Bail in the United States

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Bail in the United States refers to the practice of releasing suspects from custody before their hearing, on payment of money or pledge of property to the court which may be refunded if suspects return to court for their trial.[1] Bail practices in the United States vary from state to state.[2]

History of bail in the United States[edit]

Colonial and early America[edit]

In pre-independence America, bail law was based on English law. Some of the colonies simply guaranteed their subjects the protections of that law. In 1776, after the Declaration of Independence, those that had not already done so enacted their own versions of bail law.[3]

Section 9 of Virginia's 1776 Constitution states "excessive bail ought not to be required..." In 1785, the following was added, "Those shall be let to bail who are apprehended for any crime not punishable in life or limb...But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail." Section 29 of the Pennsylvania Constitution of 1776 states that "Excessive bail shall not be exacted for bailable offences: And all fines shall be moderate."[4]

The prohibition against excessive bail in the Eighth Amendment is derived from the Virginia Constitution, on which Samuel Livermore commented, "The clause seems to have no meaning to it, I do not think it necessary. What is meant by the term excessive bail...?"[5] As of 2009, the Supreme Court has not decided whether the constitutional prohibition on excessive bail applies to the States through the Fourteenth Amendment.[6]

The Sixth Amendment to the Constitution, like the English Habeas Corpus Act of 1679, requires that a suspect must "be informed of the nature and cause of the accusation" and thus enabling a suspect to demand bail if accused of a bailable offense.

In 1789, the same year that the United States Bill of Rights was introduced, Congress passed the Judiciary Act of 1789. This specified which types of crimes were bailable and set bounds on a judge's discretion in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge.[7]

The Judiciary Act states, "Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein."[7]

Bail Reform Act of 1966[edit]

Although the Eighth Amendment prohibits excessive bail, there is no inherent Constitutional right for a defendant to be offered bail in the first place. In 1966, Congress enacted the Bail Reform Act of 1966, which changes that by giving non-capital defendants a statutory right where a Constitutional right is lacking, to be released, pending trial, on his personal recognizance or on personal bond, unless the judicial officer determines that such incentives will not adequately assure his appearance at trial. In that case, the judge must select an alternative from a list of conditions, such as restrictions on travel. Individuals charged with a capital crime, or who have been convicted and are awaiting sentencing or appeal, are to be released unless the judicial officer has reason to believe that no conditions will reasonably assure that the person will not flee or pose a danger. In non-capital cases, the Act does not permit a judge to consider a suspect's danger to the community, only in capital cases or after conviction is the judge authorized to do so.[8]

The Bail Reform Act of 1966 marked a major overhaul of the bail system in the United States, forcing courts to not needlessly detain defendants. It requires that decisions consider family and community ties, employment history, and past record of court appearances. However, for those defendants who are unable to raise the required money despite demonstrating they are a minimal flight risk, the Act provides little protection. It also mandates that judges not consider the perceived threat a defendant would be to his or her community if granted pretrial release. The 1966 Act also placed greater value on lawyers, because it required lawyers to produce more information about an arrestee in the same short amount of time before a bail hearing.[9]

The 1966 Act was particularly criticized within the District of Columbia,[10] where all crimes formerly fell under Federal bail law. In a number of instances, persons accused of violent crimes committed additional crimes when released on their personal recognizance. These individuals were often released yet again.[11]

The Judicial Council committee recommended that, even in non-capital cases, a person's dangerousness should be considered in determining conditions for release. The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges to consider dangerousness and risk of flight when setting bail in noncapital cases.[12]

In 2008, the New York Times wrote "posting bail for people accused of crimes in exchange for a fee, is all but unknown in the rest of the world".[10]

Bail bond programs[edit]

The 1960s saw the rise of volunteer bail reform projects that introduced new pretrial services programs. One of the most notable bail reform projects was the Manhattan Bail Project.

