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Restoring the Presumption of Innocence
SHiMA BARADARAN*
The most commonly repeated adage in U.S. criminaljustice is the presumption
of innocence: defendants are deemed innocent until proven guilty. Historically,
this presumption carried important meaning both before and during trial.
However, in light of state andfederal changes in pretrialpractice,as well as
Supreme Courtprecedent restrictingthe presumption'sapplication to trial,the
presumption of innocence no longer protects defendants before trial. These
limitations on the presumption are fundamentally inconsistent with its
constitutional roots. The results of the presumption's diminution are also
troubling as the number of defendants held pretrialhas steadily increasedsuch
that the majority ofpeople in our nation'sjails have not been convicted of any
crime. Few contemporary legal scholars have focused on the dwindling
pretrialpresumption, let alone its constitutionalimplications. This Article fills
the void by examining, historically, how the Due Process Clause provides the
constitutional basis for the presumption of innocence and how that
presumption secures at least one pretrial right: the right to release on bail,
absent serious flight risk. This Article introduces three principles to ensure
that the pretrial presumption of innocence remains true to its constitutional
roots. Returning the presumption to its constitutionalfoundation and ensuring
its application in ways that are consistent with that foundation will result in
less confusion in the courts and a more consistent approach to pretrial
decisions.
TABLE OF CONTENTS
I. INTRODUCTION .............................................................................. 724
II. HISTORICAL UNDERSTANDING OF THE PRESUMPTION OF INNOCENCE... 727
A. Bail Was Presumedfor NoncapitalCases and Guilt Was Not
D etermined Pretrial ................................................................ 728
B. Purpose of Bail Was Return to Court, Not Preventing
A dditional Crimes ................................................................... 731
C. Accused Individuals Were Not Incarceratedor Punished ...... 734
D. Due Process Focused on Proving Legal Guilt at Trial .......... 736
III. CHANGES TO THE PRESUMPTION OF INNOCENCE AND DUE PROCESS... 738
A. 1966 Act Allows Weighing of Evidence .................................. 739
* Associate Professor of Law, Brigham Young University Law School. I would like to
thank Fred Gedicks, Jim Rasband, Brooke Boyer, Kif Augustine-Adams, Kimberly Hoist,
Lisa Sun, Dan Markel, Collin Miller, Max Minzner, David Moore, Meghan Ryan, Sandra
Guerra Thompson, Brett Scharffs, Gordon Smith, Carolina Nunez, and Mehrsa Baradaran
for helpful comments on earlier drafts. I would also like to thank the participants of the
AALS JRCS Forum, Arizona State University Workshop, and the Annual Law and Society
Conference for their helpful feedback. I would like to thank Tyler Albrechtsen, Samantha
Hunter, Tyler LaMarr, Julie Slater, Rebecca Skabelund, and Bryan Stoddard for their
excellent research assistance.
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B. 1984 Act Restricts PretrialLiberty Basedon Community Safety... 746 C. New Bail StandardsAllow PretrialDecisionsAbout Guilt.... 752 lV. DUE PROCESS CHANGES LIMIT PRETRIAL RIGHTS ......................... 754 A. Divorce of Due Process and the Presumptionof Innocence .... 755 B. Improper UnderstandingofDue Process Allows for Violations.. 758
1. Weighing of Evidence Pretrial .......................................... 760 2. Interference with CriminalProcess .................................. 762 3. PredictingDanger to the Community ............................... 763 V. PRINCIPLES OF PRETRIAL DUE PROCESS ........................................ 766 A. PretrialRestraints ofLiberty .................................................. 768 B. Pretrial Weighing ofEvidence and Predicting Crime ............ 770 C. PretrialFocus on Legal Innocence ........................................^772 V I. C ONCLU SION .................................................................................. 776
I. INTRODUCTION
The presumption of innocence is one of the most familiar maxims in criminal law.' Historically, the presumption protected defendants from the time of charge to trial. 2 Grounded in the Due Process Clause, the presumption prohibited judges from predicting whether defendants were guilty. Preventing
judges from deciding defendants' guilt pretrial ensured that defendants would
remain at liberty before trial. At trial, the presumption solely applied to require prosecutors to prove guilt beyond^ a^ reasonable doubt.
3
Despite the historical import of the presumption of innocence, changes in federal and state statutes have increased the opportunity for judges to predict
I Coffin v. United States, 156 U.S. 432, 453 (1895); see also 1 CORPUS IURIS CIVILIS
§ 22.2.3, at 325 (Theodorus Mommsen et al. eds., 16th ed. 1954) [hereinafter CORPuS] ("The burden of proof rests on who asserts, not on who denies."); James Bradley Thayer, The Presumption of Innocence in Criminal Cases, 6 YALE L.J. 185, 188-89 (1897). 2 4 WILLIAM BLACKSTONE, COMMENTARIES (^) ON THE LAWS OF ENGLAND (^) *300 ("Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice ... ; there to abide till delivered by due course of law. But this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity: and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only[.]" (citations omitted)); 5 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2511, at 504 (2d ed. 1923) (the presumption of innocence "hovers over the prisoner as a guardian angel" from the moment of indictment until the verdict is determined); see, e.g., People v. Riley, 33 N.E.2d 872, 875 (I11. 1941) ("Any person indicted stands before the bar of justice clothed with a presumption of innocence and, as such, is tenderly regarded by the law. Every safeguard is thrown about him. The requirements of proof are many, and all moral, together with many technical, rules stand between him and any possible 3 punishment."). In re Winship, (^397) U.S. 358, 361-63 (^) (1970).
