Pretrial Detention, Bail and Due Process

By Ken Strutin, Published on July 2, 2011

Pretrial detention of suspects directly impacts the presumption of innocence. The cornerstone of the justice system is that no one will be punished without the benefit of due process. Incarceration before trial, when the outcome of the case is yet to be determined, cuts against this principle. The Founders were aware of the dangers inherent in indiscriminate imprisonment, which is one of the main reasons behind the inclusion of the Eighth Amendment in the Bill of Rights, prohibiting excessive bail. Historically, the laws limiting pretrial detention were enacted to change the focus from personal to penal purposes, thus remedying the abuses of earlier English monarchs who used jail before trial as a form of punishment.1

The need for bail is to assure that the accused will appear for trial and not corrupt the legal process by absconding.2 Anything more is excessive and punitive.3 The risks of abuse at this stage when the court takes its first look at an accused's culpability must be scrutinized to avoid coercion or pre-punishment in the administration of justice.4 Scholars have pointed out the potential constitutional problems raised by federal and state laws that restrict access to bail or include criteria such as future dangerousness. And they have also tried to divine the Supreme Court's position on the existence of a substantive constitutional right to bail that would trump restrictive legislative enactments.

This article collects recent publications and other notable resources concerning the relationship between the administration of bail and the requirements of due process.


BAIL REFORM ACT OF 1984 (18 U.S.C. SS 3141–3156)







1 Interestingly, today the debate about pretrial detention practices is motivated by proposals to shrink jail and detention facility budgets. See Shima Baradaran, Want to Cut Costs? Release More Prisoners, PrawfsBlawg, Feb. 25, 2011.

2 See generally Ken Strutin, Preparing Bail Applications, Prac. Litig., Sept. 1995, at 85; Ken Strutin, Habeas Corpus as Tool to Review Bail Decisions, N.Y. L.J., Nov. 15, 1995, at 1; Ken Strutin, Restraints on Liberty Before Trial, N.Y. L.J., Apr. 24, 1995, at 1

3 See United States v. Marion, 404 U.S. 307, 320 (1971)("Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and friends.")

4 See, e.g., New York State Pretrial Release Services Standards (NY DPCA 2007)(Important Principles: "2. Defendants are entitled to a presumption of innocence. Therefore, defendants should not be precluded from pretrial screening based on the current charge. However, for purposes of assessing flight risk, the instant charge may be an appropriate consideration as to the release recommendation. 3. New York State law does not authorize the imposition of conditions of release or preventive detention on the basis of future predictions of dangerousness. Therefore, pretrial release programs should provide assessments and recommendations to the courts based on the defendant's likelihood to appear in court.").

5 All footnotes have been omitted from excerpts and abstracts.

6 See Ill. Const. Art. I, sect. 9. See also Ann Lousin, The Illinois State Constitution: A Reference Guide 55-56 (2010).