Issues

The criminal justice system is in the midst of the “third wave” of bail reform in the United States. The current movement aims to end the ingrained practices of wealth-based discrimination in pretrial administration. The authors—civil rights attorneys who have litigated the issue of cash bond in Cook County, Illinois—have been on the front lines of this policy shift. From this vantage, we conduct a historical analysis of modern-day bail reform efforts in the “first” and “second” waves of bail reform, and examine the impact of these reforms on incarceration rates and racial disparities in the justice system. We explain how these earlier efforts both influenced and created the conditions for the third wave reforms that are now underway, including a “groundswell” of class action litigation that seeks to minimize pretrial detention by breathing new life into longstanding principles of equal protection and due process. We then analyze the impact of these third wave reforms nationwide, while using Cook County as a case study. The results suggest reason for both optimism and caution, particularly in jurisdictions where advocates have been willing to trade a more expansive scheme of preventive detention for the elimination of the cash bail system. We conclude with observations in support of a just system of pretrial release—one that relies neither on money bond nor on preventive detention measures. This system is one in which the vast majority of the presumptively innocent people charged with offenses are immediately released back into their communities. It is a system in which courts provide services rather than onerous conditions, to minimize failures to appear in court, mitigate recidivism, and ensure that communities are not decimated by unconstitutional pretrial detention. While this model is not without some societal risk, we contend it is the only tolerable outcome under our constitutional system.

A number of recent studies examining the effects of imprisonment on ex-prisoner labor market outcomes have reported sizable pre-imprisonment employment drops. The precise cause of these employment declines has not yet been identified. The present Article provides evidence that these geometric declines in employment prior to imprisonment are largely unrelated to the long-term economic trajectories of the soon-to-be imprisoned, and instead reflect the mechanical disruption of labor market activity resulting from pre-imprisonment criminal case processing, especially pretrial incarceration.

Bail and pretrial detention decisions may have important consequences for racial disparities in incarceration rates. Poor minority defendants who are unable to post bail and get released from jail before trial may be more likely to plead guilty and accept longer sentences of incarceration. Racial disparities in incarceration sentences may then reflect a combination of differences in the seriousness of a defendant’s case, criminal history, and economic resources to pay bail. This study examines the extent to which bail decision-making and pretrial detention explain Black-White disparities in criminal adjudications and sentences in the Delaware courts from 2012 to 2014. Over 80% of all criminal defendants have a bond imposed on them before their adjudication. Almost a third of cases involve pretrial detention. After controlling for measured differences in a variety of case characteristics, including severity of charges and criminal histories, cash-only bail and pretrial detention increase a defendant’s likelihood of conviction and pleading guilty, being incarcerated, and receiving a longer incarceration sentence. Bail and pretrial detention also contribute to 30% to 47% of the explained Black-White disparity in these court dispositions. Careful examination of cash-only bail, bail amount, and pretrial detention policies may help reduce racial disparities in incarceration.

Bail reform is happening. Across the country, jurisdictions are beginning to recognize that contemporary pretrial systems rooted in money bail are discriminatory, ineffective, and (by and large) unconstitutional. A common and substantial component of contemporary reforms is an increased reliance on conditional release as an alternative to pretrial incarceration. In many ways, conditional release represents an improvement over money bail, but the practice of conditional release has its own pitfalls. This Article identifies unforeseen and unplanned harms that can result from a system of conditional release and proposes five principles that jurisdictions can follow to eliminate or mitigate these harms. As the options for pretrial conditions continue to expand, judges may impose more conditions than are necessary, including conditions that are burdensome and ineffective. Because pretrial monitoring is inexpensive—especially when subsidized by user fees for pretrial monitoring—there is a risk that courts will impose monitoring and other conditions on people who would previously have been released without conditions. Taken together, these harms can prolong people’s involvement in the criminal justice system, restrict their liberty in profound ways, set them up for pretrial incarceration through technical violations, and saddle them with unaffordable debts. To responsibly use conditional release without replicating the harms of money bail, jurisdictions should adopt the following five principles. One, release on recognizance should be the norm and conditional release the exception. Two, the principle of parsimony should guide decisions over what conditions of release to impose—meaning that burdens placed on defendants and restrictions of their liberty should not exceed the legitimate interests of the government. Three, conditions should be minimal, related to the charged conduct, and proportionate to the risk of flight and pretrial criminal activity. Four, jurisdictions should not charge fees for conditional release, pretrial services, or pretrial monitoring. Five, restrictions on pretrial liberty should be evidence-based.

The problems of mass incarceration in the United States and its burdens on the economic and social well-being of local communities, counties, and states have received increased attention and have spurred conversations on prison and jail reform. More recently, reform efforts have appropriately focused on the bond system and the role of pretrial detention in fueling jail and prison overcrowding. The bond process presents a unique opportunity for reform because defendants at this stage are presumed innocent and, as the Supreme Court has affirmed, these defendants possess fundamental rights to liberty and a presumption towards pretrial release. Yet jurisdictions, such as Cook County, Illinois, overwhelmingly rely on monetary bonds and other restrictive measures to condition or deny a defendant’s release, causing many defendants to remain behind bars for months and even years awaiting trial. As recent research reveals, the use of pretrial detention disproportionately affects black defendants who are more likely to receive higher bond amounts and more restrictive conditions than white defendants facing similar charges. Meaningful bond reform, therefore, must address the role of racial bias in contributing to disparate detention outcomes for black defendants. Bond decisions are particularly susceptible to implicit bias because they often require judges to make quick, on-the-spot, complex, and predictive decisions about a defendant’s threat to the community and likelihood to reappear in court. These decisions occur when judges have very limited information about the individual defendant, leading to a misguided reliance on racial stereotypes. Effective bond reform should include the increased use of unsecured bonds instead of monetary bail as a more reliable and less restrictive means to ensure the defendant’s return to court and community safety. Jurisdictions should also demand more accountability and transparency from bond judges by requiring publicly available data on bond court practices and jail admissions. Reform efforts should further require judges to undergo training on implicit bias and the proper use of risk-assessment instruments to more fairly and accurately evaluate the risks a defendant poses if released to avoid relying on inaccurate racial stereotypes.