The Due Process of Bail

Authors

Jenny E. Carroll, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

11-2020

Journal Title

Wake Forest Law Review

ISSN

0043-003X

Abstract

The Due Process Clause is a central tenet of criminal law’s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Essay considers the lay of the bail due process landscape through the lens of the district court’s opinion in O’Donnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the O’Donnell court failed to characterize pretrial process as a substantive due process right – as countless courts before it had -- the case offers a compelling possibility that such a characterization is in fact appropriate in defining due process in a pretrial setting. And so, this Essay concludes by reimagining pretrial due process as procedural and substantive in nature.

First Page

757

Last Page

793

Num Pages

37

Volume Number

55

Issue Number

4

Publisher

Wake Forest University School of Law

Recommended Citation

Jenny E. Carroll, The Due Process of Bail, 55 Wake Forest L. Rev. 757 (2020).
Available at: https://scholarship.law.tamu.edu/facscholar/2056

File Type

PDF