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of innocence, no articles have both analyzed the effects of this loss and
explained without reliance on normative arguments why we should reclaim it.^11 This Article attempts to contribute to this scholarship by examining how the Due Process Clause is the constitutional basis for the presumption (^) of innocence
and how that presumption secures the right against pretrial detention, absent
serious flight risk. 1 2 After conducting a historical analysis of the Due Process
Clause and the presumption of innocence, this Article provides some thoughts on how the original meaning of the presumption of innocence should apply in the modem world. This Article puts (^) forth three principles by which the
presumption (^) of innocence and due process can apply consistently, while
precluding improper judicial predictions of guilt. This Article proceeds in four stages. Part II of this Article traces the history
of the presumption of innocence and its constitutional basis, beginning at ancient texts and continuing through to the common law and finally U.S. cases,
with a focus on pretrial rights and bail. This section also traces the common law
history of the Due Process Clause and the presumption of innocence and demonstrates that pretrial liberty was preserved because bail was presumed for
noncapital cases. Bail determinations served the purpose of ensuring that the
defendant appeared at trial, not preventing additional crimes from being committed. And there were no decisions about guilt before trial as legal guilt was properly determined at trial. Part III also analyzes the history of the changes to bail in federal and state courts, from the 1960s to 1980s, which removed the presumption of bail in most cases, led to pretrial weighing of evidence and expanded the number of legitimate reasons to detain the accused.
Part IV discusses the changes in interpretation of the Due Process Clause and
the impacts of these changes on the pretrial presumption of innocence by considering the state murder exception in bail cases as an example. Part V introduces, for the first time, three constitutionally rooted principles to guide the application of the presumption of innocence pretrial. Because there has been a lack of consistent principles to apply the presumption of innocence, it has
Constitutional Right to Bail, 41 ARK. L. REv. 697, 701 (1988) (noting briefly that the Due Process Clause and the presumption of innocence are linked in that they both require proof beyond a reasonable doubt to deprive someone of her individual liberty). 11 Compare Frangois Quintard-Mordnas, The Presumption of Innocence in the French and Anglo-American Legal Traditions, 58 AM. J. CoMP. L. 107, 126 (2010), with Patrick G. Jackson, The Impact of PretrialPreventive Detention, 12 JUST. SYs. J. 305, 332 (1987). But see Ronald J. Allen & Larry Laudan, Deadly Dilemmas III: Some Kind Words for Preventive Detention, 101 J. CRAM. L. & CRIMINOLOGY 781, 782-83 (2011) (arguing that preventive detention does not necessarily require indefinite detention or denial of the right to notice upon arrest nor the possibility of incarceration for a significant amount of time without due process). 12Te other constitutional (^) basis is the Sixth Amendment. The (^) historical development of the Sixth Amendment and its ties to the presumption of innocence will be discussed in a follow-up article. For an interesting argument that the Equal Protection Clause should be the basis for criminal rights since due process has run its course, see Jeremy (^) M. Miller, The Potentialfor an Equal ProtectionRevolution, 25 QUINNIPIAC L. REV. 287, 289 (2006).
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diminished in meaning and been inconsistently applied by courts. This section discusses three principles with which to apply the presumption of innocence pretrial. First, pretrial restraints of liberty should be limited to where there is a proper basis. The proper basis for restricting a person's liberty includes ensuring a person's attendance at trial, protecting the judicial process from interference by defendant, and if defendant is detained, protecting the security of the facility. Second, the pretrial focus should not be on guilt-determination and punishment as the Due Process Clause requires a conviction^ of^ guilt by^ a jury in order to punish an individual. Third, the focus of pretrial protections for defendants should not be on obtaining the truth of a person's guilt or innocence, but should protect defendants' liberty until innocence or guilt can be proven at trial. Respecting these rights will honor the original influence of the Due Process Clause on bail rights-tempered by modem realities-and has the potential of creating a disciplined change in focus in pretrial practice.
II. HISTORICAL UNDERSTANDING OF THE PRESUMPTION (^) OF INNOCENCE
In the early days of common law development, imprisonment was scarcely judicial and was often used arbitrarily by the English monarchs. 13 However,
"[o]ne of the most celebrated clauses of [the] Magna Carta was that which guaranteed the king's subject immunity from imprisonment, or other punishment, save through the due process of the law."' 14 In the centuries following the Magna Carta, due process and the presumption of innocence gained substance at common (^) law; and, subsequent abuses by the monarch eventually led Parliament to take action to reinforce these common law principles. 15 These common law principles crossed the Atlantic with the colonists. 16 Historically, in the United States, the presumption of innocence and due process required a legal determination at trial to punish a defendant for a crime. 7 Due process demanded that a person maintain liberty and (^) not be
