CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, May 18, 2022

Harris on Misdemeanor Cash Bail and Excessive Fines

Barnett Harris has posted Is Misdemeanor Cash Bail an Unconstitutional Excessive Fine? (2021 Pepp. L. Rev. 72 (2022)) on SSRN. Here is the abstract:

“[H]ere we are in 2018 . . . still litigating incorporation of the Bill of Rights. Really? Come on . . . .”
– Supreme Court Justice Neil Gorsuch

“[O]ur bail system—excuse the expression—is totally ass-backwards in every respect.”
– New York Court of Appeals Chief Judge Jonathan Lippman

The Excessive Fines Clause is one of the least developed clauses pertaining to criminal procedure in the Bill of Rights. In fact, the Supreme Court has only interpreted the Clause a few times in its entire history. Yet, on any given day, hundreds of thousands of people languish in jails without having been convicted of anything, because most of these people are unable to meet the bail amount a judge sets.

This Essay examines the surprisingly under-explored relationship between misdemeanor cash bail & pretrial detention and the Exces-sive Fines and Excessive Bail Clauses of the Eighth Amendment, using the Supreme Court’s recent decision in Timbs v. Indiana, 139 S. Ct. 682 (2019) as an inroad into the broader topic. The Supreme Court’s recent decision in Timbs held that the Excessive Fines Clause applies to the states, thus constitutionally limiting governmental au-thority to impose economic sanctions. However, it may have done more than that. Since that decision, the line between a legitimate state interest and a punitive economic sanction in misdemeanor bail decisions is blurred, raising the interesting question of what makes a bail determination reasonable. This Essay sets out a few conceptions of the relationship between bail determinations and excessive fines, then shows how those conceptions flow naturally from the rationale of Timbs. The Essay concludes that the Constitution demands more pro-tections for the accused at bail hearings, and the current system in many states fails constitutional scrutiny.

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