law reform bail essay

Cornell Law Review

Online Vol. 106, Issue 1

New York Bail Reform: A Quick Guide to Common Questions and Concerns

Emmanuel Hiram Arnaud, law clerk at the United States Court of Appeals for the First Circuit and former appellate public defender in New York City.

Beulah Sims-Agbabiaka, law clerk at the Eastern District of Pennsylvania and former appellate public defender in New York City.

Cash Bail , Criminal Justice System , New York Bail Reform

In New York’s statewide court system, once someone is arrested they typically experience what can be an arduous process. For many, that process may involve time spent in jail, regardless of guilt or a conviction. At the heart of that quandary is the use of cash bail. 

Despite this decline, the use of cash bail continued affecting thousands of people across New York, prompting a vigorous state-wide debate. The aim of this essay is to provide a straightforward and digestible explanation of the new bail statute and its projected consequences for practitioners and non-lawyers alike in the midst of that debate. Part I provides a brief history of bail in the United States and New York State, while Part II provides a plain language explanation of what the new bail statute actually does. Part III discusses several questions arising from the new bill. 

To read more, click here: New York Bail Reform: A Quick Guide to Common Questions and Concerns.

References [ + ]

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The Present Crisis in American Bail

abstract. More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) post-conviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these precedents while also taking account of the troubled history of American bail, particularly during the Reconstruction Era from which the right to sue state officials in federal court for violations of constitutional rights emerged.

Introduction

In 1965, the civil rights advocate Caleb Foote foretold a “coming constitutional crisis in bail.” 1 Foote was an extraordinary law professor whose research stemmed from the multiple prison terms he served for conscientiously objecting to the draft. 2 To Foote, an opponent of Japanese internment in the 1940s and of wealth-based detention in the 1960s, the crisis in bail seemed clearly imminent. Given the Supreme Court’s recent solicitude for defendants’ Fourth and Sixth Amendment rights, 3 Foote was sure that American bail regimes were about to face intense pressure in the federal courts. And if the states followed a “snail-like pace of reform,” the federal courts would have no choice but to “force[] major change down the throats of the states by way of the fourteenth amendment.” 4

But the crisis as Foote foresaw it, one instigated and driven by the federal courts, did not come. As the Warren Court gave way to the retrenchments of the Burger era, strategic litigation in Florida spurred the Supreme Court to establish new procedural rights to prompt probable cause hearings in Gerstein v. Pugh . 5 But Pugh’s challenge against Miami’s money bail system never reached the Court; instead, it resulted in a Delphic pronouncement by the en banc Fifth Circuit. 6 The en banc majority approved of reliance on bail schedules but indicated that in practice the reflexive use of schedules might fail heightened federal court scrutiny. 7 Five separate opinions then followed, disputing each point. 8 The Burger Court subsequently rejected an as-applied challenge to a money bail system in O’Shea v. Littleton , 9 now considered a classic case of federal-court restraint. 10 The only time the Supreme Court has addressed bail since was in United States v. Salerno , 11 in which the Court upheld the outright denial of bail under the 1984 amendments to the Federal Bail Reform Act. 12

That is not to say there has been no crisis in bail. As with mass incarceration generally, pretrial incarceration exploded across the law-and-order decades of the 1970s and 1980s. 13 Estimates hold that today around sixty to seventy-five percent of all individuals in jails are unconvicted defendants awaiting trial. 14 Although it is difficult to measure with precision, undoubtedly a high proportion of these individuals are detained solely because they cannot afford the money-bail amount set in their cases. Those amounts are commonly set by courts on a slim evidentiary record in “hearings” lasting less than two minutes. 15 Money-bail systems remain the norm in state courts across the country; they are far more common than systems in which judges order a defendant’s release or detention based on flight risk and dangerousness, such as in the (comparatively small) federal criminal system. 16 Thus, the vast majority of pretrial detainees in the United States are confined because they cannot afford to post a bail amount set according to a schedule or after a perfunctory hearing. This is a reality made starkly apparent by the widely noted recent suicides of Kalief Browder and Sandra Bland, both detained because of their inability to pay a relatively small money-bail amount. 17 Pretrial incarceration on this scale has drained unfathomable amounts of human and financial capital from already marginalized poor communities and communities of color. 18