13 ROBERT BARTLETr, ENGLAND UNDER THE NORMAN AND ANGEVIN (^) KINGS: 1075- 1225, at 186 (2000). For example, Henry kept his brother Robert and the rebel, Robert de Belleme, in captivity until their death "out of prudence rather than after judgment." Id. 14ALAN LLOYD, (^) KING JOHN (^302) (1973). 15 Early in the seventeenth (^) century, Parliament engaged (^) in heated debate about the "fundamental laws and liberties of the Kingdom" when Charles I arbitrarily imprisoned five of his knights. See Sarah Willms, The Five Knights' Case and Debates in the Parliamentof 1628: Division and Suspicion Under King Charles 1, 7 CONSTRUCTING THE PAST 92, 93 (2006), available at http://digitalcommons.iwu.edu/cgi/viewcontent.cgi?article=1082& context=-constructing. Parliament eventually passed the Habeus Corpus Act of 1679; however, "[i]t should be noticed that the law did not grant anything new; that it did not make habeas corpus, but merely made efficient a writ, which was (^) recognized as already existing." A.H. 16 Carpenter, Habeas Corpus in the Colonies, 8 AM. HIST. REv. 18, 19 (1902). Carpenter, supra (^) note 15, at 18-19. (^17) Wilkerson v. Commonwealth, (^76) S.W. 359, 361 (Ky. 1903) (holding that punishment
without evidence of guilt should not occur and in this case the court should have instructed the jury to find the defendant not guilty). The concept of the presumption of innocence is not
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generally presumed for all accused due largely to the presumption of innocence. 2 1^ English bail law presumed that defendants would^ be^ released^ and discussed the "bail decision" as^ though^ it^ were^ a^ decision^ of^ how^ to^ release^ the defendant, not if he would be released. To deny bail to a person who^ is^ later determined to be innocent was thought to be^ far^ worse than the^ smaller^ risk posed to^ the^ public^ by^ releasing^ the^ accused.^22 Some^ ancient^ English^ law banned pretrial detention in all criminal cases, even murder, due to the presumption of innocence. 23 However, by 1275 and for the next 500 years, there was an exception in bail law prohibiting bail in murder cases,^24 though^ those accused of^ murder^ were^ often^ released^ anyway.^
2 5
In the first federal statement on bail, the Judiciary Act guaranteed bail for all noncapital offenses. The 1789 Judiciary Act held that all noncapital crimes should be bailable, though capital crimes were^ bailable^ at^ the discretion^ of^ the judge who "exercise[d] their discretion therein, regarding the nature and
circumstances of the offence,^ and^ of^ the^ evidence,^ and^ the^ usages^ of^ law."^
26
21 State v. Mairs, 1 N.J.L. 335, 336 (1795) (explaining that "before trial ... prisoners are to^ be^ presumed^ innocent^ of^ the^ crime^ laid^ to^ their^ charge,^ [and]^ ...the^ court^ ought^ to admit them to bail"); see Shore v. State, 6 Mo. 640, 641 (1840) ("By the Constitution of this State, every offense is bailable, except capital offenses where the proof is evident or the presumption great."); Ex parte Tayloe, 5 Cow. 39 (N.Y. Sup. Ct. 1825) (holding that bail is only proper where it stands indifferent whether the party be guilty or innocent of the accusation against him, as it often does before his trial and in this country "a prisoner is, primafacie, entitled to bail"); see also Dickinson v,Kingsbury, 2 Day 1, 11 (Conn. 1805) ("The personal liberty of the subject is to be favored, as far as is practicable and safe, until conviction. Bail for his appearance at the Court, in which his guilt or innocence is to be tried, is, at once, the mode of favoring that liberty, and securing the appearance for trial."); State v. Connor, 2 S.C.L. (2 Bay) 34, 35 (1796) (decision relying on the pretrial presumption of innocence).2 2 THOMAS WONTNER, OLD (^) BAILEY EXPERIENCE: CRIMINAL (^) JURISPRUDENCE AND THE ACTUAL 23 WORKING OF OUR PENAL CODE OF LAwS 263 (London, James Fraser 1833). Id. (^24) Statute of Westminster I, 1275, (^3) Edw. 1, c. 15 (Eng.); 4 BLACKSTONE, supra note 2, at *298 ("By the ancient common law, before and since the conquest, all felonies were bailable, till murder was excepted by statute ...."); ELSA DE HAAS, ANTIQUITIES OF BAIL: ORIGIN AND^ HISTORICAL DEVELOPMENT^ IN^ CRIMINAL^ CASES^ TO^ THE^ YEAR^ 1275,^ at^ 59 (1940) (explaining that bail was not extended to homicide cases); see also 1 JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 234 (London, MacMillan & Co.
- (noting that the Statute of Westminster constituted the law on bail for 550 years in England). 25 4 W. S. HOLDSWORTH, (^) A HISTORY OF ENGLISH (^) LAw 527 (1924). (^26) Judiciary Act of 1789, (^) ch. 20, § 33, 1 Stat. 73, 91. Though I do not challenge the constitutionality of the Judiciary Act, since it simply implemented the English common law approach to bail, one originalist argument that^ may^ be^ posed^ is^ that^ the^ Judiciary Act was passed by the First Congress, of which^ many^ members^ were^ involved^ in^ the^ Constitution's drafting and passage, suggesting that this approach is^ constitutional.^ However,^ the^ response to this would be Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803), which overturned a part of the Judiciary Act. Additionally, the Judiciary Act arguably opened the way for evaluating the circumstances of the offense charged and the weight of the evidence against
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In the early nineteenth century, U.S. state and federal courts unanimously
agreed that the Constitution entitled the accused to pretrial release except when
the crime charged was a capital offense. 27 During the nineteenth century, there was also discussion of how denying bail violated the presumption of innocence.
