Abstract

The Bail Reform Act of 1966 became effective on September 22, 1966. It brought with it a long-needed change in this country's attitude towards bail and is part of the searching reappraisal of the assumptions upon which the concept of bail has so long relied. A reason often advanced for allowing bail is that an individual, under our theory of justice, is presumed innocent until proven guilty. Reducing this postulate to its logical conclusion, an accused should have an absolute right to bail pending trial irrespective of the nature of the crime for which he is charged. In most jurisdictions, however, bail may be denied in capital cases. Moreover, the presumption is usually viewed as a procedural device which comes into operation only at the trial. The "presumption of innocence," therefore, is not really the focal point when deciding whether an individual has a right to bail. Rather, the fundamental concepts upon which the right to bail is based are the eighth amendment's prohibition against excessive bail and the fifth and fourteenth amendments' guarantee of due process of law. Hence, any approach which denies an individual the right to remain at liberty through an act of financial discrimination, through predisposed feelings towards a particular type of offender, or through an improper classification procedure, could violate his constitutional rights. Arguments relating to the individual's need to be free to effectively prepare his defense or to protect his community standing (e.g., his job and family life) in the event he is found innocent also are predicated upon the Constitution. These considerations, taken together, constitute one side of any inquiry into the area.

The other side of the coin is society's need to assure the appearance of the accused at trial and the need to protect its members from the potentially dangerous defendant. Although it is commonly stated that society's only interest in setting bail is the former, it is imperative that one realize that in a significant number of bail proceedings, the judicial officer is primarily concerned about a given individual's danger to the community if released, and only secondarily concerned about the probability of his flight to avoid prosecution.

Working from the assumption that danger to the community is a prime consideration, the thrust of this article is not so much whether the Bail Reform Act, as written, is a cohesive whole, or simply a humane advance from prior procedures; rather, the emphasis is on the practical enforceability of the Act in light of the conflicting interests of both society and the individual, and the Act's relationship to the existing system of administration of justice. The article will analyze how and why the Act came into being, the Act itself, some of the problems experienced in its operation, and its effectiveness as both a positive and negative force in the bail area. Included is an analysis of the standards used for granting or denying bail pending trial and a discussion of whether such standards are logically consistent. The article will conclude by setting forth some recommendations for reaching an acceptable equilibrium, both theoretically and practically.

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