PRISON FELLOWSHIP'S POSITION
The goal of pretrial detention and conditions of release should be to prevent a credible risk of harm or flight before trial.
- The Bible’s mandate to care for the poor compels believers to express concern about money bail as it is currently used.
- Given that noncash bail options produce comparable public safety outcomes to cash bail options, but without the devastating impact on the poor, jurisdictions should replace cash bail with noncash bail options such as conditions of release.
- Pretrial services should be well-resourced across both urban and rural areas, providing magistrates and judges with a range of available options to hold defendants accountable outside jail before trial.
- Pretrial incarceration should be limited to instances where the risk of harm or flight before trial is so great that no other condition will serve to protect the public and guarantee justice. A mandatory exclusion or presumption to hold without bond may be appropriate for certain egregious crimes and should be set by the legislature and enumerated in statute.
- Risk-based evaluation accomplishes the goals of pretrial detention and release better than offense-based evaluation. This approach protects the public by accounting for violent criminal history, whether a defendant is currently on bond for another charge or has a past absconding event.
- People who are detained pretrial have not been convicted of a crime and may, in fact, be innocent. Overall, however, people in pretrial detention experience more pressure to accept plea agreements to resolve their situation.
- People who are detained pretrial are significantly more likely to be convicted, receive harsher sentences, and also have an increased likelihood of being involved in the criminal justice system again.
- Being detained pretrial may result in a person losing their job, or their children may end up in foster care.
BAIL OR BOND?
Bail and bond are used differently across the nation.[iii] Some bail bonds are secured while others are unsecured. Some come with sureties and others without, and whether conditions are imposed also varies. The most common system is the money bail system, where the defendant has an obligation to the court based on financial conditions set for the purpose of protecting the public and assuring future court appearances.[iv]
THE PROCESS AND IMPLICATIONS
A bail hearing is a crucial step in the pretrial process. During this hearing, a judge or magistrate typically determines release based on the individual’s likelihood to appear in court and any public safety concerns. Policymakers and judges have debated whether defendants enjoy a right to legal counsel at these hearings. Only 10 states provide for counsel at bail hearings.[v] Most states leave to the county and city officials the decision regarding defendants’ right to counsel.
A bail hearing results in one of four outcomes:
- Bail is set at a determined amount to be paid if the person fails to appear in court or commits a new crime.
- Bail is set at a determined amount to be paid before the person is released.
- The person released on their own recognizance.
- The person is released for community supervision through pretrial services.
In most jurisdictions, an individual can appeal their bail decision, but the rules for doing so vary across the nation, and often the timeframe to file an appeal is short. To be successful in that appeal, an individual must have evidence as to why the bail set was unreasonable. This evidence may include proof of indigency or inability to pay and additional information regarding the risk of flight or harm before trial.
Individuals released—either on their own recognizance, pretrial services, or because they can pay bail—return to their jobs and families. But those unable to pay their bail face several negative consequences:[vi]
- Pretrial detention may result in an individual losing their job, or their children may end up in foster care.[vii]
- Individuals detained before trial are significantly more likely to be convicted, receive harsher sentences, and have an increased likelihood of being involved in the criminal justice system again.[viii]
The system of bail, including bonds, has a long-standing history in the United States, tracing all the way back to the roots of the country’s legal traditions in Western Europe.
Early U.S. colonies used the English system of bail, but because of different beliefs between the two nations regarding the criminal justice system and penalties, the U.S. colonies chose to apply bail laws more generously than England applied them.[ix] The Judiciary Act of 1789 established bail as the fundamental mechanism for release in America—which continues today.[x] The current system represents the third generation of bail reform.
The first wave of reform spanned 40 years, lasting into the 1960s with the Bail Reform Act of 1966. This law focused on alternatives to bail and encouraged less restrictive conditions. It also introduced the presumption of release on personal recognizance, which is built on the premise that one’s ties to the community—a stable residential address, employment, and other local obligations—ensure future court appearances.[xi]
The second round of reform came with the Bail Reform Act of 1984, which included the notion that public safety is a valid reason for limiting freedom prior to trial.[xii] It also established the procedure of holding “high risk” individuals pretrial without bail. The act faced heavy critique of the constitutional right to bail, but was upheld in United States v. Salerno in 1987 when the Supreme Court held public safety as a constitutionally valid reason for denying bail.[xiii]
The current generation of reform emphasizes the need for the use of risk assessment tools. A risk-based pretrial detention system enables a judicial official to consider the defendant’s present alleged offense in the context of the broader criminal history, demographic, and other factors that are evaluated by an assessment.[xiv] Based on the score given by that assessment, a recommendation regarding release is provided. Defendants who score as low risk are typically granted release.
Another alternative is an offense-based pretrial release system, which considers only the present alleged offense for which the person was arrested.[xv] Depending on that allegation, the defendant will be released outright, released with conditions (pretrial supervision, drug testing, etc.), or required to be held until arraignment.
New Jersey has been a leader in pretrial reform since the passage of its reform act in 2014.[xvi] The state adopted a risk assessment tool to use with individuals in the pretrial stage, and the use of that tool has confirmed that most individuals who come through the system are low-risk.[xvii] New Jersey has been able to reduce the number of people held pretrial, as well as the length of time individuals are held, without experiencing an uptick in failures to appear or crimes committed on release.[xviii] In recent years, several states have followed in New Jersey’s footsteps and taken a look at their pretrial detention processes to move away from the notion that a person is detained based on inability to pay.[xix] Today, more than 25% of individuals in the United States live in a jurisdiction that uses pretrial risk assessments.[xx] These tools continue to spread across states and counties.