Bail was presumed in most cases. 2 8^ In capital cases, courts reserved discretion
to determine whether the accused should receive bail. 2 9^ The rationale was that
in capital cases the death penalty may be imposed and a defendant would have a
serious incentive to flee before trial. For instance, a London treatise stated that a defendant could not be held without bail since "every man shall be presumed
innocent of an offence till he be found guilty. ' 3^0 And in some criminal actions
the defendant in making discretionary bail decisions, at least with capital offenses. As discussed in the second part of this section, early state case law takes a similar approach to that of the Judiciary Act. 27 Note though that during (^) this time a larger number of felonies were considered capital
offenses. See THE OXFORD COMPANION TO AMERICAN LAW 305 (Kermit L. Hall et al. eds.,
- (noting that many common law felonies were capital offenses but defendant could avoid 28 the death penalty by pleading "benefit of clergy"). Hudson v. Parker, (^156) U.S. 277, 285 (1895) ("The statutes of (^) the United States have
been framed upon the theory that a person accused of crime shall not, until he has been finally adjudged guilty in the court of last resort, be absolutely compelled to undergo imprisonment or punishment, but may be admitted to bail, not only after arrest and before trial, but after conviction and pending a writ of error."); United States v. Barber, 140 U.S. 164, 167 (1891) ("But in criminal cases it is for the interest of the public as well as the accused that the latter should not be detained in custody prior to his trial ....Presumptively they are innocent of the crime charged, and entitled to their constitutional privilege of being admitted to bail.... ."); People v. Tinder, 19 Cal. 539, 542 (1862) ("In^ all^ other cases, [except for capital cases] the admission to bail is a right which the accused can claim, and which no Judge or Court can properly refuse."); People v. Van Home, 8 Barb. 158, 167 (N.Y. Gen. Term 1850) ("Until his guilt is legally ascertained, there is no ground for punishment, 29 and it would be cruel and unjust to inflict it." (citation omitted)). See (^) Hight v. United States, 1 Morris 407, 409 (Iowa 1845) ("The ordinance of 1787 ... declares that 'all persons[] [sh]all be bailable, unless for capital offenses where the proof shall be evident or the presumption great.'... This is no new provision, but is in express terms incorporated into the constitutions of at least one-half of the States of the Union, and is the rule of action in all the rest."); see also Street v. State, 43 Miss. 1, 10, 24- 25 (1870) ("But in the United States the accused has a constitutional right to bail in all 'except in capital cases' (^) ... Under the [B]ill of [R]ights, (^) bail before conviction is (^) a matter of right (and not of discretion) for all offenses, except those that are capital.... ." (emphasis added)); Ex parte Bryant, 34 Ala. 270, 271 (1859) (holding that bail is a right for all noncapital cases and stating that if the defendant rebuts the evidence of the indictment in a noncapital case he can be bailed); Exparte Wray, 30 Miss. 673, 674 (1856) ("The provision of the constitution is as follows: 'That all prisoners shall, before conviction, be bailable by sufficient securities, except for capital offenses, where the proof is evident or the presumption great."'); State v. Summons, 19 Ohio 139, 140 (1850) ("The constitution of Ohio, in article 8, section 12, provides, 'That all persons shall be bailable by sufficient sureties3 0 unless for capitaloffenses, where the proof is evident, or the presumption great."'). JOSEPH CHITTY, A TREATISE ON THE GAME LAWS, AND ON FISHERIES 188 (London, W. Clarke & Sons 1812).
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English judges set bail with only one purpose: to ensure the defendant's
appearance in court. 3 8^ Early state courts very rarely weighed the evidence
against the defendant openly pretrial, mentioned concerns for safety of the community, or considered dangerousness (^) of the defendant-even to dismiss
them as^ improper^ justifications for^ denying^ bail.^
39
flight of the defendant and for no other purpose. It is the same in England."); see also Hunt v. Roth, 648 F.2d 1148, 1163 (8th Cir. 1981) ("The federal courts have traditionally held... [that] the only relevant factor is the likelihood that the defendant will appear for trial."); Ex parte Verden, 237 S.W. 734, 737 (Mo. 1922) ("Confinement in jail prior to trial is not authorized because defendant may eventually be convicted of the charge by a jury, or as any part of his punishment, if guilty, but to assure his presence when the case is called for trial and during the progress thereof. The only theory on which bail can be denied in any capital case is that the proof is so strong as to indicate the probability that defendant will flee if he has the opportunity, rather than face the verdict of a jury." (emphasis added)); People v. Van Home, 8 Barb. 158, 167 (N.Y. Gen. Term 1850) ("For as I have already stated, the object of imprisonment before trial is not the punishment of the delinquent, but merely to secure his appearance in court when his trial is (^) to be had."); Hampton v. State, 42 Ohio St. 401, 404 (1884) ("The object of bail is to secure the appearance of the one arrested when his personal presence is needed; and, consistently with this, to allow to the accused proper freedom and opportunity to prepare his defense. The punishment should be after the sentence."). 38 CCHARLES (^) W. BACON ET AL., THE AMERICAN (^) PLAN OF GOVERNMENT (^282) (1916)
("Magistrates now fix bail with the one idea of making sure of the prisoner's appearance in court when wanted."); see 2 BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND 299 (George E. Woodbine ed., Samuel E. Thorne trans., Harv. Univ. Press 1968) (1872). Under the original purpose of bail, someone charged with a more serious crime who had no money, ties outside of the jurisdiction, or even a passport would likely receive bail, while a person who had cash and no community ties, but was charged with a lesser crime, may not be granted a lower bail amount. See, e.g., Ackies v. Purdy, 322 F. Supp. 38, 42 (S.D. Fla. 1970). 39 Some courts considered additional factors for "flight risk" that went beyond what was traditionally allowed, including the nature of the crime and weight of evidence against the defendant. A 1912 California court noted that "[t]here might be instances under this statute where, for the safety of the individual or of society, it would be proper to deny bail." In re Henley, 121 P. 933, 935 (Cal. Dist. Ct. App. 1912). And in 1930, a New York court considered the nature of the offense and weight of evidence against the defendant in determining bail. People ex rel. Rothensies v. Searles, 243 N.Y.S. 15, 17 (App. Div. 1930) (denying reduction of bail where no proof was offered to show why bail was excessive); see People ex rel. Gonzalez v. Warden, 233 N.E.2d 265, 269 (N.Y. 1967) (affirming $1000 bail in part because the defendant was accused of a "vicious crime"); People ex rel. Lobell v. McDonnell, 71 N.E.2d 423, 425 (N.Y. 1947). Indeed, the Rothensies dissent objected to this analysis, pointing out that "rumor" of a prior conviction is not a basis for a judicial decision setting bail at an excessively high amount. Rothensies, 243 N.Y.S. at 19 (Hasbrouck, J., dissenting). Dissenting, Justice Hasbrouck connected the denial of bail with due process, stating that setting a high bail based on a "foundation of [a] rumor certainly is to deprive a person accused of crime of his liberty without due process of law." Id. The dissent tied a denial of bail to the oppressive acts of English kings and stated that denial of bail is "not an act of justice, it is an act of oppression" which is forbidden. Id. (citing 1 W. & M., c. 2 (1689) (Eng.) (English Bill of Rights of 1688); U.S. CONST. amend. VIII; N.Y. CONST. art. 1, § 5).