Now, five decades later, we may finally be witnessing the crisis in the federal courts that Foote foretold. In April 2017, Chief Judge Rosenthal of the Southern District of Texas enjoined the misdemeanor bail system of Harris County, Texas—the third-largest jail system in the nation—from engaging in wealth-based detention. 19 Injunctions echoing the opinion and order of the Harris County litigation have since followed elsewhere in the Fifth and Eleventh Circuits. 20 Cases pursuing similar theories are pending in district court in San Francisco and New Orleans. 21 State courts, too, have interpreted the Federal Constitution to reach similar holdings. 22

This Essay surveys the constitutional terrain of federal court bail litigation in the aftermath of ODonnell v. Harris County . Now that local bail systems are under increased federal court scrutiny, what are the key constitutional issues emerging, and where might we expect the courts to go from here? 23 Part I briefly explains three theories driving the challenges—equal protection, substantive due process, and procedural due process—and one ground notable for its absence, the Excessive Bail Clause of the Eighth Amendment. Part II then focuses on two related difficulties arising in these bail challenges: the puzzling requirements of federal court scrutiny and the interaction between bail and probable cause standards of review. What is often an abstract legal debate about “tiers of scrutiny” in constitutional law turns out to have dramatic consequences when bail systems are challenged in federal court. As a growing empirical literature demonstrates the catastrophic costs of pretrial detention on both defendants personally and on society at large, the key question in bail litigation—and the possibility for crisis—turns on the degree to which federal courts must take account of these alarming facts. Consonant with the troubled history of bail in our constitutional tradition, arising during the Reconstruction Era at the origins of modern civil rights review in the federal courts, this Essay argues that federal court scrutiny should be strict indeed.

I. constitutional grounds for challenging municipal money-bail systems

A. equal protection.

The Fifth Circuit’s analysis of Harris County’s bail system vividly illustrates why detention on money bail violates the Equal Protection Clause:

[T] ake two . . . arrestees who are identical in every way—same charge, same criminal backgrounds, same circumstances, etc.—except that one is wealthy and one is indigent . . . . One arrestee is able to post bond, and the other is not. As a result, the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration. The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart. 24

“But wait,” a law student cries, “I know this one! Wealth-based discrimination isn’t a suspect classification and triggers only rational basis review, and federal courts must defer to whatever rational basis the local government comes up with.” No doubt that is the credited answer to many a Con Law 101 exam. But often overlooked is the Supreme Court’s single exception in San Antonio Independent School District v. Rodriguez , the case establishing the general rule of rational basis for wealth-based discrimination: “an absolute deprivation ” of liberty occasioned by wealth (or indigence) triggers heightened scrutiny. 25 The Court created this exception to take account of a line of post-conviction fines cases, a line that culminated (a decade after Rodriguez ) in Bearden v. Georgia . 26

Bearden involved the incarceration of a convicted defendant who had failed to pay his fine. The Court had previously held that “the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it to a jail term solely because the defendant is indigent.” 27 But what if the detention was not quite automatic ? How much process and inquiry must a state engage in before it can impose detention for failure to pay? The Bearden Court ruled that only if alternative measures are “not adequate . . . to meet the State’s interest[s] . . . may the State imprison a probationer who has made sufficient bona fide efforts to pay.” 28 Recognizing the states’ broad penological interests, the Court nevertheless required “a careful inquiry” into factors like “the existence of alternative means” for meeting those interests. 29 Only if a defendant engaged in bad faith (i.e., he could pay the money but refused to do so) or if there were no other option discovered in the course of this careful inquiry could the state order detention for failure to pay the fine. 30