Formed in 1961, the project was led by the Vera Institute of Justice with the theory that defendants with prominent ties to the community, such as a stable occupation or long marriage, could be confidently released on the strength of their promise to return.[13] This concept was later termed release on recognizance (ROR). The New York city government eventually assumed oversight of the program, although the Vera Institute of Justice design new ROR systems after defendants failed to appear. Legal professional Jerome McElroy notes that today, the Criminal Justice Agency (CJA) continues to provide ROR recommendations and oversee the status of released defendants.[13]

Another successful program was the 1968 VISTA, or Volunteers in Service to America, bail bond program in Baltimore. One of the VISTA directors, Padraic Kennedy, commented that the program was successful because it used a mathematical system of personal recognizance so that defendants would reappear.[14] The system was organized around a point-based marker, where defendants earned points for positive merit and were deducted points for poor behavior. Kennedy noted that the program was capable of becoming permanent legislation, but the status of VISTA is unknown as of today.

One project with mixed results was a research program that tested the effects of a pretrial release agency and deposit bail in New York City. Researchers Roy Flemming and Thomas Uhlman analyzed the program and commented that reform is defined by a supportive constituency and the oversight of court judges.[15] The two noted that in the case of the New York City project, the judges poorly executed deposit bail and the constituency misinterpreted bail reform as a type of preventative detention. Flemming and Uhlman concluded in a joint article that the initiative highlighted an important dilemma in that reformers need to solve the fundamental structures behind bail as opposed to specific parameters of bail law.

Current federal law[edit]

In 1984 Congress replaced the Bail Reform Act of 1966 with a new bail law, codified at United States Code, Title 18, Sections 3141-3150. The main innovation of the new law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight.[16]

18 U.S.C. § 3142(f) provides that only persons who fit into certain categories are subject to detention without bail: persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail.

The Bail Reform Act of 1984 is the most recent landmark piece of legislation passed on bail reform, an issue often unnoticed. This act served as direct refutation and override to the previous Bail Reform Act of 1966, which decreed that judges must not consider the perceived threat a defendant may be to his or her community in the determination of bail. This faced much criticism because defendants would sometimes commit crimes while waiting for trial, and many fought for the reversal of this piece of legislation. The 1984 Bail Reform Act did exactly that, stating that a judge must order pretrial detention if a defendant was deemed a risk to his or her community.[17]

The impacts of the Bail Reform Act of 1984 have been largely debated and often difficult to precisely measure. One study on the Eastern Federal District of California found that average detention length and the overall detention rate has remained relatively unchanged before and after 1984, the group most affected by the law are repeated drug offenders, and the rates of pretrial crime and failure to appear on the trial date have stayed relatively low since the law's passing.[18]

In 1987, the Supreme Court upheld the 1984 Act's provision providing for pretrial detention based on community-danger in United States v. Salerno.[19] United States v. Salerno serves as precedent that pretrial detention without bail on the grounds of an arrestee's “dangerousness” is constitutional.[20]

In 2006, the Adam Walsh Amendments (AWA) to the Bail Reform Act of 1984 was passed, in response to a highly publicized case of sexual abuse and murder of a minor. The amendments state that any persons accused of a crime involving a minor must be confined, under curfew, and must report regularly to a law enforcement agency. The AWA are regarded as an attempt by the federal government to curb sexual abuse, though its efficacy is debated. The AWA created mandatory pretrial release conditions, which many district courts have found to be unconstitutional. Critics argue that Congress should change the amendments so that the defendant has at least a chance for rebuttal against release conditions that include tracking and monitoring.[21] The critics' arguments are based on the idea that the amendments violate defendants’ constitutional rights and go against the Bail Reform Act of 1984's original intentions and principles by stripping defendants of their rights without significantly benefitting the public. Critics instead propose that the mandatory pretrial release requirements of the AWA amendments are revised to become rebuttable, rather than obligatory, in a court of law so that a defendant may argue and attempt to prove that the strict pretrial release conditions are unnecessary for his/her case.[22]

Bail may also be denied if the funds used to post the bail likely came from an illegal source. If the source of the funds is illegal, it is deemed less likely that the posting of such funds as bail will ensure the defendant's appearance in court, and hence bail may be denied. The court may order a hearing called a Nebbia hearing to determine the source of the prospective bail funds before making a decision on bail.[23]

State laws[edit]

Bail laws vary from state to state.[2] Generally, a person charged with a non-capital crime can be expected to be granted bail. Some states have enacted statutes modeled on federal law that permit pretrial detention of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.[24] Since 2014, New Jersey and Alaska have enacted reforms that have abolished cash bail for the majority of cases. These states now give defendants a supervised release or mandatory detention, with the conditions determined with a risk assessment.[25][26] California plans to eliminate cash bail entirely as of October 1, 2019, replacing it with a court-determined risk assessment of the individual defendant.[27]

