Bail Research Paper

This traditional picture of bail, associating pretrial release with dollars to be paid by the defendant, represents a narrow conception of the bail function. With a history traced back to the Magna Carta, the statute of Westminster, and the emergence of English common law, bail originally had a broader meaning. Rather than denoting the practice of requiring an amount of currency or other form of financial assets from an accused for release, bail referred to the means employed to provide assurance that a person accused of a crime would face judicial proceedings. Depending on the historical epoch, this assurance could take different forms, from a person’s oath to be present to stand trial when the judge made his appearance in the village or town, to placing an individual’s property (such as cattle or other domestic animals) or the property of a close relation in the temporary custody of a local official to obtain greater certainty that an individual would be present for the judicial proceedings.

In the United States over the last century, with the growth of population centers and industrialization—and with the increasingly impersonal and anonymous nature of urban life—an individual’s word or deposit of valued property was deemed insufficient to ensure that the defendant would appear for trial and submit to the judgment of the court. As the use of arrangements once workable in smaller, more rural societies became less practical, they were increasingly replaced by the use of cash bail to guarantee a defendant’s release. The dollar became the currency for determining pretrial release or detention in America—in the form of cash bail or bond. The defendant’s prospects for remaining free during adjudication were increasingly shaped by the economics of the larger, and more urban, society. Those who remained in jail before trial were persons who could not afford to post the dollar amount that had been set, while those who gained release somehow could. Dollars became the judge’s assessment of the defendant’s trustworthiness—of the likelihood that the defendant would attend court if released. The ability to post the required cash became the determinant of pretrial release.

The emphasis on financial terms in determining pretrial release or detention also created an irresistible opportunity for private entrepreneurs to enter the judicial process. For profit, bondsmen (more formally referred to as compensated sureties) could broker the release of detained defendants who could not afford their bail by being paid a premium (usually around 10 percent of the total bail). A defendant held in custody on $10,000 bail, for example, would pay a bondsman $1,000 to gain release before trial. In an adaptation of the earlier practice of having third parties vouch for the released defendant’s appearance in court, the bondsman would guarantee the appearance of the defendant in court by putting up a surety bond. In exchange for the premium exacted from the defendant, the bondsman would in theory be responsible to the court for the defendant’s entire bail in the event the defendant fled prosecution. This practice was based on the expectation that bondsmen would act as responsible third parties and make certain their clients would appear in court—for fear of having to forfeit the total amount of bail. At the same time, based on profit motive, bondsmen would have a strong incentive to write bonds for jailed defendants—and thus facilitate responsible release—because the premiums they accepted amounted to clear earnings, as long as the defendants appeared.

Advocates of bail reform questioned this primarily financial conception of the bail function, preferring to consider the bail decision as a pretrial release decision. In making the pretrial release decision instead of focusing on the dollars required for release, a judicial officer should determine whether the individual will await adjudication of criminal charges at liberty in the community, and if so under what conditions, or remain in jail under pretrial detention. Reform measures introduced in the 1960s sought to encourage greater use by judges of nonfinancial conditions of release in pretrial release determinations. These initiatives placed great emphasis on personal recognizance release (ROR or ‘‘release on own recognizance’’) and on conditions of supervision or participation in release programs that would help to ensure the defendant’s appearance in court. Sparked by the pioneering efforts of the Vera Institute in New York City, bail reform advocates also promoted the establishment of pretrial services agencies to collect information about defendants for the pretrial release decision and to supervise them, if necessary, during the release period.

The Purposes of The Bail or Pretrial Release Decision

Harsh criticism of bail practices occurred during most of the twentieth century, dating at least from the 1920s when Roscoe Pound, Felix Frankfurter, and others studied criminal justice in Cleveland, and Arthur Beeley studied the jail in Chicago. Caleb Foote’s classic study of the Philadelphia bail system and his sequel focusing on practices in the New York courts during the 1950s set the stage for the bail reform movement of the early 1960s. The body of criticism that grew over the last century excoriated the traditional cash bail system and the use of pretrial detention it fostered. The criticism questioned the legitimacy of the uses to which the bail decision was put, the existence of its highly discretionary exercise, the fairness of its application, and, even, its effectiveness.