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Before releasing a defendant, the defendant had to find a surety. The surety was a family member or friend that would ensure the (^) defendant would appear at
trial or pay a fine. Because the defendant, presumably, would not want to
punish his sureties he would not flee, and because the sureties would not want
to pay a fine, they would make sure the defendant appeared in court. 40 Sureties would lose their financial deposit only if the defendant did not appear for trial, not if the defendant committed an additional crime. The focus of a surety was only to return the defendant to court, not prevent him from committing further crimes. Bail was not denied based on justifications of public safety or dangerousness posed by these defendants, and was solely denied when the court was not^ assured^ that^ defendant^ would appear^ at^ trial.^
4 1
Under U.S. law, the^ purpose^ of^ bail^ was^ to^ ensure^ the^ appearance^ of defendant to "submit to a trial, and the judgment of the court" and not for preventing future crimes. 42 In Stack v. Boyle, the Court demonstrated that it was serious that (^) bail was only to ensure the defendant's appearance at trial, and not to prevent (^) her from committing crimes. 43 Four defendants were charged with federal violations as a result of alleged Communist activities. 44 The defendants' bail was set extremely (^) high, and the government, without introducing any specific evidence, sought to have that bail upheld on the grounds of the offenses charged. 45 The Court rejected the government's contentions, stating that bail should not be set unusually high based solely on the indictment. 4 6^ Furthermore, the Court pointed to the long history of admitting bail for noncapital crimes and, tying these rights to due process and the presumption of innocence, noted that denying a defendant bail hurts his "traditional right to freedom before conviction" in addition to the "presumption of innocence." 4 7^ Accordingly, "the
4 0 (^) See Statute of Westminster (^) I, 1275, 3 Edw. 1, c. 15 (stating that defendants should be bailed "without giving ought of their Goods"). 412 YEAR BOOKS OF THE REIGN OF KING EDWARD THE FIRST: YEARS XXI and XXII, at 56-57 (Alfred J. Horwood ed. & trans., London, Longman & Co. 1873) [hereinafter KING EDWARD] (citing a decision of the Court of Common Pleas of 1293); Quintard-Mor~nas, supra 42 note 11, at 126 n.176. Taylor v. Tainter, (^83) U.S. (16 Wall.) 366, 371-72 (1872) (observing (^) that people released on bail were (^) required to come back to court to ensure a fair trial); Exparte Milburn, 34 U.S. (9 Pet.) 704, 710 (1835) (Bail "is not designed as satisfaction for the offen[s]e, when it is forfeited and paid, but as a means of compelling the party to submit to the trial and punishment, which the law ordains for his offen[s]e."); United States v. St. Clair, 42 F.2d (^) 26, 28 (8th Cir. 1930) ("Bail is to procure release of a prisoner (^) by securing his future attendance."). 43 342 U.S. 1, (^9) (195 1). 44d (^) at 3.
45 1d.
4 6 at^ 3.
1d. at 6. 47 Id. (^) at 4 (citations omitted).
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RESTORING PRESUMPTIONOF INNOCENCE
attaching until a defendant was convicted. 53 As long as it was certain that the defendant would appear in court for her trial, she was entitled to avoid any punishment until the judgment of the court. 54 There was even a disincentive to
bring false charges, and a series of statutes enacted to interpret the Magna Carta included a provision that^ if^ false^ arrests^ were^ made,^ the^ accuser^ would^ be punished in the same way^ as^ the accused^ would^ have^ been.^
55
The maxim that a defendant was not punished before trial had significant meaning historically. For instance, a defendant was not prohibited from Communion after he was accused but^ before^ conviction,^56 and^ a^ priest^ accused of adultery continued with his duties.^57 Accused^ officials^ retained^ their^ rank until convicted, 58 showing^ how^ the presumption^ of^ innocence^ shielded^ the accused from punishment prior to an adjudication of guilt. 59 This maxim sometimes went as far as^ not allowing^ arrests^ to^ be^ made^ in^ public, because^ this would be a type of punishment before^ trial.^60 Likewise^ in^ England,^ comments^ in the media about a person's guilt were criticized when the individual had not yet been found guilty.^
6 1
Early on, the Supreme Court clearly stated that no imprisonment or punishment is allowed until trial. 62 In the 1930s, the Court established that guilty defendants "until convicted"^ were^ presumed^ innocent.^63 In^ the^ 1950s and 1960s, the Court continued to uphold due process rights, insisting that there should not be any imprisonment until after a finding of guilt. 64 Due process rights guaranteed that a defendant should not lose liberty until the government produced evidence to convince the factfinder of her guilt.^65 The Court explicitly
53 Liberty of Subject, 1354, 28 Edw. 3, c. 1 (Eng.); KING EDWARD, supra note 41, at
56-57 (citing a decision of the Court of Common Pleas of 1293); Quintard-Mordnas, supra
note 11, at 126 n.176.
541 JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF CRIMINAL PROCEDURE,
§ 262, at 158 (Boston, Little, Brown & Co. 1872).
