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The right to post bail in order to free someone from being detained while they await trial is a fundamental right of all Americans. Bail is written in our constitution. It has also become part of our culture, with bail hearings and bondsmen taking center stage in movies and TV. But the system of how bail is administered is under attack, with many claiming that it violates the constitution.
The Problem With Cash Bail
In most cases, bail is set higher depending on the crime the person is charged with, or the risk that the person will fail to appear for trial. This seems to make sense—the bigger a risk someone is to flee, the higher bail should be set to make them think twice before they run.
However, this system fails to take into account a suspect’s ability to pay the bail amount. As a result, people with money tend to have an easier time posting bond, and people without means tend to be unable to meet bond requirements. A movement is underway nationally to reform the bail system to force judges to consider the financial means of a Defendant when setting bail amounts.
Critics of the system say that the current bail system is effectively jailing people because they cannot pay. People are presumed innocent until proven guilty, making it even more important that all suspects have equal access to bail.
Sitting in Jail Causes Community Problems
Lack of access to bail is not just a constitutional problem, but a community problem. Jails are becoming overcrowded in areas where people are unable to meet even modest bail amounts, and people who are jailed before trial often lose ties to their community; they may lose jobs, be unable to care for children, or lose leases for apartments they live in.
When and if they are released, they then end up in worse shape than they started, and are more likely to recommit criminal offenses. Critics also say that cash bail disproportionately affects minorities and people of color.
People being held in jail are more likely to accept a plea deal, even if they are innocent, just to get themselves out of county jail. If they are innocent, they are also less able to participate in their own defense, being unable to gather paperwork, or access witnesses.
Some, But Not Many Changes
In the face of lawsuits challenging bail, some states have turned to laws that allow those charged with lower level, or non-violent crimes, to be released without bail, at a judge’s discretion. Advocates say people being held for shoplifting, minor drug charges, or trespassing, should be able to get back to their normal lives while they await trial.
Many states have been slow to adopt bail reform. Cash bail remains the norm, despite the fact that many state’s constitutions require that suspects or defendants be released pretrial on “reasonable conditions.”
The History of Cash Bail
The Eighth Amendment Bail Clause prohibits bail that is excessive—without regard to whether it is unaffordable. The fundamental purpose of bail is to tie a defendant to a jurisdiction and guarantee his appearance at trial. While several states are considering various bail reforms, some advocates have argued that “any bail practices that result in incarceration based on poverty violate the Fourteenth Amendment.” The text and history of the Eighth Amendment, as well as U.S. Supreme Court precedent, do not support that argument. Advocates in the ongoing wave of bail reform should concentrate their arguments on policy grounds rather than on calls for reinterpretations of the Constitution.
Bail is an ancient practice at the heart of a recurring nationwide debate: Should we hold people in jail before trial if they are unable to pay bail? Money-bail practices were well known to the Framers as they drafted the Constitution and the Bill of Rights. Its purpose, to ensure the appearance of an accused individual at trial, was a well understood and uncontroversial element of the criminal justice system in early America. The Framers’ primary concern in drafting the Eighth Amendment’s Bail Clause was to ensure that bail not be set unreasonably high—which was not to say that bail must be affordable, or even available, to all defendants.
Since the founding era, America has experienced two waves of bail reform. Now, a third is developing among several states. Some reformers engage in the political process to seek policy changes through legislation. Others attack money bail as unconstitutional, ignoring the history of the Bail Clause and reinterpreting long-standing principles of due process and equal protection. In this third wave of bail reform, what is past is prologue.
Judges can and should consider a person’s financial status at the time of setting bail, but the Constitution does not require that bail be available in all cases, or that it be affordable to each defendant. If advocates wish to change this, the proper venue is through the legislature, not the judiciary. Trying to persuade judges to rewrite the U.S. Constitution to achieve the objectives of bail-policy reformers threatens injury to the Constitution itself.
The Origins of Cash Bail
Modern American bail law can trace its origins through 15 centuries of history, to the ancient days of Anglo-Saxon England. Then, unlike today, criminal justice was a largely private, often brutal affair. . Family members were expected to avenge their murdered kin. Any private citizen could kill an offender sentenced to “outlawry.” Anyone caught in the act of committing a crime could be summarily executed.
Gradually, however, Anglo-Saxon law turned away from blood feuds toward a system of financial compensation paid by offenders to their victims. These payments, known as “wergeld,” were equal to the injured party’s value, which was assigned based on, among other things, the person’s social status. The late seventh century brought courts of arbitration, which heard and adjudicated complaints between Englishmen. This transition to a court-centered justice system presented ancient communities with a familiar problem: how to prevent the accused from fleeing to avoid punishment?
Jail facilities were impractical, so Anglo-Saxon law dealt with the problem by releasing the accused on condition that he find a surety—someone who assumed responsibility for ensuring his appearance at trial. The surety had to put up a pledge equal to the amount of the potential penalty, which would be forfeited if the accused failed to appear. This early system of bail killed two birds with one stone: It simultaneously provided strong incentives to sureties to ensure their charges appeared in court, and guaranteed payment to victims if they fled.
The Norman conquest of 1066 brought considerable change, as the role of the state in criminal justice grew. Under Anglo-Saxon law, all crimes were considered bailable. But by the time of the Assize of Clarendon, issued in 1166, Norman custom had evolved to place certain offenses, such as murder and “forest offenses,” beyond the scope of bail. Most other offenses, however, remained bailable, largely due to the difficulties involved in detaining individuals for the years it sometimes took for itinerant judges riding a circuit to arrive in a given county.
Medieval English law gave sheriffs discretionary power to set the amount of bail and to choose whether to jail a defendant. This system invited corruption, including unlawful detention by sheriffs looking to extort payments from arrestees, as well as bribery to secure the release of suspects who were supposed to be held without bail. Consequently, subsequent centuries saw bail law undergo a series of reforms designed to restrain the discretionary authority of sheriffs, normalize the process of bail and pre-trial release, and provide security against unlawful detention.
