Toward a Just Model of Pretrial Release: A History of Bail Reform and a Prescription for What’s Next

Alexa Van Brunt & Locke E. Bowman | January 1, 2018

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.