Defendants Have No Constitutional Right to Cash Bail

The U.S. Constitution doesn’t grant criminal defendants a right to cash bail, the U.S. Court of Appeals for the Third Circuit said July 9.

A New Jersey bail reform law that prioritizes non-monetary bail is therefore constitutional, the opinion by Judge Thomas L. Ambro said.

New Jersey’s new law measures a defendant’s risk of flight and imposes conditions on him, such as house arrest, wearing a monitor, and other types of restricted movement, that may be imposed. Cash bond is an option in limited cases.

After his arrest, Brittan Holland agreed to pretrial home detention and electronic monitoring. He then sought an injunction against the reform law, claiming his movement was overly restricted. The district court said Holland wasn’t likely to succeed on his constitutional challenges.

The Eighth Amendment prohibits excessive bail, but that guarantee doesn’t assure monetary conditions over non-monetary conditions, the appeals court said.

Neither does New Jersey’s law violate the 14th Amendment’s due process guarantees, the court said. Cash bail isn’t protected by substantive due process because it isn’t sufficiently rooted historically nor implicit in the concept of ordered liberty, it said.

Holland claimed the law amounts to an unconstitutional seizure under the Fourth Amendment because a cash bail provides a less intrusive way to serve the state’s legitimate interests. But the U.S. Supreme Court has repeatedly disavowed a less intrusive means standard under the Fourth Amendment, the court said.

Judges L. Felipe Restrepo and Julio M. Fuentes joined the opinion.

Kirkland & Ellis argued for Holland. The New Jersey Attorney General’s Office argued for the state.

The case is Holland v. Rosen, 2018 BL 241620, 3d Cir., No. 17-3104, 7/9/18.

To contact the reporter on this story: Bernie Pazanowski in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at