Following the adoption of Magna Carta in 1215, a long series of proclamations and acts of Parliament provided incremental steps to define and protect the legal rights of Englishmen as criminal defendants. The first Statute of Westminster commanded sheriffs to release certain individuals deemed replevisable by the law on “sufficient Surety.” This and subsequent statutes proceeded to define which offenses were and were not bailable. The Petition of Rights of 1628 curtailed the practice of imprisoning individuals without any accompanying charge. The Habeas Corpus Act of 1679 expedited the process of setting bail and releasing defendants prior to trial. The Bill of Rights of 1689 responded to the practice, employed by some judges, of using exorbitant bail to restrain individuals who otherwise would have been entitled to release. In language instantly recognizable to Americans today, the English Bill of Rights declared “[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
By the end of the 17th century, English citizens could point to centuries of statutory and common law affording a qualified right to pre-trial release. In England, this right to release was understood to be available only for certain classes of offenses and was unrelated to the ability of the accused to meet the requirements of bail—that is, if sufficient surety could not be obtained, the accused was most often detained. Thus, pre-trial release was a system designed to balance the interests of the accused with the interest of society in ensuring that wrongful acts be punished, and criminals be prevented from absconding. There was no guarantee that a suspect would be released pending trial. That general framework is still with us today.
Bail in Early America
English colonists traveling to the New World brought their conceptions of law and justice with them. Most saw themselves as Englishmen protected by English law. In Connecticut, Delaware, Georgia, Maine, Maryland, and Rhode Island, colonial charters extended the legal rights enjoyed under English law to colonial Americans without modification. The inhabitants of some colonies, however, applied the mother country’s laws, including bail law, with slight variation, heralding the federalism we enjoy today. Colonial Massachusetts, through its Body of Liberties of 1641, provided that “[n]o man’s person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle, or mainprise, for his appearance, and good behavior in the meane time,” except in cases where the individual was accused of a capital crime, contempt of court, or other offenses exempted by the legislature. In 1682, Pennsylvania adopted its own Frame of Government of Pennsylvania, providing that “all prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident, or the presumption great.” New York modeled its bail system on Pennsylvania’s, providing bail in all cases save charges of treason and felony.
Thus, by the dawn of the Republic, American legal custom had already developed a strong presumption favoring pre-trial release by means of a bail payment. Once released, a surety became, in essence, a defendant’s jailer. Sureties were expected to assure that a defendant in their charge complied with all release conditions and appeared in court for trial, and were further responsible for apprehending and detaining a defendant if he fled. As late as 1872, the U.S. Supreme Court cited English common law to explain the responsibilities and liabilities of sureties with a defendant in their charge.
Calculating a reasonable sum of bail in each case was also a grave matter. The common law offense of taking insufficient bail appeared in colonial laws, whereby if a party was released on insufficient sureties and did not reappear, the officer who set bail could be fined. A 1645 law in the Virginia Colony, for example, held sheriffs liable “to pay the award of the court” if he “shall neglect to take sufficient bail of the party arrested, or otherwise consent to, or be cause of” an accused man’s escape. Clearly, rather than a mere pro forma act, bail was to be set at an amount judged to be sufficient to incentivize appearance at trial, without becoming excessive.
Bail Under the Constitution
After 1776, the former colonies adopted constitutions that retained specific prohibitions against excessive bail, but did not create an absolute right to bail in all cases. Rather, the power was reserved to the legislatures to define which offenses were considered bailable. Capital crimes, for example, were subject to special restrictions and were not bailable at all. In America, as in England, the fact that a defendant was accused of a bailable offense did not guarantee his automatic release. Judges were empowered to consider individual factors, such as the evidence against a defendant, the probability of conviction, and his criminal history in determining what amount constituted reasonable bail. And, of course, pre-trial release was not a “get out of jail free card”—it was conditioned upon the ability of the accused to post a reasonable bail and provide adequate sureties that he would return to face judgment. Indeed, the U.S. Supreme Court clarified one century later: “When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment.”
Bail did not appear in the U.S. Constitution as it was first written and ratified. Congress specified that “[e]xcessive bail shall not be required” in the language of the Eighth Amendment, which passed with broad support and virtually no debate. This is hardly surprising given how closely the Eighth Amendment’s language hewed to both existing state constitutions and the English Bill of Rights of 1689 from which “the bail clause was lifted, with slight changes.” The first Congress also included in the Judiciary Act of 1789 a provision establishing that for “all arrests in criminal cases, bail shall be admitted, except where the punishment may be death.” Thus, federal law preserved the rights provided for in the various state constitutions, chiefly the strong presumption favoring pre-trial release through bail, legislative control of admittance to bail, and a bar to excessive bail based on the English Bill of Rights and state constitutions. In short, Congress did nothing novel with the Eighth Amendment’s bail provisions.
As rooted as the American justice system is in the common law and traditions of England, it nonetheless experienced unique challenges that produced novel legal consequences. America’s expansive and unexplored frontier, for one, afforded criminal suspects far more opportunity to flee and evade justice than the English islands. Additionally, the “unrooted” and rural life of many early American settlers simply made it harder to find a surety to take responsibility for a defendant in the pre-trial period. Although sureties often did step forward, “their promise to produce the accused gradually became a promise merely to pay money should the accused fail to appear.” Some entrepreneurial spirits saw an opportunity. By posting a bond on a defendant’s behalf in exchange for a fee, underwriters could turn a profit. So long as they exercised “reasonable diligence” to prevent escapes, “courts either waived or refunded a substantial percentage of forfeitures.” Regardless, bondsmen retained their fee.
The exact origin of the modern commercial bail-bond industry in the United States is difficult to pin down, but most trace its lineage to late-19th-century San Francisco. Two brothers, Peter and Thomas McDonough, realized that charging a fee and working directly with defendants was a lucrative business opportunity and founded the nation’s first commercial bail-bond firm from their father’s saloon near San Francisco’s Hall of Justice. The firm lasted only five decades, and earned a degree of infamy for its ties to organized crime and corruption, but it set a precedent, and the commercial bail bond industry was born.
The average commercial bondsman’s firm works as follows. A defendant, unable to afford bail or locate a family member or friend willing or able to do so, may instead turn to a commercial surety. The firm posts bail in the full court-ordered amount, and charges the defendant a percentage fee, usually 10 percent. The bondsman has the responsibility to ensure that the accused appears in court and is empowered to track down, detain, and return fleeing individuals. If the firm fails to do so, it forfeits the full amount of bail; if it successfully delivers a defendant, the bail amount is returned, and the firm retains the percentage paid by the defendant. The business model has proven successful and easily replicable and has spread throughout the nation. Indeed, today commercial bondsmen operate in nearly every state, although some states have outlawed the practice.