While the Supreme Court has not applied Bearden or its other postconviction fine cases to the pretrial context, the Fifth and Eleventh Circuits have. 31 And at least some courts are persuaded by the logic that Bearden ’s rule applies “with special force in the bail context, where . . . arrestees are presumed innocent.” 32 Indeed, the Supreme Court’s first modern bail opinion observed that unless the right to pretrial liberty was carefully preserved, “the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” 33 As the Court has elsewhere recognized, a detainee “is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense,” 34 another set of interests that analytically seem to have greater weight pretrial than post-conviction. Nevertheless, some courts apparently think that applying Bearden pretrial with “special force” simply means applying Bearden pretrial. The Conference of Chief Justices took this position in a recent amicus brief to the Fifth Circuit. The Conference argued that the Bearden right applies with greater force pretrial, but its conclusion called for a straightforward application of the Bearden rule: “a financial condition of release that operates to detain an indigent defendant must be based on a finding that such condition is necessary to secure the state’s interest in ensuring appearance at trial or public safety.” 35

The theory thus runs that equal protection forbids the detention of the indigent (set aside for a moment how that would be defined) 36 while the wealthy can purchase their liberty, unless the state has carefully determined that no other alternative could meet its interests. The state’s interests in the pretrial context are ensuring defendants’ appearance at future court dates 37 and, as the Supreme Court has more recently held, protecting public safety. 38 Below, I address whether and how often there might conceivably be no feasible alternative to secured money bail.

B. Substantive Due Process

For centuries, courts recognized only one legitimate public purpose for setting bail: assuring the defendant’s return to court. 39 Under pressure from the rise of organized crime and law-and-order politics, Congress in 1984 amended the federal bail statute to require judges to consider the safety of the public, of alleged victims, and of potential witnesses in setting bail. 40 In addition, Congress expanded the federal courts’ power to deny bail outright and order “preventive detention”: indefinite incarceration pending trial, no matter how many months or years trial took. 41 Many state and local jurisdictions followed Congress’s lead. 42

The test case challenging the federal bail amendment—and the only Supreme Court decision on bail since the 1980s—was United States v. Salerno . 43 “Fat Tony” Salerno was probably the least sympathetic defendant to litigate constitutional standards for pretrial detention. The boss of a New York mob family notorious for extortion, illegal gambling, and murder, Salerno was reputed to order hits by uttering a single word over the telephone. 44 If broad segments of American society could agree that anyone ought to be detained pretrial without bail, it was Fat Tony.

The Supreme Court upheld the federal bail act against Salerno’s facial challenge. The opinion by Chief Justice Rehnquist provoked stern dissents from Justice Marshall and Justice Stevens, 45 and criticism flowed from progressive quarters at the time. 46 Nevertheless, Salerno has more recently provided a powerful point of attack against money bail systems and the rampant incarceration they have fueled. 47

Salerno came right up to the precipice of engaging in a substantive due process analysis without explicitly invoking those terms. Conventionally, substantive due process doctrine recognizes that certain rights are so fundamental to the history and traditions of the United States that the Constitution protects against their deprivation unless rigorous requirements are first satisfied. 48 Under this “strict scrutiny,” “the Fourteenth Amendment ‘forbids the government to infringe . . . “fundamental” liberty interests  at all,  no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’” 49 Although never invoking substantive due process or the strict-scrutiny standard by name, the Salerno Court acknowledged the “fundamental nature” of pretrial liberty and upheld the federal Bail Reform Act because the Court found it “a carefully limited exception” to the “norm” of pretrial liberty. 50

Like Bearden , Salerno suggests substantive limits that careful tailoring may require of a detention order or detention regime. In upholding the preventive-detention provisions of the Federal Bail Reform Act, the Salerno Court noted that the regime applied only to those charged with “a specific category of extremely serious offenses,” whom Congress had “specifically found” to be especially dangerous. 51 To impose detention, moreover, the Act required a court to find, by clear and convincing evidence, that the defendant presented “an identified and articulable threat to an individual or the community” and that “no conditions of release [could] reasonably assure the safety of the community or any person.” 52

The Salerno Court also found several of the Bail Reform Act’s procedures highly relevant to its tailoring inquiry. Noting that the Act supplied detained defendants with (1) a hearing, (2) representation by counsel, (3) the ability to present evidence, (4) court findings on the record subject to a clear-and-convincing evidentiary standard, and (5) a right to an expeditious appeal, the Court sustained the Act against Salerno’s challenge that it was facially unconstitutional for denying the right to bail altogether. 53 The Court found those procedures sufficient to sustain the federal bail statute. It did not say whether those procedures would be necessary for state or municipal systems to pass constitutional muster. One federal court in Louisiana, following what we might call a strong reading of Salerno , has ordered declaratory relief against the Orleans Parish Magistrate Judge for denying defendants the procedural safeguards sustained in Salerno . 54 The judge’s appeal of that decision is pending in the Fifth Circuit.