Three purposes of the pretrial release decision are recognized in the United States at the beginning of the twenty-first century (American Bar Association). The two principal aims, to ensure a defendant’s appearance in court and to protect the community from dangerous defendants, are related to a third, more general purpose, maintaining the integrity of the judicial process by preventing interference with victims or witnesses. The laws in many but not all American jurisdictions refer to both the appearance and community-protection aims of pretrial release decisions, if not necessarily the third purpose. However, explicit recognition of a community protection or ‘‘danger’’ agenda in law is a relatively recent development and has been the subject of debate discussed later in this research paper.

Until the last decades of the twentieth century, judges or magistrates determined whether a defendant would be confined while awaiting trial with little statutory guidance. Moreover, this allimportant liberty decision to release or confine the accused person through the device of cash bail was most often made by the lowest ranking local judicial official—sometimes a misdemeanor court judge, but often a quasi-judicial officer, magistrate, commissioner, or justice not trained in law. When guidance for that decision was provided, state and federal law concerned itself more with how (procedure) to decide bail than with why, and did not refer to a community protection goal. The language of the Eighth Amendment of the U.S. Constitution—‘‘excessive bail shall not be required’’—offered no guidance as to the purpose of bail.

In the 1960s, early proponents of bail reform argued that the only constitutionally acceptable purpose of bail was to ensure a defendant’s appearance in court (Goldkamp, 1979). Reformers were critical of the then-existing bad system that they believed operated sub rosa to confine defendants perceived to be dangerous, an unconstitutional agenda in their view. The sub rosa detention system, framed in financial terms, resulted in the confinement of a great many poor defendants, based on anticipated future unlawful conduct, and on a subjective judicial prediction of dangerousness that broadly prejudged a defendant’s guilt. At the same time, critics argued that when defendants were able to post the cash required, the cash-bail mechanism provided little incentive to defendants to return to court because their money was not refundable when paid to a bondman. To critics, cash bail and the bondsman’s fee amounted to a way for defendants to purchase their release before trial, a sort of ‘‘ransom’’ for their freedom (Goldfarb), regardless of their intentions relating to court. The petty thief might not be able to raise a small amount of bail, while the drug dealer could produce large amounts of cash quite easily to gain release. Reform-minded critics advocated a system based less on financial considerations and more on nonfinancial methods for encouraging attendance, and rejected the argument that community safety was a legitimate concern for the release decision.

Opponents of the reform position agreed that an essential aim of pretrial release decisions was to ensure court attendance. However, they insisted that the bail decision had always also concerned itself legitimately with the public safety aim of protecting the community from dangerous defendants. Proponents of the public safety agenda asserted that too many ‘‘dangerous’’ defendants were being released to commit serious crimes in the community.

The preceding 1960s debate about the legitimate purpose(s) of bail was based on competing interpretations of the historical origins of bail in English common law. In looking for guidance from case law, both sides drew on Supreme Court decisions from the early 1950s: Stack v. Boyle (342 U.S. 1 (1951)) supported the reformers’ appearance view and Carlson v. Landon (342 U.S. 524 (1952)) supported the danger prevention function.

In Stack, the Supreme Court wrote that release before trial was ‘‘conditioned upon the accused’s giving assurance that he will stand trial and submit to punishment if found guilty,’’ and that bail ‘‘must be based on standards relevant to the purpose of assuring the presence of defendants.’’ In Carlson, a (noncriminal) deportation proceeding involving the detention without bond of aliens, the Supreme Court appeared to condone a ‘‘danger’’ goal by approving the right of the state to designate classes of defendants for whom bail could be denied by statute; it found in the present case that there was a ‘‘reasonable apprehension of hurt from the aliens charged with a philosophy of violence against the government’’ (541, 542). Danger-prevention advocates interpreted the concept of ‘‘apprehension of hurt’’ as supporting their view that judges are justified in weighing estimates of harm or danger to the community in making release decisions before trial in criminal cases. The debate about the legitimacy (and constitutionality) of a danger prevention purpose of the bail decision reached a crescendo during and after the passage by Congress of the Bail Reform Act of 1966. In that landmark legislation, the only stated purpose of the pretrial release decision for accused persons was to ensure appearance in court (18 U.S.C.A. 3146(a)). A community protection aim (‘‘danger to the community or any other person’’) appeared for the first time in an American law, but it applied only to the special case of a defendant seeking release after conviction, while awaiting sentencing or appeals (18 U.S.C.A. 3146(b)).

