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75 Stan. L. Rev. 469 (2023)
The Constitutional Case for Clear and Convincing Evidence in Bail Hearings

handle is hein.journals/stflr75 and id is 465 raw text is: NOTE The Constitutional Case for Clear and Convincing Evidence in Bail Hearings Marty Berger' Abstract. Since 1987, the U.S. Supreme Court has emphasized that pretrial detention is the narrow exception to the general rule of pretrial release. The Bail Reform Act of 1984 (BRA) enshrines the presumption of release in federal law, permitting pretrial detention in two circumstances. First, a court may deny bail to anyone whose pretrial liberty would purportedly endanger the public. Second, a court can detain anyone who is not reasonably likely to appear in their proceedings as required. Although the BRA requires the government to prove dangerousness by clear and convincing evidence, it does not specify which evidentiary standard governs non-appearance risk. Federal courts have interpreted the BRA's silence as authorizing proof by a lower preponderance of the evidence standard. Consequently, thousands of accused individuals face pretrial detention annually based on the same standard of proof that applies in negligence cases. This Note argues that the government is constitutionally obligated to prove the basis for pretrial detention by clear and convincing evidence, including for non-appearance risk. Most of the lower court decisions endorsing the preponderance standard came before the Supreme Court issued its landmark opinion in United States v. Salerno, which upheld the BRA against a constitutional attack. The Court's reasoning in Salerno suggested, though did not explicitly conclude, that clear and convincing evidence was necessary for a pretrial detention scheme to satisfy due process. To the extent Salerno left any ambiguity over the proper standard of proof in bail hearings, this Note looks to the Court's jurisprudence of fundamental liberties to fill it. Salerno invoked a long line of cases that, most famously in Addington v. Texas, have deemed clear and convincing evidence to be the minimal constitutionally permissible standard in government-initiated proceedings that place a fundamental liberty in jeopardy. This Note traces the Addington rationale's history and theoretical foundation, illustrating why bail hearings fall within its scope. The safeguards surrounding detention orders have received scant scholarly attention, in large part because so much academic commentary has centered on cash bail. As cash bail * J.D. Candidate, Stanford Law School, 2023. With deepest thanks to David Alan Sklansky for his mentorship, encouragement, and unparalleled dedication to his students, and Alec Karakatsanis for his guidance in arriving at the research question that drives this Note. I am also grateful to the Stanford Law Review-especially Audrey Spensley, John Priddy, Maya Frost-Belansky, Spencer Furey, Max Kennedy, Will Moss, Isaac Shapiro, and Madison Villarreal-for tremendous editorial support. 469

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