Pretrial detention and the right to be monitored

Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. This Essay develops two related claims. First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk. In contrast to previous proposals for reducing pretrial detention rates, electronic monitoring has the potential to reduce both fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense). Second, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action. The best prospect for meaningful change is the Eighth Amendment's prohibition of excessive bail. To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government's pretrial goals and the means employed to accomplish them. This Essay begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary. Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.