The American Bar Association’s Standards Relating to Pretrial Release, published in 1968, mirrored the bail reform tenets and spirit of the federal legislation, but they also signaled a shift in the debate about the purpose of the pretrial release decision. Although draft standards for preventive detention based on danger were not approved by the ABA, they were discussed and included in an appendix as a model for discussion. Then, in 1970, Congress took the historic step of enacting legislation for the District of Columbia that permitted outright pretrial detention in noncapital cases of defendants posing a danger to ‘‘any other person or the community’’ (D.C. Code: 23–1321, 1322(a)). The D.C. Code was a modified version of the model outlined in the ABA’s draft preventive detention standards. The ‘‘Preventive Detention Code’’ of the District of Columbia constituted the first enactment of a law in the United States authorizing preventive detention of criminal defendants based on estimations of their possible dangerousness (Goldkamp, 1985). The D.C. preventive detention law could not have been enacted without support from both bail reform advocates as well as supporters of the public safety agenda.

The early reform advocates attacked the discretionary and discriminatory practice of detaining defendants sub rosa through manipulation of financial bail. They demanded more objective and explicit procedures. Public safety advocates demanded that danger be an acknowledged and explicit concern of the bail process. The compromise was to accept community safety as a legitimate concern but only to allow it pursuant to narrowly defined procedures and criteria. Moreover, the D.C. law was notable because it expressly prohibited detention of defendants through the use of financial bail conditions. Thus, early reformers lost the argument against the public safety agenda, but gained more explicit procedures and a detention-decision mechanism that responded more to due process concerns, and a system that did not authorize confinement on the basis of cash.

Between 1970 and 1984, a growing number of states revised their laws to permit the consideration of dangerousness at the bail stage. No court ruled authoritatively on the constitutionality of the danger agenda until the D.C. Circuit of Appeals in U.S. v. Edwards (430 A.2d. 1321 (1981)) approved the provisions of the D.C. law (Goldkamp, 1985). Shortly thereafter, Congress enacted the Federal Bail Reform Act of 1984 (18 U.S.C.A.: 3141–3156). Adapting provisions and concepts from the D.C. law, Congress revised federal law to permit detention of defendants who pose a danger ‘‘to the community or any other person.’’ In 1987 in U.S. v. Salerno (481 U.S. 739), the U.S. Supreme Court upheld the constitutionality of pretrial detention under the ‘‘danger’’ provision of the Federal Bail Reform Act of 1984. It declared ‘‘preventing danger to the community’’ to be ‘‘a legitimate regulatory goal.’’ Although laws in all states do not explicitly recognize a community safety agenda for pretrial release or have preventive detention statutes, the effect of this legal history—the second transformation of bail—has been to make danger concerns at the bail stage legally acceptable.

The Eighth Amendment of The Constitution and Defendant Rights

The Eight Amendment of the United States Constitution, which provides only that ‘‘excessive bail shall not be required,’’ offers no guidance as to the purposes of bail and the rights of defendants at bail. According to Caleb Foote (1965), bail under English law was construed as a device allowing a defendant to gain release before trial while providing assurance of attendance at court proceedings. Denial of bail, where it occurred, was reserved for those cases in which defendants were likely to flee because they were facing the death penalty. Foote argued that the Eighth Amendment of the Constitution represents an incomplete rendering of the principles of English law that gave birth to the institutions of bail and pretrial detention. Not only did English statutes enumerate the offenses under which a right to bail could be expected (it was restricted in capital cases), but the habeas corpus procedure was also a remedy for unlawful detention. In addition, the English Bill of Rights of 1689 proscribed the use of high bail as a means for securing detention. Foote reports that when these three ingredients (i.e., a specified right to bail, habeas corpus, and the excessive bail clause) were imported by the Americans, the habeas corpus remedy was incorporated under Article 1, section 9 of the Constitution, the excessive bail clause appeared in the Eighth Amendment, but a specific right to bail appeared nowhere. Thus, poorly translated from its English origins according to Foote, the Eighth Amendment contains some of the ‘‘most ambiguous language in the Bill of Rights’’ (1965, p. 969).

