Academic journal article The William and Mary Bill of Rights Journal

Legitimacy, Authority, and the Right to Affordable Bail

Academic journal article The William and Mary Bill of Rights Journal

Legitimacy, Authority, and the Right to Affordable Bail

Article excerpt

INTRODUCTION...............590

I. LEGITIMACY AND APPEALS TO AUTHORITY...............593

A. Two Senses of Argument "Legitimacy"...............594

B. Legitimacy in Constitutional Argument...............596

C. Legitimate and Illegitimate Ipse Dixit Argument...............600

II. EXCESSIVE BAIL AND AN ILLEGITIMATE WALL...............602

A. Mapping the Wall...............605

B. White Makes an Illegitimate Ipse Dixit Argument...............607

C. En Masse Illegitimacy for Pre-Salerno Cases...............610

III. THE NORMATIVE CASE FOR AN AFFORDABLE BAIL RIGHT...............614

A. A Special Line to Protect the Poor: Griffin and Bail...............615

B. Legitimate Progeny of Stack and Griffin...............618

C. Discrimination Against the Poor Is Rhetorically Illegitimate...............622

CONCLUSION...............625

We are going to build a great border wall . . . .2

-Donald Trump, 2016

Mr. Gorbachev, tear down this wall!3

Ronald Reagan, 1987

INTRODUCTION

A powerful lobby wants you to believe that wealthy Americans have a stronger right to liberty than poor Americans. In courts around the country, this lobby's lawyers argue that a "wall of authority" supports the proposition that our criminal justice system may constitutionally discriminate against the indigent. Although this may sound far-fetched or even conspiratorial, it is entirely accurate. Consider the following true story.

In early January 2017, the Maryland Court of Appeals-the state's highest court-held a hearing on a proposed change to judicial rules of procedure governing pretrial detention of accused criminals.4 One debated provision sought to forbid judges from imposing bail "with financial terms in form or amount that results in the pretrial detention of the defendant solely because the defendant is financially incapable of meeting that condition."5 Translated from legalese, this provision essentially prohibited unaffordable bails.

At the Court of Appeals hearing, the first two speakers favored the proposed rule. Brian Frosh, Maryland's Attorney General, led off by advocating for the change to reform a broken money bond system that he said kept too many Marylanders in jail strictly because of their poverty.6 Former United States Attorney General Eric Holder spoke next and emphasized how the current system discriminated against racial minorities and likely violated equal protection.7 Then a third speaker stepped to the podium and vociferously opposed the proposed rule. This speaker was Paul Clement, former Solicitor General of the United States and now a partner at a law firm representing the bail-bond industry.8

Clement began by conceding that, under existing Maryland rules, "there will be circumstances where the defendant may face a bond amount that they [sic] can't post."9 However, this raised no constitutional issue because "the Constitution does not include a right to affordable bail in every case."10 Clement continued:

I don't think I'm going out on a limb by saying even at the time of the framing, not everybody had the same amount of money, and there were some people who were going to face a bail that they couldn't afford, but yet the Constitution doesn't protect against that. What it protects against is excessive bail that prevents somebody from having the option of at least posting a bail. It doesn't guarantee everyone the means of being able to post the bail, but it does guarantee the option.11

This startling claim flips traditional equal protection logic on its head. If the Constitution guarantees a bail option only accessible to people with means, the asserted right is to bail for the wealthy. In fact, the bail-bond industry is pushing this precise claim in courts around the country.12

How does the bail-bond industry justify a constitutional interpretation blessing a transparently two-tiered criminal justice system? …

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