The Due Process of Bail

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 Article considers the lay of the bail due process landscape through the lens of the district court's opinion in ODonnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the ODonnell 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 charactization is in fact appropriate in defining due process in a pretrial setting. And so, this Article concludes by reimagining pretrial due process as procedural and substantive in nature.