There are at least three interpretations of the ‘‘right to bail’’ deriving from the Eighth Amendment (Goldkamp, 1979, pp. 16–17). The first, finding no explicit reference to a right to bail in that amendment, conceives of no such right, and defers to statutory provisions to determine when bail must be set as a matter of right, and when it is discretionary. The second interpretation, in finding no explicit instruction from the Constitution or in statute, views bail as a matter of judicial discretion. The excessive bail clause, then, merely decrees that in cases in which a judge determines that bail will be set, it should not be excessive. A third interpretation finds a right to bail implicit in the Eighth Amendment and relies on a historical reading of English law for support.

This latter view, adopted by the early advocates of bail reform, is supported by the proposition that the constitutional prohibition of excessive bail can only stem from a presumption favoring the release of defendants before trial (Foote, 1965, pp. 979–981). This position assumes not only that there is a federally ‘‘guaranteed right to have bail set, but there also is a guaranteed Federal right to pretrial freedom, which may be abridged only under extreme, high-risk circumstances’’ (Fabricant, p. 312). Proponents of this interpretation point to language in Stack that (a) there is a presumption that defendants in all noncapital cases will be admitted to bail; and (b) that this presumption is based on the ‘‘traditional right to freedom before conviction’’ deriving from the presumption of innocence, as long as release is ‘‘conditioned upon the accused’s giving assurance that he will stand trial and submit to punishment if found guilty’’ (342 U.S. 1, 4–5 (1951)).

The reasoning of Stack served as the basis for the broad principles of bail reform. Indeed, this conditional right to release is reflected in the language of the Federal Bail Reform Acts of 1966 and 1984 in two ways: (a) in the presumption favoring release of defendants on personal recognizance; and (b) in the presumption favoring release under the least restrictive conditions necessary to ensure appearance. However, the community safety aim was included in the 1984 act. It and the District of Columbia’s preventive detention law specify exceptions to the release presumptions, namely, when the defendant’s release cannot be ‘‘conditioned on . . . giving assurance’’ of compliant pretrial behavior. Indeed, the presumption in favor of release is reversed for specified categories of defendants facing serious charges and posing serious risks of flight or threat to the community or other persons. Defendants in the designated categories are presumed detained, pending a pretrial detention hearing to determine whether any ‘‘condition or combination of conditions’’ will ensure appearance and public safety. At that hearing, such defendants are placed in the position of having to counter the government’s contention that they pose such a risk of harm or flight that they should remain in confinement.

Liberty Decisions Based on Prediction: Due Process Issues

Beyond the issue relating to the constitutional purposes of the bail process and the rights of defendants at bail, other serious problems are associated with the cash-based bail system. These problems derive from the discretionary and predictive nature of the bail decision, its cash-oriented form, and its problematic effects upon defendants and the community. In a period of a few minutes in a high-volume and overcrowded courtroom, and often with little information for guidance, a judge or other judicial officer in his or her discretion must weigh the risk a defendant poses of fleeing the court’s jurisdiction (thus thwarting prosecution) or of posing a danger to the community, victims, witnesses, or jurors.

Predicting human behavior is a difficult undertaking in whatever setting, and regardless of whether subjective or statistical methods are employed. In deciding pretrial release at the first judicial stage, the problem faced by the judge, challenging under the best of circumstances, seemingly requires talents of judicial prognostication. The judge must ‘‘predict’’ the likelihood that a defendant will flee or commit a crime by reasoned guess or experienced hunch. The task is made more difficult because the judge is not asked to make a broader assessment, for example, of whether the defendant will ever reoffend, but is instead required to predict more narrowly what will occur during the narrow preadjudication period. The judge, who cannot really know what will happen in the short-term future, is nevertheless compelled to make a reasonable pretrial release decision balancing the interests of the defendant with those of the community and the justice system in effective prosecution and safety.

