In the case of Hensley v. Municipal Court, San Jose-Milpitas Judicial District, Santa Clara County (1972), the U.S. Supreme Court ruled that a person who is charged with a misdemeanor and cannot afford to post bail must be given an immediate probable cause hearing if they are detained in custody prior to trial. The petitioner, Robert Hensley, was arrested for public intoxication and unable to post bail; he remained in jail for five days before his arraignment where no determination of probable cause was made until then. He argued this violated his Fourteenth Amendment rights under Gerstein v Pugh which requires prompt determinations of probable cause for individuals taken into custody without warrant or indictment by grand jury. The court agreed with him stating that such delay violates due process guarantees as it unnecessarily prolongs pretrial detention.

In the dissenting opinion for Hensley v. Municipal Court, San Jose-Milpitas Judicial District, Santa Clara County, Justice William O. Douglas argued that the majority's decision was a violation of an individual's right to travel freely within the United States as protected by the Constitution. He contended that requiring someone who had been released on bail in one state to return there from another state where they were currently residing constituted an undue burden and restriction on their freedom of movement. Furthermore, he disagreed with the majority's assertion that such requirements did not constitute "actual restraints" under traditional habeas corpus theory because they still imposed significant restrictions and potential penalties on individuals' actions and choices about where to live or travel.