Bail Reform Is Critical But How Should We Do It?

Bail reform seems so simple. Defendants are presumed innocent. Determine the conditions of release and get on to the next case. But reform isn’t easy. Should we eliminate cash bail? After all it is a practice that favors those with the money to get out but if you eliminate can bail will just the same number of people still be held?

Jenny E. Carroll (University of Alabama – School of Law) has posted Beyond Bail (Florida Law Review, Forthcoming) on SSRN. Here is the abstract: From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of money bail, reform movements have altered the landscape of pretrial detention. Yet little attention has been paid to the emerging reality of a post-money bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on non-monetary conditions of release. These non-monetary conditions can be problematic for many of the same reasons that money bail is problematic and can inject additional bias into the pretrial system.

In theory, non-monetary conditions offer increased opportunities for release over monetary bail and can be narrowly tailored to accomplish specific goals. Yet the proposition that such non-monetary conditions accomplish their purported goals is untested and unsettled. Pretrial release conditions are often imposed at the conclusion of a remarkably brief pretrial hearing and in a near rote fashion, with little or no evidence that the condition is necessary to avoid the risk or risks that fuel them. Defendants – many of whom are unrepresented at these hearings – may be ill-equipped financially or otherwise to comply with such conditions. Non-compliance may place defendants at risk of either additional criminal charges or future pretrial detention.

This Article argues that the reduction or eradication of money bail alone has not and will not ensure a fair and unbiased system of pretrial detention, nor will it ensure that poor and marginal defendants will benefit from pretrial release. Rather, these reforms have shifted the burden of release from paying money bail to paying fees for a laundry list of pretrial release conditions. If pretrial detention reform is to achieve meaningful results, it must address not just the most apparent barrier to release – the fee charged in the form of bail – but all barriers that promote pretrial incarceration and impose unjustified burdens on defendants awaiting trial.

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