The other major question of Salerno ’s reach beyond the federal statutory context is how courts should evaluate unaffordable bail. Salerno was denied release on bail altogether—there was no money amount he could have paid to be released pretrial. What happens when the same kind of detention is accomplished by an unobtainable bail—that is, where bail is theoretically payable, but the amount is out of the defendant’s reach? Every circuit court to squarely address the question has held that, when applying the Federal Bail Reform Act, an unaffordable bail is tantamount to a denial of bail altogether, and it requires the same procedures the Act extends to those denied bail outright. 55 Arguably, these holdings are only a straightforward matter of statutory construction, as the drafters of the federal statute were quite clear that this was their intended result. 56 The question thus remains open whether outside the federal context, courts should consider any unaffordable bail to be a de facto order of pretrial detention. The district court in Harris County applied that standard, and other trial courts have since followed. 57

A strong reading of Salerno thus means that the substantive due process analysis of a money bail system ends up in much the same place as the equal protection analysis: The government must engage in sufficient process to carefully determine whether there is any other alternative to detention for failure to pay bail. The only significant difference is that equal protection analysis turns on classifications of wealth and, therefore, might require some determination of who falls into an “indigence” classification. 58 Because substantive due process analysis turns on the fundamental nature of the right involved—pretrial liberty and its related rights to prepare a defense and be presumed innocent pending trial 59 —an unaffordable bail amount may trigger heightened procedures even if the defendant is relatively wealthy.

C. Procedural Due Process

The unartfully named “procedural due process” analysis follows a different track from substantive due process. Instead of focusing on whether a right is fundamental and therefore requires strict scrutiny protection, courts understand the Due Process Clause to protect ordinary liberty and property interests by balancing the interests of the individual against those of the state. The leading case of Mathews v. Eldridge requires courts to consider “three distinct factors”: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional safeguards”; and (3) “the Government’s interest, including” its “fiscal and administrative” efficiency interests. 60

The Supreme Court has not given precise direction on which procedures may satisfy this test with respect to pretrial defendants. Moreover, in Turner v. Rogers , the Court indicated that a lack of one procedural safeguard—such as the availability of counsel—could be made up for by the presence of others, such as notice, the ability to present evidence, and the relative sophistication of the adversarial parties. 61 The closest the Court has come to enunciating a list of pretrial process protections was in Salerno , but as recounted above, the procedures reviewed in Salerno were mandated by the federal bail statute itself; the Court did not consider whether any or all of the procedures were constitutionally required.

Thus, while a strong reading of Salerno could lead to strict scrutiny and demands that state and local governments apply the least restrictive alternative to pretrial detention for inability to pay bail, a weak reading of Salerno has led the Eleventh Circuit to conclude that local governments need only meet the Mathews balancing test. 62 On this weak reading of Salerno , the Supreme Court’s emphasis on the Federal Act’s procedures was not a substantive due process tailoring analysis, but merely a procedural due process holding in the same mode of analysis as Mathews . Nevertheless, some federal courts, including the Fifth Circuit, have found common bail systems to fail even the Mathews test because they provide insufficient notice, opportunity to present evidence and be heard, and judicial consideration of evidence on the record. 63 Considering the high costs of pretrial incarceration and the significant risk that incarceration imposes an unnecessary deprivation of liberty, even the relatively slight burdens of the Mathews test may pose a significant challenge to typical bail systems.

What is not required under procedural due process is a substantive finding that no alternative to detention is available to satisfy the state’s pretrial interests. If only procedural due process is in view, a jurisdiction could in theory continue to jail three-quarters of its pretrial population on the basis of wealth, so long as timely hearings and nominal consideration of evidence is provided. 64 For this reason, civil rights litigants tend to emphasize equal protection or substantive due process and their requirements of substantive scrutiny, while federal courts leery of engaging in substantive review seem more willing to stop short at only a procedural due process analysis.