As of 2008, only four states, Illinois, Kentucky, Oregon and Wisconsin, had abolished commercial/for-profit bail bonds by bail bondsmen and required deposits to courts instead.[10] As of 2012 Nebraska and Maine in addition to the aforementioned Illinois, Kentucky, Oregon and Wisconsin prohibited surety bail bonds.[28][not in citation given]

Some states have very strict guidelines for judges to follow; these are usually provided in the form of a published bail schedule.[29] These schedules list every single crime defined by state law and prescribe a presumptive dollar value of bail for each one. Judges who wish to depart from the schedule must state specific reasons on the record for doing so. For example, California uses a bail schedule system, and judges in state court are directed to refer to the bail schedule while also taking into account the defendant's criminal record and whether the defendant poses a danger to the community.[30] Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.[31]

In Texas, bail is automatically granted after conviction if an appeal is lodged, but only if the sentence is fifteen years imprisonment or less.[32] In Tennessee, all offenses are bailable, but bail may be denied to those accused of capital crimes.[33]

Some scholars have questioned why certain states do not implement certain bail reforms, but chose to enforce others. Kyle Rohrer of the University of Oregon School of Law answers this question in his paper published in the Oregon Law Review. He finds that bail reform is difficult to put into place because many judicial officers do not want to take the risk of releasing an arrestee pretrial because the defendant may never show up for his trial or, even worse, commit an additional crime while on pretrial leave. If this were to happen, the public would blame the judiciary officer, thus making judiciary officers reluctant to spearhead bail reform. Rohrer furthers; however, that the need to create vacancy in overcrowded prisons outweigh the flight risks of arrestees out on bail, he believes that states should work to employ bail reform to create a more efficient prison system.[34]

Types of bail[edit]

In the United States there are several forms of bail used, which vary from jurisdiction. "The dominant forms of release are by surety bond, i.e. release on bail that is lent to the accused by a bond dealer, and non-financial release."[35]:2

  1. Surety Bond: By a surety bond, a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions this service is provided commercially by a bail bondsman, where the agent will receive 10% of the bail amount up front and will keep that amount regardless of whether the defendant appears in court. The court in many jurisdictions, especially states that as of 2012 prohibited surety bail bondsmen – Oregon, Nebraska, Wisconsin, Illinois, Kentucky and Maine[28] – may demand a certain amount of the total bail (typically 10%) be given to the court, which is known as surety on the bond and unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail. The bail agent guarantees to the court that they will pay the forfeited bond if a defendant fails to appear for their scheduled court appearances, so the third party must have adequate assets to satisfy the face value of the bond.[36] In turn, the Bond Agency charges a premium for this service and usually requires collateral from a guarantor. The bail agent then posts a bond for the amount of the bail, to guarantee the arrestee's return to court.[28]
  2. Recognizance (ROR): When an accused is released on recognizance, he or she promises to the court to attend all required judicial proceedings and will not engage in illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless the court orders it forfeited. This is called an "unsecured appearance bond" or release on one's own recognizance.[28]
  3. Unsecured bail. This is a release without a deposit but it differs from ROR in that the defendant must pay a fee upon breaching the terms of the bail.[37]
  4. Percentage bail. The defendant deposits only a percentage of the bail's amount (usually 10%) with the court clerk.[37]
  5. Citation Release also known as Cite Out. This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken.[28]
  6. Property Bond – the accused or a person acting on his behalf pledges real property having a value at least equal to the amount of the bail. If the principal fails to appear for trial the state can levy or institute foreclosure proceedings against the property to recover the bail. Used in rare cases and in certain jurisdictions. Often, the equity of the property must be twice the amount of the bail set.[28]
  7. Immigration Bond – used when the defendant that been arrested is an illegal immigrant. This is a federal bond and not a state bond. The defendant deals directly with either the Department of Homeland Security (DHS) or the Bureau of Immigration and Custom Enforcement (ICE).[38]
  8. Cash – typically "cash-only," where the only form of bail that the Court will accept is cash. Court-ordered cash bonds require the total amount of bail to be posted in cash. The court holds this money until the case is concluded. Cash bonds are typically ordered by the Court for the following reasons: when the Court believes the defendant is a flight risk, when the Court issues a warrant for unpaid fines, and when a defendant has failed to appear for a prior hearing. Cash bonds provide a powerful incentive for defendants to appear for their hearings. If the defendant does not appear as instructed, the cash bond is forfeited and a bench warrant is issued. If the defendant shows up for their scheduled court appearances, the cash is returned to the person who posted the bond. Anyone including the defendant can post a cash bond. If the defendant posts his own bond, the Court will deduct fines and costs from the bond before returning any balance.[39]
  9. Pretrial Services – a defendant is released to the supervision of a pretrial services officer, similar to a probation officer. In most cases defendants have no financial obligation to be supervised. The Pretrial Services Programs can include phone or in-person check-ins, drug testing, court date reminders, and any other condition the judges deems necessary.
  10. Combinations – courts often allow defendants to post cash bail or surety bond, and then impose further conditions, as mentioned below, to protect the community or ensure attendance.
  11. Conditions of release – many varied non-monetary conditions and restrictions on liberty can be imposed by a court to ensure that a person released into the community will appear in court and not commit any more crimes. Common examples include: mandatory calls to the police, regular check-ins with a Pretrial Services Program, surrendering passports, home detention, electronic monitoring, drug testing, alcohol counseling, surrendering firearms.[40]
  12. Protective order, also called an 'order of protection' or restraining order – one very common feature of any conditional release, whether on bail, bond or condition, is a court order requiring the defendant to refrain from criminal activity against the alleged crime victim, or stay away from and have no contact with the alleged crime victim. The former is a limited order, the latter a full order. Violation of the order can subject the defendant to automatic forfeiture of bail and further fine or imprisonment.[23]