One of the due process arguments raised by critics of pretrial detention procedures is that the ‘‘danger’’ being predicted—posing a threat to ‘‘the safety of the community or to any other person’’—is impermissibly vague in its definition. The more vague the description of danger, the more difficult for a defendant to show that he or she would avoid ‘‘it.’’ Since 1970 a growing number of states have incorporated danger provisions in statutes and constitutions (Goldkamp, 1985). The shift from statutory silence to specific mention of the danger purpose in state laws represents a movement in the direction of greater explicit recognition of that goal and represents an improvement over practices that addressed danger sub rosa. However, the danger language that has been employed in bail laws may not resolve the vagueness concerns critics have voiced. In a number of states, for example, rather general danger concerns are indicated, such as ‘‘the public would be placed in significant peril’’ (Colorado), danger to the ‘‘safety of the community’’ (Delaware), ‘‘danger to the public’’ (Vermont), or the defendant’s release would be ‘‘inimical to public safety’’ (Minnesota). Unusual danger references include a Georgia law that considers the potential ‘‘threat’’ a defendant may pose to ‘‘any property within the community,’’ while laws in at least six states allude to the possible danger defendants may pose to themselves. More specific danger references relate to ‘‘serious crime’’ (a number of states), to ‘‘physical harm to persons’’ (Florida), to ‘‘threaten[ing] another with bodily harm’’ (Minnesota), and ‘‘to protect members of the community from serious bodily harm’’ (Wisconsin). The imprecision of the danger targeted by pretrial detention not only poses a substantive problem for due process, it makes judicial prediction all the more problematic.

Reform-oriented critics of the bail process have argued that pretrial detention laws are unconstitutional and they deprive defendants of their liberty without the due process guaranteed under the Fifth and Fourteenth Amendments of the U.S. Constitution. Critics have argued that the future conduct being predicted (danger, threat to the community, etc.) is too vague, that the ability to predict at the bail stage is too error-prone, and that the criteria relied upon to make the bail predictions are often inappropriate to justify depriving an accused of liberty, given the presumption of innocence. Even under optimal prediction conditions, the ratio of incorrect to correct detention decisions ranges from about four to one to about three to one (Angel et al.).

According to critics, detention of a defendant before trial raises a presumption of dangerousness or flight risk (and, worse, of guilt) that the defendant has no means of refuting and leaves the defendant with the dilemma of having to prove the negative, that he or she would not be dangerous if released. Once confined, it is logically impossible for a defendant to demonstrate that a predicted act would not have occurred. Studies have also shown that detained defendants not only suffer the disadvantages of confinement, but are more likely to be convicted and sentenced to confinement upon conviction than their released counterparts. And reform advocates have argued that the best predictive intentions of the bail judiciary notwithstanding, pretrial detention is tantamount to punishment before trial, just as in Alice in Wonderland where punishment preceded the trial.

These due process arguments have been rejected by the courts. U.S. v. Edwards tested the constitutionality of the D.C. preventive detention law. And, in U.S. v. Salerna the U.S. Supreme Court considered a challenge to the constitutionality of pretrial detention under the federal procedures specified in the Bail Reform Act of 1984 in U.S. v. Salerno. (The Supreme Court addressed similar issues in the juvenile context in a case testing the constitutionality of New York juvenile detention law in Schall v. Martin (467 U.S. 253 (1984)).)

The courts evaluated the procedures authorized by the statutes. The procedures specified under the federal and D.C. laws include notice, a right to be present at the detention hearing, a right to be represented by counsel, a right to testify or present witnesses, and a right to confront and cross-examine prosecution witnesses. The challenged laws also list detention criteria to be taken into consideration by the judicial officer in determining whether ‘‘no condition or combination of conditions of release’’ will ensure the attendance of the defendant in court or protect the safety of the community or any other person. Schall, Edwards, and Salerno were consistent in finding that, despite the imperfections of detention decision-making and the difficulties of predicting future behavior, pretrial detention is an appropriate regulatory function and the procedures in the respective detention laws meet minimum requirements of due process.

