Bail & Pretrial Detention

Question 1

what’s the basic idea for constitutional bail

Answer 1

bail that is higher than necessary to achieve compliance with presence at later hearings is excessive and unconstitutional

Question 2

what is the test for if ∆ should get pretrial release

Answer 2

1. flight risk
2. danger to community

Question 3

what are a judge’s four options when considering pretrial detention

Answer 3

1. release ∆ on own recognizance or a promise to pay if he doesn’t
2. release on bail
3. temporarily detain or deport
4. deny bail and retain ∆ before resolution of case

Question 4

what are the constitutional rules around bail

Answer 4

1. it is not punitive to hold someone before trial – it is regulatory and intended to keep community safe
2. holding someone till trial satisfies procedural DPC because there are safeguards
3. constitution doesn’t say there’s a right to bail – only a right to not have EXCESSIVE bail. No bail at all is just peachy

Question 5

what should bail be set at if government argues flight risk

Answer 5

an amount reasonably likely to ensure they show up

Question 6

when is pretrial detention appropriate

Answer 6

if government shows with clear and convincing evidence that no combo of release conditions would be sufficient to address the flight risk or danger to community

Question 7

what are some relevant factors for considering flight risk/ danger

Answer 7

• nature of charge
• strength of government evidence
• ∆’s background, criminal history
• risk to witnesses or victims
• community ties and employment