Bail in the Supreme Court
Notwithstanding these unique developments, federal bail law was largely unchanged until the middle of the 20th century. In the 1950s, it became the center of several controversies that reached the U.S. Supreme Court. In 1951, 12 communists charged with violating the Smith Act challenged their bail, set at $50,000 apiece, as “excessive” under the Eighth Amendment. Chief Justice Fred Vinson, writing for the majority in Stack v. Boyle, defended the “traditional right to freedom before conviction,” but found that pre-trial freedom does not come without conditions:
The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty. Like the ancient practice of securing oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is “eccessive” under the Eighth Amendment.
Importantly, the Court affirmed that the role of bail is to provide an anchor holding a defendant in place pending the outcome of a trial, and held that judges must conduct individualized assessments when considering the amount of bail in each case.
A year later, in 1952, alien communists held without bail pending possible deportation challenged their detention on the grounds that the Constitution afforded them a right to release on bail. Justice Stanley Reed, writing for a majority of the Court in Carlson v. Landon, rejected the argument that the Eighth Amendment “compels the allowance of bail in a reasonable amount” in all cases. Reed correctly pointed out:
The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus, in criminal cases, bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable.
Reed based his Eight Amendment analysis by reference toits antecedent English Bill of Rights, which “has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail.” It is instructive that “[w]hen this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.”
Setting Bail When Proper
The Medieval English criminal justice system that produced money bail was quite unlike the criminal justice system that administers bail today. It functioned like an artisan’s workshop, with few professional actors—typically just a sheriff and a magistrate—whose law enforcement roles often fell to members of the community. Today’s criminal justice system, at least in large urban cities, functions much more like a factory, with many professionals performing discrete tasks, requiring far less direct involvement from the community.
Jails are no longer impractical. Judges no longer ride circuit. A host of law enforcement officials now work to identify, capture, and detain suspected criminals and track defendants who flee before trial. A sizable bureaucracy keeps the wheels turning, including pre-trial services agents who recommend how to treat criminal defendants before trial and personnel who ensure that any conditions of release are met. The state has taken much of the responsibility to supervise criminal defendants before trial off the hands of kinfolk who performed that task in medieval England.
Bail played a significant role in the evolution of criminal justice, particularly regarding the pre-trial hearing known as an “arraignment,” in which a defendant typically enters a plea of not guilty to the charges against him and a judge decides what to do with the defendant before trial. By the 1980s, arraignments exemplified the factory model of criminal justice: brief, efficient exchanges between judge, prosecutor, defense counsel, and defendant—and behind them a tremendous bureaucracy at work, “involving stacks of paperwork by police officers, deputy U.S. attorneys, defense attorneys, judges, and courthouse workers.”
At the arraignment, judges must impose “bail or jail,” or some other release conditions, before a defendant is convicted. Consequently, the presumption of innocence is pertinent. Yet a judge cannot be blind to the fact that several government officials, and often a grand jury, have already drawn conclusions about the likelihood of the defendant’s guilt. Many critics have argued that some judges are unduly swayed by law enforcement concerns that a defendant will pose a significant risk of flight or harm to individuals or the community if released—and increase bail as a means of detaining defendants. The result, they argue, contributes to a broader problem: that too many people are in jail pending trial “simply because they are poor.”
Although we have come far from medieval sheriffs extorting bail money, some who experience these procedures firsthand, as well as academics, litigators, policy experts, professional organizations, and some judges, harbor significant concerns about the pre-trial detention of defendants who cannot afford bail. That controversy has generated three waves of bail reform: the first in 1966, the second in 1984, and the third today. Some of today’s advocates disregard the lessons of past reform, seeking instead to rewrite the history and text of our Constitution.
Wave I: The Bail Reform Act of 1966 and “Presumptive Release”
Bail, like the humans who administer it, was never perfect. In 1964, then–U.S. Attorney General Robert F. Kennedy gave an oft-cited critique of bail practices that existed at the time:
Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. The factor is simply money. How much money does the defendant have?
Though it may be true in some cases, such a simplistic representation is misleading. Reform-minded legislators in the 1960s were concerned that judges focused on non-financial factors such as the nature of the crime and the character of the defendant too much, not too little. They “condemned” federal rules that “allowed judges to detain defendants” merely by “setting unaffordable bail” with only a “questionable” explanation as to the reason for doing so. The unstated purpose behind the setting of unaffordable bail was usually that the defendant was too “dangerous” to release. The net effect, reformers argued, was that a great many people—particularly poorer defendants in crowded city jails—were stuck, often unjustifiably, in detention, while wealthier and possibly more dangerous suspects were able to secure release.
In the face of these criticisms, Congress enacted the Bail Reform Act of 1966, which declared that “the sole purpose of bail laws must be to assure the appearance of the defendant” and adopted a policy that no one, “regardless of their financial status,” may “needlessly be detained pending their appearance.” It directed judges to release all non-capital case defendants on their own recognizance unless doing so would be inadequate to assure their appearance. In such situations, it enumerated additional conditions of release that a judge could impose to meet that goal, including placing the defendant in the custody of a “designated person,” placing restrictions on travel, or one of several forms of money bail, such as an appearance bond or a surety bond. And the act listed factors for a judge to consider for setting conditions of release. These included indicia of a defendant’s flight risk, such as ties to the community, as well as his financial resources to permit the setting of a reasonable amount of bail. The law, however, did not permit judges to consider a defendant’s prospective dangerousness to the community in deciding whether to detain someone—the very reason, it was suspected, why many judges were setting bail that was out of reach to many accused offenders.
Wave II: The Bail Reform Act of 1984 and “Dangerousness”
The 1966 act caused problems almost immediately. In 1970, Congress authorized preventive detention in the District of Columbia at the request of local officials concerned about the release of violent offenders. By the 1980s, nationwide public-safety concerns stemming from the crimes committed by defendants out on pre-trial release had trumped the liberal release agenda of the 1960s. Many states changed their bail laws accordingly. President Ronald Reagan and Chief Justice Warren Burger both voiced this sentiment as well. The Senate Judiciary Committee decried the 1966 act’s “failure to recognize the problem of crimes committed by those on pre-trial release” and determined “that federal bail laws must address” that alarming oversight. In 1984, Congress rectified its earlier oversight with a new Bail Reform Act that enabled judges to detain the few “but identifiable” “particularly dangerous” defendants for whom no “stringent release conditions” or likelihood of re-arrest would “reasonably assure” public safety.