Criticisms of bail[edit]

Bail Reform is the concept arguing that current bail policies and legislature need to be revised and reevaluated due to its discriminatory and ambiguous nature.[41] Current bail policies tend to be discriminatory towards defendants who come from a low socioeconomic background. Current bail policies tend to be ambiguous because laws are open to interpretation thus allowing for many unjust exceptions where economic privilege overrides policy even when a defendant has a high perceived flight risk.[42] Today, the bail system relies on the security of money instead of people. Although the bail system is supposed to be based on a defendant's possibility of flight, its discriminatory and ambiguous nature proves that it is not the most effective nor just system. The recognition of these inconsistencies in the system invoke consideration for alternative solutions.[43]

Some argue that while the original purpose of bail was to ensure an arrestee's appearance in court, it currently does not fulfill that purpose, and that the main result of the flawed implementation of bail in modern society is increased incarceration rates of inexperienced and first-time offenders. In order to solve these issues, reformists argue that the bail system must be revised so that those who are known to be able to appear voluntarily at their trial are released regardless of their financial situation, and that additional steps should be taken to decrease the flight risk of arrestees out on bail.[44]

Moreover, a court's decision to grant or deny bail has a direct impact on the outcome of a criminal case. Incarcerated defendants are significantly less able to help in his/her defense for freedom in comparison to someone on bail who is unrestricted or perhaps conditionally restricted to home confinement. They are also unable to arrange meetings with suspected witnesses, and/or provide their attorney with important information about the case, thus creating logistical barriers. Furthermore, the paper finds that because more defendants are now less likely to be allowed a pretrial release, the prosecution's bargaining position is enhanced in plea negotiations, where incarcerated defendants are promised time off in exchange for their cooperation or plea of guilty.[45] People that are denied bail are more likely to plead guilty in thoughts that they will lose at trial. Those denied bail are often sentenced to longer amounts of time than those who are granted pretrial release.[45] Additionally, incarceration already has adverse effects resulting in many defendants' inability to maintain employment, access mental and physical healthcare, and engage in constant communication with their family and friends.[41]

Bail Reform is also grounded on the current state of commercial bail establishments in which there exists both benefits and limitations. Some benefits include protecting the presumption of innocence, relieve jail overcrowding, helps the courts manage case overloads, and providing some (very little) cost-saving benefits for taxpayers. Some limitations include discrimination against the economically disadvantaged, abuse of power, and a rising risk of wrongful imprisonment. Despite various reform effort, the commercial bail industry continues to thrive, making profits of $20 million in surplus profit.[46] But, the bail bonds industry has not survived because it is socially efficient, rather because the people who are making public policy decisions are heavily influenced by those profiting from the bail bonds industry. The bail bonds industry prioritizes capitalism and privatization over justice and support for defendants.