Disparity in Bail and Detention: Equal Protection Issues

Criticism of cash-based bail practices have extended beyond questions about the fairness (and substance) of the procedures employed to arrive at a pretrial detention decision to concern regarding the disparate consequences of those practices. Bail reform advocates have argued that the discretionary cash-based system produces unfair results from an equal protection perspective, because similar defendants charged with the same offenses and with the similar backgrounds are often treated differently.

Unfettered judicial discretion in bail proceedings results in outcomes described by critics as random and arbitrary. The likelihood of detention has varied among judges in the same court and across courts, and even by a single judge over time. Studies of bail decisions have found at least as much disparity—unequal treatment of similar individuals—as was found in studies of sentencing and parole that sparked major reforms of those justice decisions (Goldkamp, 1979).

Reform advocates have targeted cash bail as the source of unequal treatment of defendants at bail. They have claimed that the cash-based charge-governed system institutionalizes economic discrimination against the poor. According to this reform perspective, the treatment of defendants has been unequal because some can afford their freedom and some cannot. Critics of such bail practices do not believe a person’s ability to afford cash bail, a reflection of economic background, is related to determining the likelihood that he or she will fail to attend court. Unfortunately, because of the economic basis of cash-based pretrial release, at least in most urban settings, racial bias is also a result. African Americans and other minorities, who disproportionately are numbered among the poorest of the poor, also disproportionately fill the jails as pretrial detainees.

This economic effect has been accentuated by the role of the bondsman, who selects those persons he would assist on the basis of profit motive. Persons without assets and ties are not viewed as good business risks and are not accepted by bondsmen, who have an economic interest in doing business with only the most reliable of defendants (those with sufficient assets). In addition, persons charged with minor crimes who cannot afford even low amounts of bail are also not accepted by bondsmen because the fees to be earned are too small.

Implicit in the equal protection criticism of American bail practices is the assertion that the two classes of accused produced through cash bail—those released and those detained before trial—are formed by inappropriate, illegitimate, or invidious distinctions (Goldkamp, 1979). Rather than finding that the dividing line between release and confinement is formed on the basis of race and wealth, a rational and fair system would shape release on the basis of factors relating to appearance and public safety. In short, a constitutional analysis of bail practices would require that the factors determining pretrial release be demonstrably and logically, if not empirically, related to the risk of flight and crime.

Bail Reform Strategies

During the last decades of the twentieth century, a number of studies examined the factors most predictive of pretrial misconduct. These studies did not find support for the conventional judicial wisdom that the more serious the defendant’s criminal charges, the greater the risk of flight or crime posed. Risk of pretrial misconduct was found to vary by charge type, but not by charge seriousness in the way generally assumed. In fact, almost the opposite of the conventional wisdom was found to apply: lower-level drug, property, and nuisance crimes were associated with higher rates of failure to appear in court and of pretrial crime; more seriously charged defendants produced relatively lower rates of failure. These actuarial studies of failure-to-appear and pretrial crime did not find that race or economic background were predictors of defendant performance on release (flight or crime), despite their association with the use of pretrial detention under the cash-bail system.

Bail reform in its first generation attacked the problem of unequal treatment at bail in two principal ways: (a) by encouraging the use of more objective criteria in the release decision process (and discouraging the traditional, unthinking reliance on the charge standard); and (b) by reducing reliance on financial bail as the principal currency of release. One of the initial goals of the pioneering Vera Institute in the early 1960s was to encourage judges not to rely on the charge standard, and to consider instead other factors reflecting on a defendant’s ties to the community, family relationships, and connections to work or study. The Vera Institute also pioneered by creating a special bail reform agency (later to be known as ‘‘pretrial services agency’’) to support the collection and presentation to the judge of information more objectively related to the risk of a defendant’s failure to appear.

The bail reform aim of making the pretrial release decision more rationally related to the purposes of bail (by improving the criteria considered by the judge) also promoted a second important goal of bail reform: to encourage greater use of ROR and other nonfinancial forms of release. The Vera ‘‘community ties’’ strategy sought to encourage a presumption that defendants should, on the whole, be released on personal recognizance. To address the cases of defendants who achieved immediate own recognizance release, bail reformers sought to further reduce reliance on cash bail through implementation of conditional release options, including release conditions requiring programs of supervision or treatment of the defendants, thus adding to the judge’s confidence that defendants would appear in court.