55 RALPH V. TURNER, MAGNA CARTA: THROUGH THE AGES 123-24 (2003) (describing
statutes interpreting Chapter 29 of the Magna Carta during the reign of King Edward III in England). (^56) Quintard-Morrnas, (^) supra note 11, at 114 n.61. (^57) 1d. at (^) 114 n.62. (^58) Id. at 113 n.49; 1 CORPU, supra (^) note 1, § 50.1.17.12, at 894. 59 With serious crimes, some were detained before trial but not treated harshly, and the trial process was speedy so that the innocent could be discharged. Quintard-Morrnas, supra note 11,at 60 113. d. at 117, 126-30; see Bryan (^) v. Comstock, 220 S.W. 475 (Ark. (^) 1920) (noting that arrests in public were formerly deemed oppresive, and arrests on Sunday prohibited). 61 Quintard-Mor~nas, supra (^) note 11, at 128 (citing HENRY FIELDING, (^) THE COVENT- GARDEN JOURNAL AND A PLAN OF THE UNIVERSAL REGISTER-OFFICE 85 (Bertrand A. Goldgard ed., Clarendon Press 1988) (1752)) (denouncing press that stated that a woman poisoned 62 her father before she was found guilty). Hudson v. (^) Parker, 156 U.S. 277, (^285) (1895). 63 Powell v. Alabama, 287 U.S. 45, 52 (1932). (^64) Speiser v. Randall, 357 U.S. 513, 526 (1958). 65 Id.; see Tot (^) v. United States, 319 U.S. (^) 463, 466-67 (1943).
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connected these rights to the Magna Carta and required^ courts^ to^ not^ impose punishment "without^ due^ process^ of^ law."^
66
The Supreme Court^ affirmed^ the^ principle that^ the^ U.S.^ tradition^ is^ that^ "one charged with a crime is not, in ordinary circumstances, imprisoned until after a
judgment of guilt."' 67^ However, it also became common practice among courts to nominally recognize the pretrial presumption of innocence while^ in^ practice set bail so high that it could not be reached by the accused. 68 This practice also extended to state courts. 69 Overall, though, due to the presumption of innocence being rooted in due process^ principles,^ the^ courts^ generally waited^ until^ after trial to impose any punishment or to incarcerate the accused.
D. Due Process Focused on Proving Legal Guilt at Trial
Historically, due process rights emphasized proving guilt of defendants legally at trial and preserving innocence pretrial. In order to protect due process rights and the presumption of innocence, early on, judges insisted on^ a^ trial^ and a legal basis to convict. 70 Coffin focused on the presumption of innocence as a legal burden and specifically held that the presumption of innocence was separate and distinct from the equally fundamental principle that the prosecution bears the burden of proof beyond a reasonable doubt. 7 1^ The
(^66) Kennedy v. Mendoza-Martinez, 372 U.S. 144, 186 (1963). (^67) Bandy (^) v. United States, 81 S. Ct. 197, 197 (1960); see also United States v. Bentvena, 288 F.2d 442, 444 (2d Cir. 1961) ("Thus, until trial commences, enlargement on bail is 68 the rule, upon adequate assurance that the accused will appear at trial."). Note, Preventive Detention Before Trial, (^) 79 HARV. L. REv. 1489, 1495 (1966) (noting that "courts have said that bail in an amount greater than the^ defendant^ can^ raise^ is not necessarily excessive; the accused is entitled only to the opportunity to make bail^ in^ a reasonable amount, not to such bail as he can provide"). 69Commonwealth ex rel. Ford v. Hendrick, (^257) A.2d 657, 660-61 (Pa. Super. Ct.
- (recognizing dangerousness as^ a^ permissible basis for^ detention^ without^ bail). (^70) inMcKinley's Case, Lord Gillies discusses the presumption of innocence:
I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It^ is^ a^ maxim which^ ought to^ be inscribed in indelible characters in the heart of every judge ....To overtum this, there must be legal evidence of guilt, carrying home a degree of conviction short only of absolute certainty.
33 How. St. Tr. 275, 506 (1817); see also Coffin v. United States, 156 U.S. 432, 454 (1895). Coffin explains that the legal burden of proof^ is^ important^ because^ "'[in^ some^ cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him."' Id. at 456 (quoting 2 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 289 (Philadelphia, Robert H. Small 1847)). "This presumption on the one hand, supplemented by any other evidence he may adduce, and the evidence against him on the other, constitute the elements from which the legal conclusion of his guilt or innocence is to be drawn." Id. at 459. 71 Coffin, (^) 156 U.S. at 458-61 (emphasis added). Coffin (^) emphasizes the Blackstone ratio that it is "better five guilty persons should escape unpunished, than one innocent person
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felony should be admitted cautiously," emphasizing that evidence should be found indirectly by^ a^ jury^ rather^ than^ admitted.^
79
However, over time, the focus on the presumption of innocence became
proving legal guilt at trial, not pretrial. And the presumption of innocence
became synonymous with the prosecutor's burden to prove an individual guilty
beyond a reasonable doubt. 80 Thus, the maxim of "innocent until proven guilty" signified that jurors convict only when there was enough proof that (^) the crime
was committed. 81 It lost its greater meaning that (^) the defendant was protected
against any inferences or findings of guilt before trial. This change opened the way for judges to make legal examinations of defendants' guilt pretrial, where
previously due process principles would not have allowed this.
In order to fully understand the change in the pretrial role of the presumption of innocence in guaranteeing pretrial release without judicial
predictions, the next section provides a historical review of relevant U.S. cases
that changed these original principles.
1II. CHANGES TO THE PRESUMPTION OF INNOCENCE AND DUE PROCESS
Changes in state and federal laws between the 1960s and 1980s demonstrate a shift in the meaning (^) of due process and the presumption of innocence pretrial.
