A judge in Marion County recently explained to a courtroom that Arkansas law obligated him to set bond for a defendant accused of serious crimes, even as concerns about community safety lingered. His statement highlights a provision in the Arkansas Constitution that limits the ability of judges to deny bail in certain cases, leading to calls for reform.
Under Article 2, Section 8 of the Arkansas Constitution—adopted in 1874—all individuals charged with a crime are entitled to bail before conviction, except in capital cases where the proof is evident or the presumption of guilt is great. Rape and other serious offenses such as conspiracy to commit rape or child sexual assault are classified as non-capital offenses in Arkansas. As a result, judges cannot hold defendants accused of such crimes without bond, regardless of concerns about potential threats to public safety. Judges can impose high bond amounts, but that is the limit of their authority.
This constitutional provision dates back to legal principles from the colonial era, which focused on ensuring that defendants appeared for trial, using financial guarantees as leverage. Public safety was not considered when the original bail framework was established.
In 1984, Congress passed the Bail Reform Act, allowing federal judges to deny bail based on risks to public safety, a move later upheld by the U.S. Supreme Court in *United States v. Salerno* in 1987. Following the federal example, many states amended their constitutions to incorporate public safety considerations into pretrial detention decisions. Neighboring Texas, for instance, approved Proposition 3 in 2021, which permits judges to deny bail to individuals accused of specific serious crimes after a rigorous hearing process that safeguards defendants’ rights.
Arkansas voters have yet to consider such a constitutional amendment. Critics of the current system point to specific cases to illustrate the consequences of the state’s bail rules. In one Marion County incident, Steven Michael Manson posted bond multiple times despite facing escalating charges, including the rape of a child under 14. He was wearing a court-ordered ankle monitor when new allegations arose. His father, facing conspiracy to commit rape charges, similarly secured release on bond, only for the court to revoke it after discovering he had traveled out of state. Even then, state law required a new bond to be set.
Judges in these cases acted within the legal framework, yet such rulings have frustrated and alarmed some community members who feel the law ties judges’ hands.
Opponents of expanding pretrial detention powers caution against rushing to amend the constitution, citing concerns about potential abuses and the rights of defendants. They argue for careful crafting of any amendment, perhaps taking cues from other states like Texas, which require prosecutors to meet a burden of proof and guarantee hearings with legal representation and written judicial findings to allow appellate review.
There are two pathways for Arkansans to pursue an amendment. The General Assembly can refer a proposed amendment to voters with a simple majority vote in both chambers. Alternatively, citizens can initiate an amendment via a petition, though doing so requires tens of thousands of valid signatures and approval of the measure’s ballot title by the attorney general. Both routes would ultimately require voter approval.
Observers argue that Arkansas' bail laws, last amended nearly 150 years ago, may not meet the needs of the modern justice system. Whether through legislative action or grassroots efforts, some believe it is time for voters to decide if public safety should weigh more heavily in pretrial detention decisions.