Many critics propose that the prison-industrial complex should switch to a more strict and fair system that is based upon the risk of pre-trial release, instead of being based upon resources. Current bail policies fall short of maintaining individualized and equal judicial determination of bail, are very costly to the defendant, and, in general, are of little benefit to the greater public.[47] Some critics believe that the entire monetary bail system should be replaced with release of recognizance, which allows the accused to be released after a signed promise to return and be present at trial.[48]

Samuel Wiseman, a J.D from Yale Law School and a critic of the Bail Reform Act of 1984, argues in a paper published by the Fordham Urban Law Journal that the Excessive Bail Clause of the Eighth Amendment protects criminal defendants from governmental discrimination and coercion and that the Bail Reform Act of 1984 removes these protections. Wiseman continues by stating that the Bail Reform Act of 1984 is unconstitutional because it allows judicial officer to consider certain individual characteristics of a defendant which the Eighth Amendment asks not to consider. Wiseman concludes his article with a statistical analysis of arrestees out on bail before and during the passing of the Bail Reform Act of 1984. He finds that since the passing of the Bail Reform Act, the number of pretrial detentions has risen nearly 40%.[49]

On the other hand, other critics call for a stricter enforcement of the Bail Reform Act of 1984. These critics are generally advocating for more mandatory detentions for arrestees awaiting trial. According to the Bail Reform Act of 1984, for serious crime offenders, detention is mandatory unless arrestees meet the exception of not being labeled a flight risk by a judiciary officer. In an analysis of the thirteen appellate courts that sit below the Supreme Court by Mani Walia published by St. John's Law Review, Walia concluded that in eight of these courts decisions, judiciary officers take advantage of the exception clause and give more lenient pretrial releases than they should in an effort to promote their view of fair results over the law.[50]

Bail determination[edit]

Legally, bail determination is based on four factors: seriousness of the crime, ties to the community, the flight risk posed by the defendant, and the danger posed by the defendant to his or her community. California Penal Code section 1269b provides an example of the factors courts are directed to consider.[51]

In reality, bail determination may also take into account extraneous factors. Some studies have found judicial bias, where a defendant's race, class, or gender affect bail.[52] A 1984 study found that when judges were given specific policy guidelines, people with similar convictions were given similar bail amounts.[53] There is concern that great variability across judges yields variability in decisions for identical candidates. The reason for such disparity is that different judges may assign different weights to factors such as flight risk or community ties.[54] This is an oft cited reason as to why bail reform is necessary, as ambiguity in the bail decision making process may lead to unfair and disparate outcomes.

Even for bail determination based on the danger posed by the defendant to his or her community, critics note that the government's definition of “dangerous” defendants who may not be allowed to go on bail have a tendency not to be dangerous or avoid their hearings at all, suggesting that the definition is too wide and needs to be reformed.[53]

Discrimination in bail decisions[edit]

There is reason to believe that a correlation exists between class status and bail decisions. Recent analysis of data taken from Florida bail hearings revealed that indigent defendants with public defenders were more likely to be denied bail when compared to those with retained (hired) counsel, but that when they were awarded bail, it was set lower. Several suggested explanations for this result include higher skill level of retained counsel and prison overcrowding.[55] Many prison systems face overcrowding in the modern area of mass incarceration, and setting unusually low bails appear to be the judge's way of relieving pressure for local prisons.

The current American bail system has also been accused of causing the mounting disparity between the treatment of white collar and blue collar criminals, most popularly seen in the widely publicized cases of Paul Manafort, Bernie Madoff and Marc Dreier. Madoff and Dreier, despite being huge flight risks, were granted bail simply because they had the money to pay the court exorbitant sums. This is in accordance to the current interpretation of the Bail Reform Act of 1984, which allows the wealthy to avoid pretrial detainment by paying for highly restrictive measures that ensure constant supervision. The result is that poorer citizens deemed even less of a flight risk are held in often terrible conditions, while high flight-risk white collar criminals are allowed to be confined in the comfort of their own homes. Bail reformists claim that this is a direct violation of the Fourteenth Amendment's Equal Protection Clause, which states that laws must be applied against all citizens equally.[56]

Moreover, bail policies and bail decisions have been demonstrated to be applied disproportionately harmfully against black and Latino defendants, particularly males.[57] This can be attributed to internalized racial prejudices among judges and bail officers, and also to how current bail policies fail to protect them from such discrimination. When combined with the bail system's favor towards the wealthy, it is found that people of color of low socioeconomic backgrounds suffer most in the justice system, a further violation of the Equal Protection Clause.