A third bail reform strategy, for defendants gaining neither ROR nor conditional release, encouraged use of deposit of 10 percent bail, when financial conditions were to be set. Under the ‘‘deposit bail’’ procedure, defendants would deposit with the court a small percentage of the total amount of bail (10 percent of the total), equivalent to what might otherwise have been the bondsman’s fee. When the defendant attended all court proceedings, the deposit would be refunded. Developed in Illinois in 1965, the reasoning behind this reform initiative was that the prospect of recovering bail deposited would provide defendants with a strong incentive to appear in court, in contrast to paying a nonrefundable fee to the bondsman for release. The use of non-financial forms of pretrial release and deposit bail grew noticeably through the 1960s and beyond, accompanied by a dramatic growth in pretrial services agencies modeled after the early Vera reform prototype.

Building on an analysis of the effects of bail reform, Goldkamp and his colleagues have experimented with another strategy for addressing the core problems associated with traditional bail practices in Boston, Phoenix, and Miami during the 1980s and 1990s (Goldkamp et al.). Their ‘‘pretrial release guidelines’’ experimental approach was premised on the belief that the problems with bail are linked with the unfettered exercise of judicial discretion. They argued that bail reform has been less successful than desired because it has failed to engage judges centrally in the reform process. Therefore, the guidelines strategy was designed as a self-help judicial approach, in which researchers worked with judges in a collaborative process of study and review of actual practices, followed by formulation of a set of judicial policies to serve as a presumptive decision guide for the judges or commissioners who had bail responsibilities.

The rationale for the pretrial release guidelines approach is that if members of the judiciary play a role in identifying the problem, make use of strong data to test various assumptions about the use of detention and release, and take a leadership role in shaping improved bail policies, judicial pretrial release guidelines will have a greater impact on release and detention practices than has been achieved by the bail reform movements to date. Positive results were reported in studies of judicial pretrial release guidelines (Goldkamp et al.), particularly in Philadelphia where the guidelines served as a blueprint for major system reform as well as a tool for dealing with jail overcrowding.

Bail, Release and Detention in The 21st Century

Bail practices in the United States have changed considerably in law and practice since Pound and Frankfurter excoriated the bondsmen as ‘‘anomalous’’ and as ‘‘that extra legal parasite’’ in their study of justice in Cleveland in 1922, and since Arthur Beeley found in his study of the Chicago jail that many ‘‘dependable’’ defendants who could have been released safely and be expected to return to court were held in detention merely because they were poor and unable to post the cash bail. The bail reform movement developed pretrial services agencies to assist in pretrial release decisions and encouraged greater nonfinancial release. The first generation of bail reform shaped the landmark legislation in the Federal Bail Reform Act of 1966 and transformed the way important liberty decisions were conducted. The second generation of reform built on these accomplishments and explicitly recognized the community protection agenda of the pretrial release and detention process, establishing procedures for determining pretrial detention and its review.

With much accomplished, there is also much that remains unresolved or only partly addressed. Traditional cash-based detention practices remain the norm in most non-federal jurisdictions at the outset of the twenty-first century. Few states have adopted the federal or District of Columbia models of pretrial release decision-making. And, when features of these laws have been adopted by states, they have been accepted in a piecemeal fashion, breaking key elements away from the overall reform concept, and failing to incorporate the due process framework for detention decisions in routine cases. No state that has added preventive detention procedures to determine dangerousness has adopted the District of Columbia provisions prohibiting detention through cash bail. The result is that by allowing the discretionary cash-bail system (and the use of bondsmen and their bond schedules) to continue to exist, the detention provisions remain obscure and seldom employed. The use of nonfinancial bail has increased since the 1960s; ‘‘low risk’’ defendants with strong community ties are no longer commonly held in jail. However, the nation’s historically overcrowded jails are still filled with the poorest of the poor, principally urban minorities, who are held on financial bail they cannot raise. Efforts to work with the judiciary to review and improve judicial pretrial release decisions are still rare.

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