The 1984 law did not throw open the door to excessive bail. In fact, Congress expressly prohibited “using inordinately high financial conditions to detain defendants,” instead authorizing judges to consider a defendant’s dangerousness when determining whether to hold a defendant pre-trial. Of course, Congress had to ensure that preventive detention would not cast too wide or narrow a net, so it adopted workable but “stringent safeguards to protect the rights of defendants” based in part on the 1970 preventive detention statute for the District of Columbia. Defendants were afforded “a full-blown adversary hearing,” where “the Government must convince [the judge] by clear and convincing evidence,” based on specific factors, “that no conditions of release can reasonably assure the safety of the community or any person.”
Two defendants detained without bail challenged the law soon after it was enacted. They argued that preventive detention under the act violates the Eighth Amendment and also “constitutes impermissible punishment before trial” in violation of “substantive due process.” The U.S. Supreme Court rejected both claims and upheld the constitutionality of the act. It found no Eighth Amendment bar to the government “pursuing compelling interests” such as public safety “through regulation of pre-trial release.” It also concluded that pre-trial detention under the Bail Reform Act “is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause.”
Some advocates urged Congress to eliminate money bail entirely, but legislators considered that “unjustified.” The Department of Justice recommended preserving money bail as a historical and effective method to deter flight and secure reappearance. Congress appears to have adopted that position when crafting the 1984 act. Per the Senate Judiciary Committee report, “[A] financial condition of release that results in the pre-trial detention of the defendant…does not necessarily require [their] release” if the judge determines that “it is the only form of conditional release that will assure the person’s future appearance.”
Today, courts across the country recognize that they are prohibited from “using unnecessarily high bail amounts as a replacement for the required findings necessary to order pre-trial detention.” Critics, however, maintain that state courts still set unaffordable money bail in unfair, irrational, and unnecessary ways. This has led to the third wave of bail-reform efforts now unfolding in several states.
Wave III: Familiar Policy Proposals and Novel Misinterpretations of the Constitution
In 1966 and 1984, advocates brought compelling policy concerns about money bail to their legislators, specifically alleging that too many people are jailed before trial—with devastating personal consequences—“simply because they are poor” and cannot afford bail. Today’s advocates direct their policy concerns not only to legislatures but to courts, staking out misleading positions supported by factually incorrect arguments that money bail is unconstitutional. Two of these arguments stand out.
Fourteenth Amendment. In 2016, the U.S. Justice Department wrote a “Dear Colleague” letter to state and local “judicial actors” asserting that “any bail practices that result in incarceration based on poverty violate the Fourteenth Amendment.” This is incompatible with long-standing constitutional law. Just as the English jurist William Blackstone found it clear in 1765, federal courts in this country have considered it clear in modern times that “bail is not excessive merely because the defendant may be financially unable to post an amount otherwise meeting the above standards.” A defendant’s present financial inability to make bail “is certainly…a concern which must be taken into account when determining the appropriate amount of bail,” however, “it is neither the only nor controlling factor to be considered by the trial court judge in setting bail.”
At least two state courts have also addressed the issue and reached the same conclusion. The Supreme Court of Vermont recently concluded that “[a]lthough both the U.S. and Vermont Constitutions prohibit excessive bail, neither this court nor the U.S. Supreme Court has ever held that bail is excessive solely because the defendant cannot raise the necessary funds.” The Supreme Court of Wyoming also determined that “it is not necessary for a court to [fix bail] at a point that it can be made by the defendant,” because “the measure is adequacy to insure [sic] appearance” not “the defendant’s pocketbook and his desire to be free pending possible conviction.”
The Justice Department concluded otherwise by interpreting too broadly a body of federal judicial precedent which holds that an indigent convicted criminal’s present inability to pay certain fines or fees is generally an impermissible basis to impose or enhance a post-conviction sentence of incarceration or to deny a hearing. The U.S. Supreme Court has distinguished post-conviction punishment from pre-trial bail and detention, for the same reasons that Blackstone did over 250 years ago: Pre-trial “imprisonment…is only for safe custody, and not for punishment.”
If an aspect of pre-trial detention is punitive, the remedy lies not in equal protection, but due process. In 1956, the U.S. Supreme Court, led by then-Chief Justice Earl Warren, made “a significant effort to alleviate discrimination against those who are unable to meet the costs of litigation in the administration of criminal justice.” In Illinois, criminal defendants could obtain a trial transcript for appellate review from the state for a fee. The Court decided that the fee effectively barred indigent defendants from receiving adequate appellate review and so held that requiring them to pay the fee was unconstitutional. Since then, “a few relevant Supreme Court precedents” have treated the “unequal impact of certain state activities on indigents as ‘invidious discrimination’ forbidden by the Fourteenth amendment.” But “the Court’s reasoning is not explicit” in these cases. The Court simply raises “a concern that the poor not be denied access to certain privileges available to those who can pay.” In 1983, the U.S. Supreme Court in Bearden v. Georgia suggested sweeping those few cases into a due-process framework, in part because “indigency in this context is a relative term rather than a classification, [so] fitting ‘the problem of this case into an equal protection framework is a task too Procrustean to be rationally accomplished.’”
Since 1956, the Court has clarified that equal protection is not the panacea for economic and social welfare concerns that some bail-reform advocates wish it to be. The Equal Protection Clause says that states cannot “deny to any person within its jurisdiction the equal protection of the laws.” For laws concerning economic status, equal protection jurisprudence merely requires the government to provide a “rational basis” for its policies, and “it hardly can be said that” money-bail statutes operate “without rational relationship to the legislative objective of securing the presence of the accused upon trial.”
The Supreme Court has rejected arguments that heightened scrutiny is required when laws permit different outcomes based partly on differences in material circumstances. To the contrary, as Bearden itself shows, the Court has been unwilling to wield the Equal Protection Clause to turn our capitalist society into a socialist one. It “confers no substantive rights,” so it cannot provide an absolute right to release on bail that the Bail Clause itself denies. Thus, equal protection challenges to money-bail statutes are “virtually certain to result in victory for the government,” and naysayers have fifteen centuries of history to refute.