Test data from the bail bond market in New Haven, Connecticut, also shows the existence of discrimination based on race when bail is set for minority defendants. Specifically, black and Hispanic defendants generally received disproportionately high bail charges. In order to fight against racial discrimination, some suggest a “color-blind” bail solution that sets bail based on the average offender, regardless of race or gender.[58]

Furthermore, many advocates for placing harsher restrictions on bail enforcement and decreasing the amount of detainees out on pretrial release point to the argument that allowing bail greatly increases the risk of allowing arrestees out on bail to skip their trial. This tendency for skipping trail is known as a flight risk. However, a study conducted by Gerald R. Wheeler and Carol L. Wheeler published by the Review of Policy Research finds that this is hardly the case. The article focuses on bail reform in the United States and specifically targets the relationship between being released on bail and the flight risk of arrestees not showing up to their trial. Since many opponents of bail reform during the time believed that allowing bail would result in a decrease of arrestees showing up for their trial dates, this article tests that belief by analyzing randomly selected felony cases in Houston, Texas. The paper concluded that the flight risk of arrestees out on bail was extremely minimal, as only 2% of all defendants on pretrial leave avoided their trial date. The study also concluded that the effect of pretrial status, whether a criminal was detained or not before their trial, did not have an effect on the ultimate conviction.[59]

Bail and conviction[edit]

Attorney access[edit]

An attorney's ability to defend their client is greatly hampered when their client is placed in pretrial detainment. Jailed defendants are difficult to work with due to restricted access and visiting hours, and have minimal time with their attorneys when compared to those who are granted pretrial release. This lack of coordination between the attorney and defendant makes it impossible to craft a strong defense, given that the defendant will often lack witness coaching.[55] Defense attorneys that specialize in criminal trial have gone as far as to say that pretrial detention limits a defendant's ability to exercise his or her constitutional rights.[60]

Juror bias[edit]

In 2014, a study done over 975 New Jersey cases tracked a defendant's ability to set bail and the final outcome of their trial, and concluded that pretrial detention adversely impacts the length of sentencing in cases of conviction. That is to say, within the same offense type, those unable to post bail received longer sentences than those able to.[52] There have also been other studies that indicate that pretrial detainment sets the odds against the defendant, reducing their chance of acquittal. Attorneys attest that jurors are almost always aware of defendants' bail status, which creates an implicit bias against their client.[60]

Domino effect[edit]

Bail's purpose is to ensure that a defendant does not abscond, and it was never intended to influence the outcome of the trial or be an indicator of the defendant's guilt. It has been argued that bail decision outcomes' clear influence on the trial outcome is a perversion of the justice system, creating a domino effect that negatively impacts those that are poor and powerless. Lacking resources leads to pretrial detainment, which in turn can lead to a guilty conviction.[61]

Long-term impact[edit]

Youth[edit]

Pretrial release conditions placed on youth are largely ineffective, often increasing criminal behavior by means of violating those conditions. This means that bail conditions ultimately create a cycle of criminality, trapping juveniles into the prison system rather than helping them escape it.[62] This effect on the youth community is a large reason why activists lobby for bail reform, seeking to prevent the next generation from being trapped in the school-to-prison-pipeline.

However, in the VISTA bail bond program in Baltimore, success was achieved particularly within the demographic of adolescents and young adults ages sixteen to twenty.[14] This suggests that while youth are more susceptible to negative consequences of pretrial release conditions, they are also more receptive to positive bail reform programs.

