What the Right Hand Gives: Prohibitive Interpretations of the State Constitutional Right to Bail
Most state constitutions include a right-to-bail provision, commonly phrased, “All persons shall be bailable by sufficient sureties except for [certain offenses] when the proof of guilt is evident or the presumption great.” This Note examines conflicting interpretations of the effect this provision has on the cases excluded from its guarantee—specifically, certain offenses when the proof is evident or presumption great. Some courts read this provision to be silent regarding the excepted cases, allowing the legislature and judiciary to decide whether to permit bail. Others reason that the plain language of this right to bail is prohibitive with respect to the excepted cases even if the court concludes that the accused does not pose a risk of flight or danger. This Note concludes that the grammatical structure and history of this provision support the former, permissive interpretation. It further warns against reducing the standard for denial of bail to the strength of the proof of guilt alone, arguing that the bail decision should reflect the purposes of bail—to ensure the accused’s presence at trial and safety of the community—lest the practice venture into the dangerous territory of preconviction punishment.