions and controls. Every stage of the criminal process from the police lockup to the penitentiary is now loaded with unnecessary cases: for example, we use arrest where summons would suffice, fail to screen out cases efficiently early in the prosecution process, fail fully to utilize probation and parole, and apply criminal sanctions where they are inappropriate or unnecessary. Thus Packer has persuasively argued that the time has come "to reexamine the uses now being made of the criminal sanction with a view toward deciding which uses are relatively indispensible and which might with safety (and perhaps even with some net gain to the public welfare) be restricted or relinquished.” 879 Very sharp curtailment of pretrial detention would bring many compensating advantages, for example, vast savings in present high detention costs, reduced exposure to county jail life (aptly characterized as training in crime), and probably an increased incidence of probation as previously detained defendants would be in a better position to qualify for it. More subtle, but perhaps even more sig879 Packer, Two Models of the Criminal Process, 113 U. PA. L. Rev. 1, 67 (1964). 1965] CRISIS IN BAIL 1185 nificant, would be a change in the image the law presents to the economically depressed levels of our population. Equal justice should be more than charity for the poor; it should build that respect for law which in the last analysis is the only secure foundation for effective enforcement. If these conclusions about bail appear to be strong medicine, disrupting the familiar and entailing risks which are probably magnified in our imagination because they are unknown, then to that extent the bail crisis will force us to probe again what we really mean by due process and equal justice. It will also test the quality of our democracy, for, as has been repeatedly observed, a revealing measure of any civilization is found in its treatment of citizens accused of crime and I would add-of those crippled by poverty in the adversary struggle with the state. ment on crime control, called for legislation to permit “temporary pretrial detention" of criminal defendants whose "pretrial release presents a clear danger to the community."1 Pursuant to the President's directive, the Department of Justice sent to the Congress, on July 11, 1969, a proposal2 amending the Bail Reform Act of 1966 which would, inter alia, permit the federal courts to detain up to 60 days prior to trial those criminal defendants who are charged with certain crimes of violence; whose release, even with conditions imposed, would constitute a danger to the community; and who have been afforded a hearing with appropriate procedural safeguards. For criminal defendants not detained prior to trial, the proposal would authorize courts to consider the defendant's potential dangerousness to the community in determining and setting conditions of pretrial release. Furthermore, new sanctions are provided for violations of conditions of release, for bail jumping and for crimes committed while on release. 4 The question of pretrial detention raises issues of constitutional dimension; such detention has been challenged on the grounds that it violates the eighth amendment, the presumption of innocence and • Attorney General of the United States. LL.B., 1938, Fordham University. The Attorney General gratefully acknowledges the assistance of Associate Deputy Attorney General Donald E. Santarelli and Earl J. Silbert and James L. Kelley of the Department of Justice in the preparation of this Article. 127 CONG. Q. WEEKLY REP. 238 (Feb. 7, 1969). 2S. 2600, 91st Cong., 1st Sess. (1969). For the text of the bill and an explanation of the various provisions, see 115 Cong. Rec. S7906-11 (daily ed. July 11, 1969). See also 27 CONG. Q. WEEKLY REP. 1270 (July 18, 1969). AP 151 Reproduced with permission from Virginia Law Review, Vol. 55, no. 7, pp. 1223-1242, November 1969 by Legislative Reference Service on June 9, 1970. 1224 Virginia Law Review [Vol. 55:1223 the due process clause of the fifth amendment. This Article will analyze these issues and set forth a constitutional basis for the proposal. EIGHTH AMENDMENT The only provision of the Constitution which specifically mentions bail is the eighth amendment. Its language, which does not expressly grant or deny the right to bail, is susceptible of two interpretations. First, because the amendment does not provide for denial of bail, it can be construed to require the setting of bail in all cases with the proviso that it never be excessive. Second, because the amendment does not specifically grant the right to bail, it can be construed to mean only that bail shall not be excessive in those cases in which it is proper and that the setting of no bail in certain cases is not excessive. While the first of these two interpretations would prohibit pretrial detention of criminal defendants, the second would not. To resolve the ambiguity of the abbreviated language of the eighth amendment, it is necessary to examine the historical context in which it was adopted in 1791 on the assumption that those concerned with drafting and ratifying the amendment generally intended to conform the law to contemporary practices. The only Supreme Court opinion which discusses the history of the eighth amendment and its application to the right to bail clearly adopts the interpretation which permits denial of bail prior to trial in some situations. In Carlson v. Landon,10 the Court stated: The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal cases * See text at notes 39-75 infra. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. CONST. amend. VIII. 10 342 US. 524 (1952). |