Monetizing justice[edit]

The problem of the widest scope and currently the most pressing is the monetizing of the justice system, where the growing integration of the justice and free market systems will have far ranging effects. Academics have predicted that the current commercial bail system will eventually expand to probation and parole. Under this framework, inmates would be granted early release/parole in the same manner as bail, by putting up collateral as insurance for their good behavior. For example, the conservative, powerful, yet secretive organization American Legislative Exchange Council (ALEC) has already managed to push these changes into existence in several states across the America. The tight industry based network between bondsmen, courts, and law enforcement has already bred much corruption in the bail system, and the inclusion of parole would render the justice system entirely commercialized, leaving it rife with inequality.[63]

Commercializing justice also opens the door toward exploitation of those dealing with the court system, and bail bondsmen have become the prime example of this. Having created an extremely lucrative business based on the indigent's desperation and inability to pay bail, they are a consequence of the free market merging with the judiciary branch.[57]

Economic perspectives[edit]

Another way to approach the issue of bail reform is to look at not from a humanitarian but economic perspective. Using data from the 1981 Philadelphia Bail Experiment, a mathematically rigorous cost-benefit analysis of bail-setting was conducted, to approximate the probabilities of defendants committing crimes or absconding while on pretrial release. This study used the economic definition of socially optimal, defined to be the outcome which results in the minimum incurred cost by society. The result of the analysis revealed that the socially optimum value at which to set bail is much higher than the current average.[64] In fact, the value is closer to what average bail was before the Bail Reform Acts of 1966 and 1984, which means that the best course of bail reform would actually be regressive in nature, reverting to older bail policies. Additionally, the Adam Walsh Amendments to the Bail Reform Act of 1984 have been considered excessive in terms of both the way they treat defendants and the cost they burden the government with.[21]

Reform[edit]

The alternatives to cash bail include:

  • Release without bail: Sometimes known as "release on recognizance" (ROR). The defendant is released with a pledge to appear in court. However, the defendant is required by law to appear in court and to not interfere with the judicial process.
  • Pretrial supervision: The defendant is released but subject to restrictions (such as electronic monitoring or house arrest).
  • Compulsory detention: The abolition of cash bail has led to more (but not most) defendants being detained without an offer of release through posting bail (if they could afford it). This is reserved for serious crimes, which would normally result in bail being too high for the defendant to pay unless they were wealthy.

Abolition of cash bail[edit]

As of August 2018, two states have abolished cash bail for the majority of court cases. In 2014, New Jersey enacted reforms that took effect on January 1, 2017. All criminal defendants are now assessed with a point-based system to determine whether they should be released from custody, held in jail until trial, or subjected to alternative procedures (including house arrest, electronic monitoring, and, in limited cases, cash bail) to ensure public safety and the defendant's appearance in court.[25] Alaska adopted a similar reform in 2016, which took effect in 2018.[26]

Other proposals[edit]

Some reform proposals focus on not abolishing cash bail but reforming it. These include giving guidelines to judges or mandatory instructions to make sure cash bail is set in a more consistent way.[54] The second solution, however, presents a problem in that it reduces the justice system's flexibility, and loses humanity. Many reformists prefer a more individualized bail procedure, citing the importance of considering circumstances and how no set of guidelines can adequately and fairly address every possible scenario.[21] Fixing outcome disparity while retaining judicial flexibility remains a paradox that bail reformists have yet to solve, and is a point where many activists diverge. Another solution is to pass federal laws. This would mean amending the Bail Reform Act of 1984 to explicitly require courts to take into account a defendant's economic status.[56]

In states where no reform has yet been acted, some organizations provide not-for-profit bail bonds to allow poor defendants to be released pre-trial.

A more radical proposal is to abolish pretrial detention and restrictions entirely. This proposal is closely tied to the prison abolition movement.

Media portrayal[edit]

Brave New Films has released four short films and an 8-bit video game about the apparent connections between money bail and mass incarceration.[65]

See also[edit]

References[edit]

  1. ^ Larson, Aaron (17 May 2016). "How Does Bail Work". ExpertLaw.com. Retrieved 4 April 2018.
  2. ^ a b Zaniewski, Amanda (November 2014). "Bail in the United States: A Review of the Literature" (PDF). Massachusetts Department of Corrections. Retrieved 4 April 2018.
  3. ^ Dabney DA, Topalli V and Collins S (2005) From the hands-off era to today’s culture of control: The social construction of bail in the United States. Paper presented at the American Society of Criminology conference, Toronto, ON, November.
  4. ^ "The Avalon Project : Constitution of Pennsylvania - September 28, 1776".
  5. ^ "CRS/LII Annotated Constitution Eighth Amendment". www.law.cornell.edu. Retrieved 2017-11-30.
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