The Present Crisis in American Bail
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THE YALE LAW JOURNAL FORUM
APRIL 22, 2019
The Present Crisis in American Bail
Kellen Funk
A B S T RA C T. More than fifty years after a predicted coming federal courts crisis in bail, district
courts have begun granting major systemic injunctions against money bail systems. This Essay
surveys the constitutional theories and circuit splits that are forming through these litigations. The
major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitu-
tional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) post-
conviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable
cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of
these precedents while also taking account of the troubled history of American bail, particularly
during the Reconstruction Era from which the right to sue state officials in federal court for viola-
tions of constitutional rights emerged.
INTRODUCTION
In 1965, the civil rights advocate Caleb Foote foretold a coming constitu-
tional crisis in bail.1 Foote was an extraordinary law professor whose research
stemmed from the multiple prison terms he served for conscientiously objecting
to the draft . To Foote, an opponent of Japanese internment in the 1940s and of
wealth-based detention in the 196os, the crisis in bail seemed clearly imminent.
Given the Supreme Court's recent solicitude for defendants' Fourth and Sixth
Amendment rights,3 Foote was sure that American bail regimes were about to
1. Caleb Foote, The Coming Constitutional Crisis in Bail: I, 113 U. PA. L. REv. 959 (1965).
2. Douglas Martin, Caleb Foote, Law Professor and Pacifist Organizer, Dies, N.Y. TIMES (Apr. 3,
20o6), https://www.nytimes.com/2oo6/o4/o3/us/o3foote.html [https://perma.cc/9JQ9
-QCYW].
3. E.g., Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that the Sixth Amendment requires
states to appoint attorneys to represent indigent defendants); Mapp v. Ohio, 367 U.S. 643
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The Present Crisis in American Bail
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