San Diego Law Review


Jerry D. Cluff

Library of Congress Authority File


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Historically, capital crimes were an exception from the right to bail. However, in Furman v. Georgia, the United States Supreme Court abolished this exception. This Comment considers the purpose and constitutional nature of the right to bail to support the Court’s holding in Furman. This Comment asserts that the request for bail in offenses once classified as capital should be resolved in accordance with established standards used in other bail matters. In other words, the accused in a capital crime should possess the same right to bail as an accused in other cases. The constitutional right to bail is implicit in the Eighth Amendment, Due Process, and the Sixth Amendment. The purpose of bail is to permit release of the accused, but at the same time providing a surety or guarantee that the accused will appear at trial. On a theoretical level, bail is used to do much more than provide a guarantee. Bail is used to protect the functioning of the judicial process, to detain those thought to be dangerous, and to protect favored political or cultural interests. However, these uses often lead to an abuse of bail, namely the prevention of bail in capital cases based on the protection of society rationale. However this rationale presupposes the guilt of the accused. Thus, the rationale is contrary to the presumption of innocence that is the foundation of the American justice system. The author concludes that the capital crimes exception to bail is serves no legitimate government interest after Furman.

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