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34 Syracuse L. Rev. 517 (1983)
Seeing through the Emperor's New Clothes: Rediscovery of Basic Principles in the Administration of Bail

handle is hein.journals/syrlr34 and id is 537 raw text is: SEEING THROUGH THE EMPEROR'S NEW
June Carbone*
Traditionally, bail1 has been set in accordance with the seri-
ousness of the offense, the weight of the evidence, and the charac-
ter of the accused. Whether the purpose of bail was to deter flight,
protect the community, or both, the criteria determining the avail-
ability and amount of bail remained the same. From the Statute of
Westminster of 12752 to modern preventive detention legislation,3
pretrial restrictions have wried with the severity of the proposed
penalty, the probability of conviction, and the defendant's rec-
ord-the factors predicting the outcome of the trial.
The relationship between pretrial restrictions and post-trial
penalties has created a dilemma for the bail process. To acknowl-
edge the relationship between the bail process and trial outcome is
to risk prejudicing the trial; to deny the relationship is to ignore
the primary concerns of the public and the judiciary. For centuries,
bail commentators avoided the dilemma by coupling an insistence
that the only purpose of bail was to deter flight with a definition of
flight risk that mirrored trial outcome. By assuming that those fac-
ing the harshest penalties were the most likely to flee, judges could
give the appearance of preserving the presumption of inno-
cence,,4 while accommodating community concerns that pretrial
restrictions be proportionate to the offense and that those defen-
dants posing the greatest danger to the community be among the
least likely to be released.5
* Trial Attorney, Civil Division, U.S. Department of Justice; J.D., Yale Law School,
1978; A.B., Princeton University, 1975. The views expressed in this article are those of the
author and do not necessarily reflect the position of the Department of Justice.
1. Bail is used broadly in this article to refer to the conditions of pretrial release.
2. 3 Edw., ch. 15. See generally infra notes 20-57 and accompanying text.
3. See generally infra notes 191-212 and accompanying text.
4. See infra note 254.
5. Those most likely to be considered dangerous were, after all, those most likely to be

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