The Supreme Court has also rejected the notion that the Due Process Clause provides a “backstop” whenever the meaning of a constitutional provision explicitly addresses a party’s claim and prevents that party’s desired outcome. “Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a specific sort of government behavior, ‘that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’” The Court’s jurisprudence thus flatly rejects the position held by the Obama Justice Department, that it is unconstitutional to set bail that indigent defendants are unable to pay. Neither the Equal Protection Clause nor the Due Process Clause offer a hidden path around the Bail Clause and its clear historical meaning.
If, alternatively, the argument is that present inability to make bail prolongs pre-trial detention, and that prolonged detention may prejudice the indigent detainee’s case, then the argument is misdirected. The concern in such a situation cannot be an existential challenge to money bail, but rather ought to be a specific complaint directed against a party who causes delay, either the prosecutor or the judge. Although it is true that due-process violations may sometimes require a court to dismiss an indictment, that would require the defendant to show much more than a mere lapse in time. He must prove that a state actor caused the delay, that the delay “caused substantial prejudice to appellees’ rights to a fair trial[,] and that the delay was an intentional device to gain tactical advantage over the accused,” or the official otherwise acted in bad faith. In practice, only extraordinary cases pass this test.
No Consensus. In spite of that clear jurisprudence, former U.S. Attorney General Eric Holder wrote to Maryland’s Attorney General, Brian Frosh, “Courts across the country have invoked” U.S. Supreme Court precedent “to find that wealth-based pre-trial detention schemes are unconstitutional.” He supports that claim by citing three cases, one each from South Florida, South Mississippi, and Alabama—hardly “across the country”—and none finding wealth-based bail to be unconstitutional.
The court in the Florida case affirmed the constitutionality of Florida’s money-bail scheme. The Mississippi court reiterated there is no “absolute right to release on bail” under the Fourth or Eighth Amendments or “even under the strict judicial scrutiny directed at state bail procedures for Fourteenth Amendment purposes.” Holder writes that the third case, Alabama v. Blake, “also [found] that a wealth-based pre-trial bail scheme ‘violates an indigent defendant’s equal protection rights guaranteed by the United States Constitution.’” While the court in Blake held that a particular state rule of pre-trial procedure violated due process under the Alabama and U.S. Constitutions, it explicitly noted that the scheme contained a severability clause and affirmed that it is constitutional for “a judicial officer to require monetary bail as a condition of release in appropriate cases.”
Money bail has deep historical roots in Anglo-Saxon law and custom. Bail emerged to solve a problem we still grapple with today—balancing the general right of defendants to pre-trial freedom with the need of society to protect against flight and ensure punishment. In the United States, defendants have a right to reasonable bail, but Congress and state legislatures can define which crimes are, and are not, considered bailable. With respect to individuals charged with crimes that are considered bailable, the Eighth Amendment provides protection from excessive, but not unaffordable, bail. In certain limited circumstances judges can order pre-trial detention in the name of public safety.
The Supreme Court has repeatedly rejected constitutional challenges to the use of money bail in the United States. To the extent that arguments can be made against its use today, they are ordinarily policy questions, not legal or constitutional issues. Nevertheless, reformers are taking their arguments to court, misconstruing judicial precedent and misrepresenting facts and history in a “Hail Mary” bid to see money bail declared unconstitutional. Rather than contort the text of the Constitution to achieve their policy goals, advocates for bail reform should make their arguments to legislators and the public, the proper venues for this discussion.
Some Experts Warn That Joe Biden’s Cashless Bail Policy Is A Prescription For More Anarchy
As rioters and looters have turned many American cities into mob turf, ostensibly to express their outrage at the criminal justice system and law enforcement, Joe Biden and the Democrats’ cashless bail policy has already added fuel to the infernos in places like Minneapolis and New York. Many crime experts are warning that the cashless bail approach being advanced by Biden is only going to further destabilize the criminal justice system if implemented nationwide. This monumental shift in our legal system is likely to have profound implications on public safety, and here’s why it’s important to understand the unintended consequences of cashless bail.
For the past few years, the drumbeat to rid our legal system of cash bail has been a Democrat talking point in an effort to end what they argue is the criminalization of poverty. Because the rich can afford their bail, and the poor cannot, Democrats contend, imposing bail is simply not a fair application of justice and must be eliminated. While that mantra plays well to the Democrat base, the reality is more complex and the outcomes are likely to be long lasting in a country where rule of law is hanging by the thinnest of threads.
To understand how cashless bail would alter our legal system, here’s a look at how it currently works throughout most of the country. When a person is arrested, that person is then released in exchange for money or collateral that the court holds until all proceedings and trials surrounding the accused are complete. It’s a security, generally posted by a friend or family member. It also may include putting up a piece of property that the government could foreclose if the person flees. Or it could be a bond dealer posting bond for the charged in exchange for a fee. The court banks on the accused showing up for his or her court date to recover the bail. If they don’t appear, they forfeit the bail and law enforcement or others pursue them to return them to court. Does Dog the Bounty Hunter ring a bell?
Since trials can take place many weeks or even months after arrest, if not for bail, many of those arrested—including those who may be innocent, would have to remain in jail until their trial begins, being deprived of a job and connection with family and friends at the very least. The amount of bail depends on the severity of the crime, past criminal record and risk of flight. If that risk or danger to the public is considered too high, bail might be denied altogether.
In addition, bail often consists of a litany of other non-monetary factors, like whether the accused exhibits good behavior, such as abstaining from illegal drugs or alcohol. It may also involve electronic monitors or other correctional technologies. Bail, in short, is not accurately characterized as the “cash bail system” as critics would say. A judge doesn’t just assign a number on a crime and let it stand. The process of determining bail is far more complex and nuanced while being administered by elected or appointed judges who are generally the most qualified to assess a defendant’s risk to society.
“In America,” says bail expert Jeffrey Clayton of the American Bail Coalition, “everyone has a constitutional right to bail—to have an amount of bail set by judges who assesses the merits of each case. The Eighth Amendment, which forms part of the Bill of Rights, provides access to bail insofar as excessive bail may not be required. Most state constitutions provide that all persons shall be bailable by sufficient sureties, an even more expansive guarantee than the federal constitution.”
But what of the Democrat’s concern that the system discriminates against the poor? “The reality is that in order to prevent there being excessive bail as required by the constitution,” says Clayton, “a judge has to look at the defendant’s financial resources, which they do daily across this country.”
