Although there is a strong presumption of unconditional pretrial release, it is only a presumption and not an absolute right. Therefore, it may be overcome by showing a necessity for more restrictive conditions of release or detention in individual cases. The right to bail and constitutional right of equal protection have never been interpreted as granting an absolute right to pretrial release to all defendants accused of a crime. In order to overcome this presumption there ought to be a finding by a judicial officer that more restrictive conditions are required. Such a finding should take place only after a hearing with procedural safeguards.
Due process requires no less.
A major evil of the traditional money bail system which routinely permits bail to be set from a schedule of amounts based solely on the nature of the charge is the unavailability of a process that permits consideration of all relevant factors. A true due process hearing requires that the decision be individualized, supported by sound reasons and evidence, and subject to prompt appeal. The due process requirements suggested in this Standard may, in a practical sense, be the most important aspect of the pretrial release standards. It would be an unfortunate paradox indeed, if people continued to be deprived of their liberty while awaiting trial in the face of the presumption of innocence and in the absence of procedural safeguards, while at the same time others could not be denied welfare benefits, or have parole revoked without a hearing, reasonable conclusions, and supporting evidence, as required by the Supreme Court. Burden of Proof on Prosecutor.