Such courts, however, have been less than clear about the respective roles equal protection, substantive due process, and procedural due process play in their analysis. For example, in paring back the district court’s injunction in Harris County to a purely procedural order, the Fifth Circuit reasoned that the injunction “makes some sense if one assumes a fundamental substantive due process right to be free from any form of wealth-based detention. But, as the foregoing analysis establishes, no such right is in view. The sweeping injunction is overbroad.” 65 Yet the district court had reasoned from equal protection, not substantive due process. 66 Most importantly, since the Fifth Circuit affirmed the district court’s equal protection holding in the same opinion, a substantive rather than purely procedural remedy was clearly appropriate. 67

D. Excessive Bail

In all the recent challenges, the bell that largely hasn’t rung is the Eighth Amendment’s prohibition on “excessive bail.” In the 1951 case Stack v. Boyle , the Supreme Court’s first major opinion interpreting that clause, the Court held that “excessive” meant only that “bail [had been] set at a figure higher than an amount reasonably calculated” to ensure the defendant’s presence at trial. 68 As noted above, the Court later added public safety as a legitimate state interest in the setting of bail, 69 but the effect remains the same: excessiveness is understood in relation to the state’s goals, not in relation to what the defendant can afford or the consequences of an amount set beyond the defendant’s means. Judges enjoy broad discretion to determine what amount satisfies the state’s goals, and following Stack , federal courts have routinely held that “bail is not excessive under the Eighth Amendment merely because it is unaffordable.” 70

That does not mean that an Eighth Amendment challenge against common municipal bail systems would be doomed to fail. Recent scholarship by Beth Colgan on the Excessive Fines Clause convincingly demonstrates that the original public meaning of “excessive” directly related to the defendant’s means and to the consequences that would follow if a defendant could not pay a fine. 71 Colgan’s historical work and arguments could inform the interpretation of the Excessive Bail Clause since, as the Court recently noted, the two clauses “place parallel limitations on the power of those entrusted with the criminal-law function of government.” 72

To summarize, a line of Supreme Court cases about postconviction fines appears ready-made to challenge pretrial bail regimes on equal protection grounds. Applying that line would forbid detaining the indigent when the wealthy could go free unless the state could find no other alternative to assure the presence of the defendant at trial or to protect public safety. Meanwhile, the Supreme Court’s due process review of the federal bail statute seems instructive—though courts are currently divided as to what that instruction is. On a strong reading, the Constitution protects the fundamental right of pretrial liberty unless the state can, as required under equal protection, show that there is no alternative to detention available to meet its interests. On a weak reading, the Constitution protects pretrial liberty with certain (as yet undefined) procedures, but if the state offers those procedures, courts may not have to rigorously inquire into whether alternatives to detention are available to meet the state’s interest. Under Salerno , those procedures may include an adversary hearing, findings on the record by a clear-and-convincing standard, and a right of expeditious appeal.

To be sure, this survey does not exhaust potential theories for how the Federal Constitution may govern the municipal regulation of bail. The Supreme Court has, for instance, applied due process and equal protection principles expansively in cases that Judith Resnik characterizes as involving “[a]symmetrical power and high stakes,” such as when striking down filing fees to access divorce proceedings in Boddie v. Connecticut . 73 Perhaps even more surprising than the absence of the Eighth Amendment in recent bail challenges is the absence of racial discrimination claims, given the wildly disproportionate impact of mass pretrial detention on communities of color. 74 This survey, however, focuses on the arguments litigants are making in federal courts, which are necessarily more limited in imaginative range. So long as the Court disfavors racial discrimination claims based on disparate impact without ironclad proof of intentional animus, 75 litigators have steered their arguments towards the more favorable precedents on discrimination based on wealth and class. The Supreme Court has largely foreclosed the use of statistical evidence to establish racial discrimination, 76 while statistics on wealth discrimination have managed to have more sway in federal courts so far. 77

Applying equal protection and due process standards in recent challenges to state and municipal bail systems has raised two particularly thorny issues. How those issues are ultimately resolved in the federal courts will dramatically affect the trend of modern bail reform and will largely determine whether or not bail reformers can continue to proceed in federal court challenges.