A $1 million bail for Martha Stewart might be a $1,000 bail for someone who is at the poverty level. “Judges also look at three other factors,” says Clayton, “the degree to which the defendant will flee from prosecution, obstruct the criminal justice process, or be a danger to public safety. In other words, a person’s individual situation is what guides a judge’s assessment to determine bail—one size does not fit all.”
Bail reformers, however, including Joe Biden and Kamala Harris, have instead decided that no one should have to post bail at all. “Biden and Harris are saying we’re just going to ban it,” says Clayton. “If a judge finds that there is a serious risk of re-offense and flight in an arson case and imposes a $250,000 bail, that person will walk under the so-called ‘cashless bail system.’ A judge can require all the electronic monitors he wants, but that person will not remain in jail pending trial even if they are a flight risk, danger to the community and are likely to obstruct the criminal justice process. In fact, most states are only able to deny bail in very limited circumstances—generally capital murder cases—thus nearly every criminal defendant is getting out for free under Biden’s cashless bail system. Does anyone really think most Americans favor this?”
Many crime experts warn that this approach will further compromise public safety. “You can bet that this approach will only embolden repeat offenders,” says Patricia Wenskunas, Founder and CEO of Crime Survivors, a victim advocacy group. “These are the criminals who remain the greatest threat to public safety in the first place and letting them walk to victimize a community again is morally bankrupt.”
“Imagine a domestic abuser being released back into society without having to cool off before seeing a judge,” says Wenskunas. “What about repeat DUI offenders? Under cashless bail, they’ll be able to grab their keys and hit the road until they finally kill someone. What about rioters and looters? They’ll be out before the riot is over as we saw in New York where these thugs re-joined a riot after getting out on the cashless bail system implemented in that state. Rapists and sex offenders will get out for free as well. Of course, if you hit a police chief in New York City (such as the attack on NYPD Chief Terence Monahan last month), same result—get out of jail free. With all that’s happening in this country from COVID to rampant crime, people are distracted but need to wake up to the reality of what’s coming if cashless bail becomes the law of the land. If you think it’s bad now…just wait.”
Fox News host Dana Perino broke down in tears Thursday while speaking with a domestic violence survivor from Illinois whose 18-month-old son was shot to death by her estranged husband after he returned from jail without having to post bail.
Cassandra Tanner Miller has become an advocate for stronger bond conditions as Illinois and other Democrat-run states push to weaken such conditions under the pretense of “social justice” efforts.
Tanner was home with her 9-year-old daughter, Camryn, and son Colton when the children’s stepfather, Christopher Michael Miller, broke into the home on Sept. 21, 2019.
Miller was released from jail on something called an “I-bond,” which allows a person to leave jail without paying any bail as long they promise to return to court for their hearing.
“Are you all ready to die?” asked Tanner, who was supposed to be in court at the time.
Her daughter, who attempted to protect her younger brother, was bitten, strangled, and nearly tossed off the second-floor railing.
Although Tanner and her daughter were able to escape while Miller was reloading a gun, Tanner’s 18-month-old was shot 10 times in the head and killed.
After speaking to the mother, Perino broke into tears over the tragedy (video below).
“You’re a survivor and a mother,” Perino told Tanner, becoming emotional. “Thank you for sharing your story and I hope the governor is listening.”
“Trace, I don’t think I’ve ever cried on TV,” Perino said to her co-anchor Trace Gallagher. “That was really hard.”
Perino noted that Tanner’s story is unfortunately replicated across the country. “And I understand that there is concern that cash bail has hurt segments of the population, that minorities are hurt more, but we also have to think about these victims,” she urged.
Tanner recently met with Democratic Illinois Gov. J.B. Pritzker in hopes to dissuade him from signing HB 3653, though the governor ignored her warning and signed the bill.
“He absolutely let me down,” the mother said. “I made a plea to him prior to him signing this bill and to hold off and to actually think about victims. … He completely failed the entire domestic violence community.”
The Illinois Republican Party has called HB 3653 “an outgrowth of the ‘defund police’ movement.”
“With the ending of cash bail, HB 3653 mandates the immediate release of persons arrested for burglary, arson, and kidnapping onto our streets while they await trial,” a statement from the Republican groups said.
“It is no surprise that in a recent statewide poll of law enforcement, 66% of police officer will now consider retiring early. Standing firmly behind the thin blue line, Illinois Republicans are appalled at the signing of this bill representing an all out attack on both public safety and the brave men and women who provide it.”
As noted by Fox News, Pritzker has defended the bill as “a substantial step toward dismantling the systemic racism that plagues our communities, our state, and our nation and brings us closer to true safety, true fairness, and true justice.”
If there ever was an argument against eliminating the cash bail system, this is surely is one. Sometimes I believe that Politicians and radicals have no idea what effect their actions have on the common man. I also feel that they truly don’t care what these actions have.
The Real Conclusion
After researching this article, it looks like the trend to end cash bail will only grow. Many have said that this an unfair system, that favors the rich over the poor. Even in the bail system, Judges could refuse bail for extreme circumstances. That has not ended. With the current cash bail system, there is nothing stopping a criminal after he gets out on bail, to either commit another crime or skip the area to get out of a court appearance. That still holds true with the with ending bail. People are still required to stay within a certain distance, until the court trial or hearing. So nothing really changes, except that you are putting bail bondsman out of work, and are reducing revenues into the court system. But when did the justice system become a for profit system? I thought it was all about putting guilty people behind bars, and protecting the innocent? In our country you are innocent until proven guilty.
Under the old system, if you could not afford bail, you had to sit in jail until the court case. If you were found guilty, the time you were held in jail counted towards your sentence. Not very helpful if you were found innocent. And what about the time you spent in jail, and your loss of work and pay. People have lost their livelihood waiting for their trial. Poorer people have had to put their mortgages up to pay bail. If they were found innocent, they got the money back. But what about if they were found guilty? What happened to that bail money? The answer is: If the defendant is found guilty, the bail is also kept. When using a bail bondsman, however, the money is never returned. This is because the percentage of the fee paid to the bail bondsman is non-refundable. It seems under the old system that everybody made out pretty well, with the exception of the accused.
