Bail in the United States
[1] Bail mechanisms were originally intended to allow someone charged with a crime to remain free until their trial (being presumed innocent) while ensuring that they would show up for it.
Some historians speculate that a shift towards the use of cash bail may have occurred with western expansion, as people became more transient and lacked connection with local family and community.
[10] When setting bail, judicial officers were required to consider a defendant's family and community ties, employment history, and past record of court appearances.
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 non-capital cases.
Unlike its predecessor, the 1984 Act law permits pre-trial detention of individuals based upon their danger to the community, not solely upon the risk of flight.
[17] In a 1987 decision, United States v. Salerno, the Supreme Court upheld the 1984 Act's provision providing for pretrial detention based on community-danger.
The use of pretrial detention at the federal level has risen from roughly 26% of defendants before 1984 (when the Bail Reform Act was passed) to 59% as of 2017 (excluding immigration cases).
The amendments provide that any persons accused of a crime involving a minor must be confined, under curfew, and must report regularly to a law enforcement agency.
Critics of the AWA argue that Congress should change the amendments so that a defendant has the opportunity to challenge release conditions that include tracking and monitoring.
Critics propose that defendants charged with offenses that trigger the AWA should be permitted to attempt to prove that its strict pretrial release conditions are unnecessary in their individual cases.
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.
[13] As of 2012[update] Nebraska and Maine in addition to the aforementioned Illinois, Kentucky, Oregon and Wisconsin prohibited surety bail bonds.
[29][failed verification] In 2021, Illinois abolished cash bail in a provision of the SAFE-T Act, which included a number of law enforcement reform measures.
[34] In August 2018, Governor Jerry Brown signed into law a bill which sought replace all cash bail with pretrial detention based on court risk assessment beginning in October 2019.
[35] The bill was opposed by both defenders of the current system and advocates for change, including the American Civil Liberties Union and Human Rights Watch.
[36] In January 2019, that coalition gathered the required signatures to prevent the bill from going into effect and put the law to November 2020 voters as a California ballot proposition.
Pretrial release can be denied by a judge after a hearing, "when it is determined that the defendant poses a specific, real and present threat to a person, or has a high likelihood of willful flight.
A core assumption underlying the system of cash bail is the idea that defendants are more likely to avoid criminal activity and attend court if they have a negative financial incentive.
Negative consequences of pretrial detention include damage to a defendant's job, loss of income, housing, family and community relationships, and custody of children.
Based upon their findings and a review of other articles that examined gender-based disparities in criminal prosecutions, the authors asserted that there is strong evidence that women were more likely than men to be treated leniently by the judicial system.
[62][63] In the high-profile cases of Bernie Madoff and Marc Dreier, the defendants avoided pre-trial detention despite huge flight risks, simply because they had the money to pay the court exorbitant sums.
[citation needed] 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 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.
[66] At the community level, pretrial detention has been found to negatively affect local labor markets, especially in areas with relatively high percentages of Black residents.
[69] 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.
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.
For example, the Manhattan Bail Project was formed by the Vera Institute of Justice in 1961, to advance 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.
The New York city government eventually assumed oversight of the program, although the Vera Institute of Justice designed new ROR systems after defendants failed to appear.
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.
[24] 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.
