Bail reform is hot. Over the past two years, jurisdictions around the country have moved to limit or end money bail practices that discriminate against the poor. Although cheered on by many, bail reform is vehemently opposed by the powerful bail-bond industry. In courts around the country, lawyers representing this industry have argued that reform is unnecessary, and even unconstitutional. One particularly insidious argument advanced by bail-bond apologists is that a “wall of authority” supports the proposition that “bail is not excessive merely because the defendant is unable to pay it.” In other words, authority rejects the right to affordable bail.
This Article critically examines this “wall of authority” and evaluates the true doctrinal standing of the right to affordable bail. After developing a novel rhetorical account of legitimacy in constitutional argument, this Article demonstrates that authority supporting the bail-bond position is illegitimate in two senses—it is formally invalid and normatively “out of bounds.” The authority is formally invalid because it originates from a single implausible constitutional interpretation and is then echoed blindly in the name of following precedent. It is normatively inappropriate because it ignores Supreme Court doctrine that requires equal justice for indigents facing incarceration.
Some walls are obstacles to freedom and justice. To liberate Eastern bloc societies oppressed by totalitarianism, President Ronald Reagan famously implored Mikhail Gorbachev to tear down the Berlin Wall. The metaphorical “wall of authority” endorsed by the bail-bond industry also imperils liberty—so this Article tears it down with original rhetorical theory and robust doctrinal analysis.