In this article I also discussed ways to reform the existing bail system. To my belief in any system, there needs to be a way to protect the innocent. I don’t believe this has ever been addressed adequately. It is my hope with all this discussion of the cash bail system, that it will be finally updated and made fairer.
dailywire.com, “Perino Breaks Down Over ‘Bail Reform’ Tragedy: ‘Don’t Think I’ve Ever Cried On TV’,” By Amanda Prestigiacomo; jvelasquezlaw.com, “CASH BAIL SYSTEM IS UNDER ATTACK,” By Velasquez & Associates; heritage.org, ” The History of Cash Bail,” By John-Michael Seibler and Jason Snead; globalcitizen.org, ” Bail Reform: 6 Myths And Misconceptions About Cash Bail, Busted: Eliminating the cash bail system does not mean that communities will become less safe,” By Daniele Selby; forbes.com, “Some Experts Warn That Joe Biden’s Cashless Bail Policy Is A Prescription For More Anarchy,” By Chris Dorsey; americanprogress.org, ” What You Need To Know About Ending Cash Bail: What’s Wrong With Cash Bail and How To Fix It,” By Lea Hunter;
Bail Reform: 6 Myths And Misconceptions About Cash Bail, Busted
Approximately 465,000 people in jails across the US have not yet been convicted of a crime, according to the Prison Policy Initiative. And many of them remain in jail for days, weeks, or even years simply because they cannot afford their bail.
In order to avoid spending long periods in jail — unable to go to school or earn income — many people plead guilty. And while they may get out of jail faster, they also go home with a criminal record. But even just a few days in pretrial detention can cost people their jobs and housing, and takes them away from their families and communities, which can have long-lasting effects.
Today, cash bail, initially intended to ensure that defendants appear for their court dates, is instead perpetuating poverty cycles in the United States, and further disenfranchising poor communities of color, who are arrested and incarcerated at disproportionate rates.
Still there are many misconceptions about what reforming the cash bail system would look like. Below, we clear some of those up.
MYTH 1: There’s no need to reform the cash bail system because bail is set at fair and affordable amounts.
Kalief Browder was accused of stealing a backpack in 2010. He was arrested and his bail was set at $3,000, a sum he and his family could not afford. Browder, then 16, spent three years in jail on Rikers Island in New York City without ever being sentenced. He died by suicide in 2015 not long after finally returning home.
In 2017, a senior citizen in San Francisco, California, had his bail set at $350,000 for allegedly stealing a bottle of cologne and $5 from his neighbor. He remained in jail for more than 250 days before being convicted because he could not afford his bail.
Randall McCrary, a mentally ill man in Atlanta, Georgia, was arrested that same year for disorderly conduct and his bail was set at $500. Unable to afford that amount, McCrary languished in jail for over two-and-a-half months, during which time the government discontinued his disability support, the New York Times reported.
These stories are far from uncommon.
The median bail set for felony charges is $10,000, despite the fact that 4 in 10 Americans would not be able to come up $400 in an emergency, according to the Federal Reserve.
In 2015, the median annual income of a person in prison prior to being incarcerated was about $15,000, which reflects an even greater issue: Americans born into families living in poverty are more likely to be incarcerated.
Simply put: the American cash bail system makes it a crime to be poor.
MYTH 2: “Violent offenders” will be free to “roam the streets.”
Cash bail has not been proven to keep communities safer; in fact, it may do the opposite.
More than a dozen prosecutors from around the country wrote to New York Governor Andrew Cuomo this March, urging the state to end cash bail. “Research shows that people who spend even a short period in jail, as opposed to being released pretrial, are more likely to commit a future crime,” the letter said.
“This makes sense. Jail is traumatizing. Jobs are lost. Families can’t pay rent. For reasons big and small, people who are away from their family, their job, and their community become more vulnerable and less stable. That makes all of us less safe.”
While eliminating the cash bail system would allow most people accused of a crime, though not yet found guilty, to be released until their trials, most reform proposals and bills do include safeguards.
On March 31, New York passed a bill eliminating the use of cash bail for most misdemeanors and non-violent crimes, which make up the majority of charges. But the bill also included measures that would enable better criminal discovery and speedy trials — such measures are an expansion of pretrial services that would help ensure both greater safety and fairness for all. These changes are scheduled to take effect in New York on Jan. 1, 2020.
Other states that have ended or are shifting away from the use of cash bail — including New Jersey, Kentucky, and Arizona — have replaced the system with various risk assessment tools. Judges can use this tool to decide whether to “remand” higher-risk defendants, meaning hold them in jail until they are arraigned, or release them with supervision. Defendants released under supervision are typically subject to requirements like GPS-monitoring ankle bracelets and drug tests until their hearing, but no bail.
However, these tools are not without flaws. While they rely on data to determine a defendant’s risk of skipping their court date and their “dangerousness,” critics of these tools, including the ACLU and NAACP, point out that they can produce racially discriminatory and gender biased results because they rely on flawed data.
For example, in Broward County, Florida, risk assessment algorithms were more likely to rank black defendants high risk than white defendants — not because the algorithm factors in race, but because of the deeply rooted bias and systemic inequality that leads people of color to be arrested at higher rates, the New York Times reports. And it’s this history of arrest, whether ultimately found guilty or not, that the algorithm considers.
Instead cash bail reform advocates emphasize the need to hold individual hearings to determine whether to release or remand those accused of violent crimes and to incorporate input from communities into the development of risk assessment tools.
Governor Cuomo’s current bail reform proposal moves away from the more controversial uses of risk assessment tools, toward establishing a more equitable and effective pretrial system, and has been praised by criminal justice advocacy groups like the Vera Institute.
MYTH 3: People are more likely to skip their court dates without bail.
Washington, DC, largely moved away from the cash bail system nearly three decades ago, and yet the overwhelming majority of defendants have shown up for their appointed court dates, the Washington Post reports.
The city released 94% of people arrested without bail in 2017 — and 88% of those people made every one of their court dates, DC Judge Truman Morrison told NPR. That’s likely because many people who miss their court dates in the first place aren’t “on the run,” according to the Appeal, a criminal justice-focused media outlet. More often, defendants who “fail to appear” at their hearings are unable to afford transportation, child care, or simply forgot.
MYTH 4: Crime rates will increase if cash bail is abolished.
Since eliminating its cash bail system in 2017, New Jersey has actually seen crime rates plummet. While experts can’t say for sure if the bail reform measure directly caused the decrease in crime, the data shows eliminating cash bail has not led to an increase in crime as some opponents of cash bail reform had predicted, WNYC reported.