Until the 1950s, judges presumed bail for all noncapital defendants and were
only permitted to deny bail where there was a risk of flight. 82 However, from
the late 1960s on, courts considered various factors, including the weight of the evidence against an (^) individual and how her release would impact the safety of the community. 83 These changes in statutory laws attempting to "reform" bail
in 1743, where Wright tried to plead guilty to robbery to avoid trial in hopes that the death
sentence would not be imposed, the court said that it would not take note of favorable
circumstances until he agreed to trial. Id. at 9.
794 BLACKSTONE, supra note 2, at *352; see also People v. Lohman, 2 Barb. 450, 451
(N.Y. Gen. Term 1848) ("All offenders are entitled before trial, to be bailed; but an
exception has been made by statute, in cases of homicide. In all cases it rests in the
discretion of the judge. The question for him to settle is, whether bail will secure the
appearance 80 of the prisoner.").
See Taylor v. Kentucky, 436 U.S. 478, 484 (1978); see also Bell v. Wolfish, 441
U.S. 520, 533 (1979) ("The presumption of innocence is a doctrine that allocates the burden
of proof in criminal trials... [and] has no application to a determination of the rights of a
pretrial detainee during confinement before his trial has even begun.").
81 Laufer, supra note 10 at 332.
82 See, e.g., Lohman, 2 Barb. at 451 ("All offenders are entitled before trial, to be
bailed; but an exception has been made by statute, in cases of homicide. In all cases it rests
in the discretion of the judge. The question for him to settle is, whether bail will secure the
appearance 83 of the prisoner.").
See, e.g., 18 U.S.C. § 3142(f) (2006); FLA. STAT. ANN. § 907.041(4)(a) (West 2011);
S.D. CODIFIED LAws § 23A-43-2 (2004); United States v. Ploof, 851 F.2d 7, 11 (1st Cir.
1988) (holding that preventive detention is authorized under 18 USC § 3142(f) only if one of
the conditions listed in that section are met); State v. Olson, 152 N.W.2d 176, 178 (S.D.
1967) ("The granting of bail to a large extent is governed by the facts and circumstances of
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from the 1960s to the 1980s opened the door to increased^ detention^ by^ allowing judges to make predictions about defendants' guilt and future proclivity to
commit crime. 84 As a result, bail is no longer presumed in most cases and
judges are given a greater ability to consider additional factors^ in^ determining whether to release a person on bail. 85 The pretrial bail decision became whether to release a person on bail rather than how to release the person on bail. Early U.S. cases assert the importance of the right to^ bail^ and^ the presumption of innocence, a few connecting it with due process rights. The next section discusses the importance of the presumption of innocence and due process in the evolution^ of^ U.S.^ bail rights.^
86
A. 1966 Act Allows Weighing of Evidence
In the 1960s, Congress unintentionally opened the way for predictions of future guilt and pretrial weighing of evidence in the bail decision. The 1966 Federal Bail Reform Act strongly favored pretrial release, 87 in line with historical notions^ that^ bail^ should be^ presumed^ for^ all^ noncapital defendants.^
88
Congress found that many judges were setting high bail amounts that defendants could not meet, denying them real access to bail. 89 The 1966 Act maintained that people only be denied bail if they would not appear for trial. 90
each particular case."); Watkins v. Lamberti, No. 4D 11-894, 2011 WL 1084968, at * 1 (Fla. Dist. Ct. App. Mar. 25, 2011) (holding that the lower court did not abuse its discretion in denying bail "after consideration of the factors set forth in Florida Rule of Criminal Procedure 84 3.131"). See, e.g., 18 U.S.C. § 3142(e); Bell, (^441) U.S. at 533 ("The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials .... [lit has no application to the determination of the rights of a pretrial detainee during confinement before his trial has even 85 begun."); see also supra notes 71-73 and accompanying text. See supra notes 83-84 (^) and accompanying (^) text. (^86) See United States v. Scoblick, 124 F. Supp. 881, 889 (M.D. Pa. 1954); Carr (^) v. State, 4 So. 2d 887, 888 (Miss. 1941) ("[Y]et there is no such sanctity in this assumption of innocence which renders it immune to actual proof of guilt, or prolongs its life beyond that moment when the reason and judgment of the jury accept the guilt of the defendant as proven."). 87 See Bail Reform Act of 1966, Pub. L. (^) No. 89-465, 80 Stat. 214; H.R. REP. No. 89- 1541, at 5, 8-9 (1966), reprinted in 1966 U.S.C.C.A.N. 2293, 2299 (noting that (^) this Act will greatly increase pretrial release and reduce reliance on money bail and stating that "it is the poor man, lacking sufficient funds, who remains incarcerated prior to trial"); id. at 5 ("The purpose of [the Act] is to revise existing bail procedures in the courts of the United States including the courts of the District of Columbia in order to assure that all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges, to testify, or pending appeal, when detention serves neither the ends of justice nor the public 88 interest."). See supra note 82 and accompanying text. (^89) See supra note 87 and accompanying text. (^90) Thus, the Act provided that persons charged with noncapital crimes were required to
be released before trial unless the judge "determine[d] ... that such a release [would] not
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RESTORING PRESUMPTION OF INNOCENCE
pretrial as it was purely a rule (^) of "evidence." 97 With a declining emphasis on the presumption of innocence and courts now possessing (^) more discretion in pretrial decisions, the 1966 Act paved the (^) way for courts to consider additional factors, besides flight risk, in deciding whether (^) to release someone on bail. Given this increased discretion, the 1966 Act also led to public scrutiny of violent crimes by people released pretrial. 98 This scrutiny led to some
jurisdictions enacting laws that permitted judges to consider the dangerousness of the defendant, even though the (^1966) Act expressly prohibited such considerations.
