308 BROOKLYN LAW REVIEW [Vol. 37:277 implicitly creates a right to pretrial bail, it is difficult to understand why so many states thought it necessary to include both rights. The history of constitutional drafting throughout the United States indicates that when a right to bail is intended, it is set forth in clear and unambiguous language. Second, the very same Congress that passed the eighth amendment enacted the Judiciary Act of 1789,179 which created a statutory right to pretrial bail in noncapital cases similar to that found in colonial statutes while denying bail in capital cases. It is illogical to argue that Congress would adopt a constitutional amendment granting an absolute right to bail within days of passing a statute that withholds that right in a specific class of cases. If the eighth amendment is read as granting an absolute right to bail, every federal bail statute since 1789 which authorizes the denial of bail in capital cases is unconstitutional, and the constitutional and statutory enactments of virtually every state in the union appear likewise unconstitutional when they carve out capital case exceptions.180 It is more plausible that the eighth amendment was not intended to create any right to bail, but, rather, was intended to protect against the arbitrary use of money bail to deny release in those areas where Congress granted the right by statute. If one accepts the view that the Constitution permits the denial of bail in certain cases, the next problem is to determine the permissible grounds for denial. Opponents of pretrial detention argue that risk of flight is the only historical ground for the granting of bail, and justify the capital case exception on the ground that danger of flight is so great when life is at stake that it warrants pretrial detention in such cases. It has been suggested recently, however, that another reason existed in 1789 for denial of bail in pretrial cases-danger to the community.181 When one looks at the wide range of capital cases in 1789,182 where bail could be denied, it is noteworthy that many of the cases were those where the crime was highly dangerous,183 and where the D. C. Crime Act contemplates detention today-rape, arson, 179 Supra note 3. 180 Although there is no direct Supreme Court holding in point, it seems clear that the excessive bail clause of the eighth amendment applies to the states through the due process clause of the fourteenth amendment. Mastrian v. Hedman, supra note 168; Pilkinton v. Circuit Court of Howell County, Missouri, 324 F.2d 45 (8th Cir. 1963). The cruel and unusual punishment clause of the eighth amendment has been held applicable to the states by the Supreme Court. Robinson v. California, 370 U.S. 660 (1962). 181 See Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, supra note 17, at 1225. 182 An extensive list of these statutes is set forth in Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, supra note 17, at 1227-29 n. 22. 183 Id. 1971] BAIL REFORM 309 burglary, robbery, and the like. As time has passed, the use of the death penalty has declined, but the reasons for this decline doubts about the efficacy of the death penalty as a deterrent, and the increasing possibility of rehabilitation—have no relation to the possibility that a defendant charged with a crime like rape or robbery may pose a danger to society if released. Thus, ending capital punishment has little to do with granting or denying pretrial release for dangerous crimes. If the sole reason for the denial of bail in capital cases is the high risk of flight, it should follow that as capital offenses decline, and as the death penalty is abolished, the right to pretrial bail should be extended to cover the former capital cases. Yet, an examination of the laws of those states where capital punishment has either been totally or partially abolished reveals a contrary trend. Maine, for instance, abolished capital punishment in 1887.184 However, the present Maine Constitution, adopted in 1819, some 68 years before abolition, states: No person before conviction shall be bailable for any of the crimes which now are, or have been denominated capital offenses since the adoption of the Constitution, when the proof is evident or the presumption great, whatever the punishment of the crimes may be 185 In an early compilation of Maine laws, capital offenses included treason, murder, rape, arson and burglary.188 Any person today charged with one of these offenses may, under existing Maine law, be held without bail. It would seem that the drafters of the Maine constitution in 1819 were worried about something more than flight when they considered the relationship between capital cases and bail. A more recent example of the same trend occurred in Iowa. In 1965, the legislature abolished capital punishment by reducing the punishment for murder in the first degree and kidnapping for ransom, from death to life imprisonment.187 At the same time the legislature amended the bail statute, which had provided for bail in all but capital cases,' so that bail is now deniable in both of the cases where capital punishment formerly existed.189 188 184 Executions, 1930-1967, National Prisoner Statistics, Bulletin No. 42 Bureau of Prisons, United States Department of Justice 32 (1968). Capital punishment has been abolished in full or in part in thirteen states: Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, New York, North Dakota, Oregon, Rhode Island, Vermont, West Virginia and Wisconsin. Id. 185 Maine Const. art. 1 § 10. Bail is covered in Maine by court rule and the applicable rule permits bail to be granted in all cases in accordance with the constitution and statutes of this state." Rule 46 (a) Maine R. Crim. Proc. 186 L. 1822, ch. I-IV; VI. 187 Iowa Code Ann. §§ 690.2, 706.3 (Supp. 1970). 188 Iowa Code Ann. § 763.1 (1949). 