II. the central difficulty: a crisis of scrutiny

A. federal court scrutiny.

The first puzzle is what level of scrutiny federal courts must use to review challenges to state and local bail systems, since the standard is far from clear in the case law. By this point, the general reader may be getting frustrated. Levels of review have not been a fashionable academic topic for some time. 78 After all, what practical difference does any of this make? When do we actually start talking about the substantive justice of pretrial incarceration?

To answer, we must turn away from the cases for a moment and consider both a truly astounding literature on pretrial bail and detention emerging in the social sciences and impressively broad-based social movements to reform bail. In the last half-decade, an unprecedented number of rigorously controlled, scientific analyses of pretrial bail systems have appeared in both social science journals and law reviews (in fact, the Yale Law Journal has published three articles on the implications of this research for pretrial detention in recent years). 79

Taken together, this literature helps to quantify just how devastating pretrial detention is for defendants. Controlling for relevant factors, detained misdemeanor defendants in Harris County, for instance, are twenty-five percent more likely to be convicted and forty-three percent more likely to be sentenced to jail than their counterparts who were released pretrial. 80 Detained defendants are more likely to lose jobs, apartments, and child custody, and some studies have suggested that pretrial detention is itself substantially criminogenic. 81 Importantly, the research indicates that all of these adverse effects are triggered by as little as two or three days of detention. 82

Moreover, recent work on the operation of incentives in the pretrial phase indicates that these costs are not only devastating but unnecessary. Charitable bail funds—which demand no cash from and therefore impose no financial incentives on their bailees—have achieved promising appearance rates with little more than low-cost text-message reminders and transportation subsidies. 83 Other empirical work shows that risks of dangerousness and flight can be successfully managed at significantly lower cost than pretrial incarceration. 84

Here, then, is the fundamental crisis of bail: If these studies make their way into the factual record of a federal court applying a searching level of review, the most common American bail systems, which casually impose detention for failure to put up secured money, are almost certain to fall. The common assumption that secured money bail incentivizes appearance in some way that other public assistance or sanctions could not completely collapses under their weight. 85 Although municipalities have employed these systems for decades all across the country, no federal court that has reached the merits under heightened scrutiny has yet sustained these systems against challenges demanding extensive remediation by the trial courts.

Harris County is the model case here. In an extensive opinion—193 pages as docketed—Judge Rosenthal reviewed not only the secondary literature discussed above, but also made-to-order studies conducted by expert sociologists and data scientists retained by the parties. She concluded that “release on secured financial conditions does not assure better rates of appearance or of law-abiding conduct before trial compared to release on unsecured bonds or nonfinancial conditions of supervision.” 86 The Fifth Circuit affirmed the district court’s factual findings, 87 and other courts are now relying on those findings as they scrutinize other municipal bail systems. 88

Judge Rosenthal’s opinion also scrutinized the record of recent bail reform occurring across the country, most of it in response to social and political movements marshalling constitutional arguments not in federal court cases but in local legislatures and other rulemaking bodies. 89 The court considered, for instance, statutory changes prioritizing release and procedurally protected and transparent detention orders over money bail in Washington, D.C., New Mexico, and New Jersey, as well as court administrative rules forbidding pretrial detention based solely on indigence in Maryland and New Orleans. 90 If the decision were written today, it could have listed even more jurisdictions with recent significant political change, including Atlanta, Chicago, and California. 91

Although it carefully stressed that “it is not a federal court’s role in any way to make policy judgments,” the district court in Harris County noted that there is a “clear and growing movement” toward questioning historical bail practices on constitutional —and not just political —grounds. 92 The court observed that reforming jurisdictions broadly divided into two camps 93 : those that anchored their reforms in the constitutional logic of the American Bar Association’s Standards for Pretrial Release , which argues that bail “must be within the reach of the defendant” 94 and those that tracked the reasoning of the Obama-era Department of Justice, 95 which argued that unaffordable bail is permissible only when a court finds that release on any other conditions would not reasonably assure the individual’s appearance. The constitutional pronouncements of the ABA, the Department of Justice, and state supreme courts and legislatures helped supply the case law, so to speak, that never developed as Foote and other reformers expected over the last five decades. The recognition in a federal court that social and political movements toward bail reform are relevant to constitutional analysis opens up room for other judges (and advocates) to also draw on political change in their constitutional analysis. 96 It also makes it easier for courts to forge new constitutional understandings in the face of decades of Supreme Court silence on the issue. In short, social movements fuel the current crisis of bail as much as the empirical studies.

