Determining the Meaning of a State’s Constitutional Right to Bail Clause for Purposes of the Uniform Pretrial Release and Detention Act

The Uniform Law Commission’s Uniform Pretrial Release and Detention Act(“UPRDA” or “the Act”) is already being considered by many American states as a significant improvement over the status quoin American bail. However, while the Act correctly recommends that states limit pretrial detention by enumerating “covered offenses,” which are those charges potentially detainable by law (what I call a “detention eligibility net”), it also instructs that if a state interprets its current constitutional right to bail not as a right to release, but merely as a right to have one’s bail “set,” that state may enumerate its list of covered offenses “independently of its constitutional [no bail] provision” and allow the detention of constitutionally bailable defendants through unaffordable financial conditions.