MYTH 5: Eliminating cash bail will put crime victims in danger.
Critics of bail reform have said that overturning the system will particularly endanger victims of these alleged crimes; however, crime victim advocates have also joined the call for cash bail reform.
In New York, victim advocates actually participated in efforts to reform the system before the bill was passed in March, and supported the justice reform package put forward by the bill.
Additionally, crime victims in the US are more likely to come from low-income communities and be people of color — their communities are often the same communities that disproportionately feel the negative effects of the cash bail system. Pretrial detention and cash bail also place an incredible strain on the family members and loved ones of defendants, so reforming cash bail could actually have positive effects on these communities as a whole.
MYTH 6: Bail reform will be expensive and cost taxpayers large amounts of money.
While it’s true that cash bail reform won’t come cheap, if done well, it should save state and local governments money over time.
About $14 billion of taxpayer money goes toward supporting pretrial detention every year, the Pretrial Justice Institute reports.
Most reform proposals that advocate for ending cash bail also include proposed measures to establish better pretrial services and reduce pretrial detention. While increasing and improving pretrial services will cost money, such services are far less expensive than the cost of pretrial detention, according to the Harvard Law School’s Criminal Justice Policy Program.
In Los Angeles County, pretrial detention costs about the city about $177 a day per person, while releasing the defendant, even with conditions, costs $26, at most — meaning cities could save millions of dollars every year by eliminating the cash bail system.
City Controller Alan Butkovitz reported that Philadelphia could save over $75 million a year by reforming its cash bail system. Bail reform measures in Ohio could similarly save the state an estimated $67 million, the Washington Post reported.
What You Need To Know About Ending Cash Bail
What is cash bail?
Three out of 5 people in U.S. jails today have not been convicted of a crime. This amounts to nearly half a million people sitting in jails each day, despite the fact that they are legally innocent of the crime with which they have been charged. Most jurisdictions in the country operate a cash bail system, in which the court determines an amount of money that a person has to pay in order to secure their release from detention. The cash amount serves as collateral to ensure that the defendant appears in court for their trial.
What is wrong with cash bail?
In effect, the cash bail system criminalizes poverty, as people who are unable to afford bail are detained while they await trial for weeks or even months. Cash bail perpetuates inequities in the justice system that are disproportionately felt by communities of color and those experiencing poverty.
Spending even a few days in jail can result in people losing their job, housing, and even custody of their children. Studies show that pretrial detention can actually increase a person’s likelihood of rearrest upon release, perpetuating an endless cycle of arrest and incarceration. What is more, the cash bail system often leads to the detention of people who do not pose a threat to public safety.
How can jurisdictions fix the problem?
Many jurisdictions across the United States are rethinking the way they use jails, reforming pretrial practices to ensure that defendants’ rights to be presumed innocent and treated equally under the law are preserved, regardless of their income. In ending cash bail, jurisdictions are redesigning their pretrial systems with the goal of reducing the overuse and misuse of jails. This starts with a presumption of release, which places the burden on prosecutors to prove the need for detention and limits qualifying offenses for detention to only the most serious offenses.
Although it may seem counterintuitive, sending fewer people to jail and minimizing the use of pretrial detention shows promising results toward making communities safer while shrinking the footprint of the criminal justice system and saving taxpayer dollars. Jurisdictions are also instituting practices to support defendants’ successful appearance in court, such as providing court date reminders, transportation vouchers, flexible scheduling, and on-site child care.
What is the controversy behind ending cash bail?
One common misperception is that ending cash bail and reforming the pretrial system could endanger the public even more than the status quo. However, studies of New Jersey and Washington, D.C., demonstrate that defendants’ rates of appearance for trial after reforms were implemented are similar or better to rates of appearance before the reforms. Similarly, the rates of rearrest for people who were released pretrial are comparable to those before the reforms were instituted.
An additional point of contention for policymakers seeking to end cash bail is the use of actuarial risk assessments—formulas or algorithms used to predict an individual’s likelihood of appearance at trial and their risk of reoffending pretrial. These tools premise that judges and prosecutors have too often relied on preconceived ideas and gut feelings to impose harsh pretrial conditions, including detention and exorbitant bail. But risk assessments have been criticized for a lack of transparency and validation as well as for perpetuating and exacerbating racial disparities, in large part by relying on historical, racially biased data.
In spite of these and other challenges, the movement for pretrial reform today is only gaining greater momentum. States and localities across the country are dramatically reducing or eliminating the use of money bail and rethinking their use of jails, leading to substantial reductions in unjust pretrial detention.
Who is implementing reforms?
Washington, D.C., was an early pioneer in pretrial reform, taking steps to eliminate the use of cash bail as early as the 1960s. The results have been extraordinary: 94 percent of defendants are released pretrial, and 91 percent of them appear in court for their trial.
New Jersey passed a suite of criminal justice reforms in 2016 that essentially eliminated cash bail and created a new pretrial services program. Since implementing these reforms in 2017, New Jersey saw a 20 percent reduction in its jail population. In 2017, 95 percent of defendants were released pretrial and 89 percent of them appeared at their trial date.
Harris County, Texas, home to the third-largest jail system in the country, reformed its pretrial system as part of a consent decree to virtually eliminate the use of money bail for misdemeanor charges. Prior to these reforms, 40 percent of people arrested on a misdemeanor charge were detained until their case was adjudicated. Experts estimate that reforms will result in pretrial release for 90 to 95 percent of misdemeanor defendants.
- “Bail Reform: A Guide for State and Local Policymakers,” February 2019 | A report from the Harvard Law School criminal justice policy program outlining principles for pretrial reform and highlighting jurisdictions with promising strategies
- “The Use of Pretrial ‘Risk Assessment’ Instruments: A Shared Statement of Civil Rights Concerns,” July 2018| Recommendations for jurisdictions to limit misuse of risk assessments
- “Civil Rights and Pretrial Risk Assessment Instruments,” December 2019 | A report from the MacArthur Foundation Safety and Justice Challenge discussing the use and dangers of pretrial risk assessments
- National Partnership for Pretrial Justice | A grant-funded community of practitioners working to combine research, policy development, and advocacy to reform the pretrial justice system
- National Bailout Collective | A community-based, Black-led, and Black-centered collective dedicated to ending pretrial detention and ultimately mass incarceration
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