Some courts appear reluctant to find that such a widespread and longstanding system of practice could have been unconstitutional and in need of the kind of strict federal court supervision required in, for instance, the desegregation cases. But given the factual findings of the federal trial courts and the widely accepted and broadly mobilized studies on which they rely, there is very little ground on which to sustain common municipal bail systems on the merits—unless the federal courts cannot develop these records in the first place. This is why, going forward, the standard of scrutiny will be critically important. The Supreme Court declined the opportunity to take up the question this term. 97 Whether or not it addresses these issues soon, it will have to do so in the years ahead. A $2 billion commercial bail-bond industry and the federal supervision of a thousand local regimes depend on it.

As noted above, the Eleventh Circuit has read Salerno as requiring only a procedural due process balancing of state and individual interests and therefore does not demand particularly rigorous procedural protections. 98 On the other hand, the Ninth Circuit, sitting en banc, is adamant that Salerno requires strict scrutiny of pretrial detention regimes. 99 The Supreme Court itself has given some indication that it views Salerno as among its strict-scrutiny cases, 100 but it has not definitively ruled so.

The Court has been even more circumspect about the equal protection analysis in Bearden . Although the parties in Bearden debated strict scrutiny in their briefing, 101 the Bearden Court refused to declare a level of review, rejecting what it called a “resort to easy slogans or pigeonhole analysis.” 102 The Court noted that in its precedents on wealth-based detention, “[d] ue process and equal protection principles converge in the Court’s analysis,” and it largely left the matter there. 103 By focusing on wealth classifications and by demanding that the state use the least restrictive alternative available to meet its interests, Bearden seems to have functionally applied strict scrutiny while adamantly refusing to say so.

Accordingly, lower federal courts have come out all over on the question of scrutiny. Some have applied “heightened” scrutiny while attempting to dodge specifying how that differs from strict scrutiny. 104 A district court in California, and now the Eleventh Circuit, found that Bearden requires only rational basis review of bail systems. 105 The district court in Harris County applied “intermediate scrutiny,” which has the advantage of compromise, applying heightened (but not the highest) scrutiny. Nevertheless, the choice is somewhat awkward since intermediate scrutiny to this point has only applied to gender discrimination and certain free speech claims. 106 In affirming the Harris County order, the Fifth Circuit ruled only that the application of intermediate scrutiny “was not in error,” given that the en banc Fifth Circuit had previously applied the Bearden predecessor cases to pretrial detention. 107 Thus, the Eleventh and Ninth Circuits have divided over the question of scrutiny under Salerno , while the Fifth and Eleventh have divided over the question of scrutiny under Bearden . 108

There are a number of good reasons to conclude that strict, or at least heightened scrutiny, makes the best sense of the Supreme Court’s precedents. If heightened scrutiny, narrow tailoring, and a substantive finding of necessity protect convicted indigent defendants, they surely ought to apply in the pretrial context, where the presumption of innocence and a defendant’s ability to prepare for trial are most vulnerable. 109 If Congress’s bail statute was constitutional because it “careful[ ly ] delineat [ed]” the circumstances in which detention was authorized, and these were limited to cases involving “extremely serious offenses,” 110 municipal systems that detain forty percent of misdemeanor defendants until the termination of their proceedings—as Harris County did—should at a minimum be subjected to heightened review. 111

The trial court in Harris County hinted that there may be another good reason to read the Supreme Court’s precedents in favor of searching review of municipal bail systems in the federal courts. In its conclusion on Harris County’s motion to dismiss, the court recalled the 1871 origins of 42 U.S.C. § 1983. 112 Now the main vehicle for litigating violations of constitutional rights by state actors, § 1983 arose from the Reconstruction Congress’s effort “to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” 113 The federal district court applied this history by cutting through the myriad procedural and jurisdictional challenges raised by the defendant county, reasoning that although