189 Iowa Code Ann. § 763.1 (Supp. 1970). The Iowa Constitution provides for 310 BROOKLYN LAW REVIEW [Vol. 37:277 Moreover, three other states that have abolished capital punishment retain in their constitutions the right to deny bail either by reference to life imprisonment190 as a ground for pretrial detention, or by naming offenses such as murder and treason in lieu of the former references to capital offenses.191 Thus, bail may still be denied in many states for offenses that were formerly capital,102 even after the death penalty is abolished. This gives rise to the suspicion that denial of bail in capital cases has a relation to dangerousness as well as to the likelihood of flight. Furthermore, it is clear that the concept of a peace bond, where danger to the community can be considered, existed as far back as 1361.193 The nonbailable offenses listed in the Statute of Westminster of 1275, the first bail statute, included most violent crimes.194 One can thus argue that the first bail statute in AngloAmerican history could well have been used for pretrial detention to protect society.19 In sum, persuasive evidence exists that danger to the community is an historical basis for the denial of bail, and this fact has been forgotten because of the basic federal statutory grant of the right to bail. If, however, it is correct to view the Constitution as permitting Congress to deny bail in certain cases, so long as the action is reasonable and not arbitrary, then it follows that bail in all cases except capital cases. Towa Const. art. I § 12. Thus, the statute denying bail in a kidnapping for ransom case, when that offense is noncapital, conceivably could violate the state's constitution. There is no Iowa case in point. See also In re Perry, 19 Wis. 676 (1865) a case which held that abolition of capital punishment in Wisconsin rendered formerly capital offenses bailable under the state's constitution; State v. Pett, 253 Minn. 429, 92 N.W.2d 205 (1958). 190 Rhode Island Const. art. I § 9. 191 Michigan Const. art. I § 15 (1965); Oregon Const. art. I § 14. West Virginia achieves the same result by statute. W. Va. Code § 62-1e-1 (1966). 192 In addition to those states which have at least partially abolished capital punishment, bail may be denied in New York, by statute, in the court's discretion, supra note 29. In a problem similar to that posed for Iowa, supra note 189, the North Dakota constitution permits bail in all but capital cases, N. Dak. Const. art. 1 § 6, but by statute bail may be denied in cases of murder in the first degree. N. Dak. Cen. tury Code Ann, ch. 29-08 § 04 (1960). Including Wisconsin, supra note 189, in only five of the thirteen states where capital punishment has been abolished is there no constitutional or statutory means to deny bail for formerly capital offenses. Alaska Const. art. 1 § 11; Minnesota Const. art. I § 7; Minn. Stat. Ann. § 629.52 (1947); Vermont Const. ch. II § 32. In Hawaii the state constitution permits the court to release defendants without bail in all cases except those in which the punishment is life imprisonment. In those cases, apparently, a bail sum must be set. Hawaii Const. art. 1 § 9. 193 The Justices of the Peace Act, 34 Edw. 3 e. 1 (1361). See also New York Judicial Council Report, supra note 169, at 142. The peace bond concept, although rarely utilized, still exists under federal law. 18 U.S.C. § 3043 (Supp. IV, 1969). 194 3 Edw. 1, c. 12 (1275). For a list of the offenses made nonbailable by the statute of Westminster, see New York Judicial Council Report, supra note 169, at 141. 195 Id. at 142. 89-649 0-82-53 1971] BAIL REFORM 311 Congress can also adopt reasons unknown or unused in colonial times. Even if danger to the community was not a recognized release test in 1789, there would be no reason why Congress could not adopt it as a permissible test at a later date. This is precisely what Congress did in regard to capital cases under the Bail Reform Act in 1966.196 Another approach to determining the meaning of the eighth amendment is to examine the judicial interpretations it has received. The two most significant Supreme Court cases concerning the bail provisions of the eighth amendment are Stack v. Boyle and Carlson v. Landon, 198 decided the same term. In Stack v. Boyle, the petitioners were arrested for violation of the Smith Act 199 and were held on $50,000 bond each. On their motion to reduce bond, the issue before the Court was the question of excessiveness and not the issue of the right to bail. As a result, the comments made by the Court on that latter issue were essentially dicta. Nevertheless, because the opponents of pretrial detention so often cite the case, it is necessary to examine that dicta. The key statement from the majority opinion is: From the passage of the Judiciary Act of 1789... to the present Federal Rules of Criminal Procedure . . . federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. ... Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.200 At first glance, this statement seems to suggest constitutional difficulties for any pretrial detention statute. However, closer analysis reveals that the Court was talking not of the Constitution, but was referring solely to federal statutory law. The references to trial preparation and the presumption of innocence are really statements as to the policy reasons behind the development of the purely statutory right. Not only was Stack a case dealing with excessive bail, and its oft-quoted statement dicta, but the Court was not even talking about a constitutional right to bail. Carlson v. Landon, argued just a few weeks after Stack was decided, concerned the power of the Attorney General to hold without bail, in his discretion, alien members of the Communist 196 See 18 U.S.C. § 3148 (Supp. IV, 1969). 197 342 U.S. 1 (1951). 198 342 U.S. 524 (1952). 199 18 U.S.C. § 2385 (1964). 200 Supra note 197, at 4. Stack 312 BROOKLYN LAW REVIEW [Vol. 37:277 The bail clause was lifted with slight changes from the English Although Carlson was not a pretrial criminal case, it did dis- 203 The meaning of the eighth amendment can also be seen from 201 Internal Security Act of 1950, Sept. 23, 1950, § 22, added by ch. 1024, 64 Stat. 202 Supra note 198, at 545-46. 203 Bloss v. Michigan, 421 F.2d 903 (6th Cir. 1970) (dictum, bail pending 204 Excessive bail shall not be required." N.Y. Const. art. 1 § 5. |