9 9
While the immediate (^) result of the 1966 Bail Reform Act was that more defendants were released, the long-term impact (^) was a rationale that allowed for increased detention. The Act (^) led to a further expansion of discretion for judges to weigh evidence against defendants before trial-violating due process principles historically requiring this legal determination (^) to occur only at trial. 100 Judges were also granted more discretion in predicting which defendants (^) were likely to commit additional crimes-violating historic (^) presumption of innocence principles-requiring (^) that bail only be refused for flight risk. 101 Following the 1966 Act, courts continued (^) to connect the principles of due process with the presumption of innocence-explicitly and^ implicitly.^1 0 2 Indeed, the Court explicitly wedded the presumption of (^) innocence to the Due Process Clause. 103 In re Winship stated that to give "concrete substance" to the presumption of innocence, the Due Process Clause (^) required the prosecutor to
97 See Brown v. United States, 410 F.2d
212, 216 (5th Cir. 1969) (relying on the
Department's analysis of the Act to conclude "there is no conflict between Rule 46(f) and
the Bail 98 Reform Act").
See S. REP. No. 98-225, at 6 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3189
(quoting a study in D.C. that reported 13% rearrest rates for felony defendants and among
some groups of defendants 25% rearrest rates (surety bond), and concluding that the
"disturbing" recidivism rates "require[] the law to recognize that the danger a defendant may
pose to others should receive at least as much consideration in the pretrial release
determination as the likelihood that he will not appear for trial").
99 Bail Reform Act of 1966, Pub. L. No. 89-465, § 3146, 80 Stat. 214.The first states to
consider dangerousness as a factor in making pretrial release determinations were Alaska
(1967), Delaware (1967), Maryland (1969), South Carolina (1969), and Vermont (1967). See
Mary A. Toborg & John P. Bellassai, Attempts to Predict Pretrial Violence: Research
Findings and Legislative Responses, (^) in THE PREDICTION OF CRIMINAL VIOLENCE 101, 107
n.24 (Femand N. Dutile & Cleon H. Foust eds., 1987).
100 See supra note 70 and accompanying text.
101 United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985).
102The Supreme Court made clear that due process required "that no man should lose
liberty unless the Government has borne the burden of... convincing the factfinder of his
guilt." In re Winship, 397 U.S. 358, 364 (1970) (quoting Speiser v. Randall, 357 U.S. 513,
103 Estelle v. Williams, 425 U.S. 501, 503 (1976) ("The presumption of innocence,
though not articulated in the Constitution, is a basic component of a fair trial under our
system of criminal justice.").
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persuade the jury beyond a reasonable doubt. 104 While connecting the Due Process Clause to the presumption of innocence, the Court failed to recognize
that due process principles were critical in guaranteeing bail rights. The Court
emphasized that defendants should be released and that liberty should be
preserved before trial. 1 0 5^ This was a historic departure from precedent tying both due process and the presumption of innocence with pretrial rights.
The failure to recognize the importance of due process and the presumption of innocence pretrial allowed the Court to equate these principles with the
prosecutor's burden of proof. Following this change in tide,' 0 6^ the Court in
Taylor v. Kentucky decided that Coffin was in error when it stated that the principles of the presumption of innocence and the prosecution bearing the
burden of proof beyond a reasonable doubt were separate and distinct. 1 0 7^ Taylor
asserted that though guilt should be determined at trial, the presumption of innocence was just one way to express this right to a jury. 1 0 8^ In equating the
presumption of innocence with the prosecutor's burden of proof, the Court
emphasized the import of the presumption of innocence and due process at trial, rather than pretrial and also robbed it of its initial import in guaranteeing bail. 109 With changes in constitutional protections pretrial, courts recalibrated the level of rights they granted pretrial detainees. Clearly, detainees should not be treated like convicts, but courts still had to determine what restrictions could be made on their liberty in accord with due process and the presumption of innocence while in detention. Generally, in order to justify a restriction of pretrial defendants' rights, courts required a compelling necessity for prison
safety. 110 They emphasized that pretrial defendants should be entitled to the
104 Winship, 397 U.S. at 363. The Court later echoed the link between the presumption
and due process by pointing out that "[t]he right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment." Estelle, 425 U.S. at 503. 105 Winship, 397 U.S. at 367. The Court expressly affirmed that the state cannot punish without due process, and more specifically held that the accused maintain "freedom from bodily restraint" that is protected except in accordance with due process of law. Ingraham v. Wright, 430 U.S. 651, 673-74 (1977). The Court was clear in several cases that an adjudication was required to satisfy the demands of due process and to deny this basic fundamental right of freedom from bodily restraint and punishment. See also Rochin v. California, 342 U.S. 165, 172-73 (1952). 106 Another indication of the change (^) in tide occurred in 1970 when Congress (^) passed a
District of Columbia act that was a precursor to a similar national bail reform that went into
effect in 1984. The D.C. act allowed detention before trial based on safety to the community
and other factors for serious crimes. After enactment of the D.C. statute, twelve additional
states enacted laws patterned after it. Toborg & Bellassai, supra note 99, at 107 nn.25-26.
107 Taylor v. Kentucky, 436 U.S. 478, 483-84 (1978).
1 0 8^ Id. at 485.
1091d.
110 Bosworth, supra note 71, at 279; Detainees of the Brooklyn House v. Malcolm, 520 F.2d 392, 397 (2d Cir. 1975) (applying the compelling necessity test in a case concerning inhumane and unsanitary living conditions in New York detention centers). Indeed, administrative inconvenience and economic constraints are not compelling necessities for limiting detainees' rights. See Marcera v. Chinlund, 595 F.2d 1231, 1237 (2d Cir. 1979).
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