[m] ultiple and overlapping authorities may contribute to a policy of denying freedom from pretrial detention to those accused in misdemeanor cases solely because they are too poor to pay a bail bond, . . . the existence of multiple and overlapping authorities cannot, on its own, shield officers or official bodies from liability. 114

Indeed, the Reconstruction Era origins of modern civil rights law may likewise counsel strict scrutiny and a substantive finding of necessity before defendants can be jailed for inability to pay bail.

The need for federal oversight of state and municipal bail regimes was a critical spur—perhaps the critical spur—to the passage of the Reconstruction Amendments, the Civil Rights Act of 1866, and the Ku Klux Klan Act of 1871 (now more familiar to us as 42 U.S.C. § 1983). Legal historians often overlook the role of bail in southern resistance to Reconstruction. A full account lies beyond the scope of this Essay, but a couple of examples can illustrate the key point. The black codes’ infamous ban on African American ownership of firearms, for instance, was enforced by holding violators “in default of bail,” or under preventive detention as we would now call it. 115 The economic historian Jennifer Roback notes that bail was crucial to the debt peonage system erected by the southern black codes. 116 Former masters would stand surety to freedmen incarcerated on manufactured criminal charges. Freedmen were then bound by the black codes to work off their bail debt in service to their former masters. 117 The South’s postbellum attempt to reinstitute slavery, working hand in hand with its reinscription of racial hierarchy, was thus primarily a function of bail law.

In countermanding the black codes and empowering federal courts to guard against their reinstitution, the Reconstruction Congress was centrally concerned with federal scrutiny of state practices, both written and unwritten. 118 These of course included practices of bailing or detaining freedmen. 119 Anthony Amsterdam argues that, properly understood in context, the major Reconstruction acts were meant to grant freedmen broad rights of removal to federal court in order to bring as-applied challenges to the unequal enforcement of state criminal law, including discriminatory pretrial proceedings. 120 From 1880 to the turn of the century, the Supreme Court eroded the power of removal in state criminal proceedings. 121 Nevertheless, the centrality of bail to the Reconstruction legacy, including our modern § 1983, ought to stand for something more than federal court deference to any proposed rationality of unequal bail regimes that afford minimal process to defendants. One key way to uphold this legacy is to read the Supreme Court’s precedents in Bearden and Salerno straightforwardly to require heightened federal court review of allegedly unequal and arbitrary municipal bail regimes.

B. Probable Cause

A final difficulty lies in figuring out where probable cause properly fits into the system of pretrial arrest and bail, or more succinctly, what the Fourth Amendment has to do with the Fourteenth. In Gerstein , the Supreme Court ruled that the Fourth Amendment requires that a defendant arrested without a warrant appear before a neutral magistrate for a finding of probable cause “promptly” after arrest. 122 A later case defined promptness as within forty-eight hours after arrest. 123 The Gerstein Court ruled that these hearings did not require representation by counsel under the slight procedural requirements of the Fourth Amendment. In a separate passage, the Court encouraged states to experiment with how they fulfilled their various constitutional obligations before trial, noting that states could choose to combine the probable-cause hearing with other preliminary matters, such as the setting of bail. 124 The difficult question is whether the Supreme Court foreclosed the application of heightened scrutiny to pretrial detention by substituting only Fourth Amendment protections instead.

Gerstein is open to two entirely different readings. Gerstein could be read to say that only minimal process flows from the Fourth Amendment right against unreasonable seizure, because other rights are protected by other requirements , including due process and equal protection. After all, the Court majority in response to the dissent considered the finding of probable cause “a threshold right” and noted it was “in fact only the first stage of an elaborate system, unique in jurisprudence, designed to safeguard the rights of those accused of criminal conduct.” 125 On this reading, a probable-cause determination may be combined with bail setting or any other proceeding, but only if those proceedings continue to satisfy the heighted requirements the Constitution places on them, not the lower “threshold” standards of probable cause. For instance, a jurisdiction that combined the finding of probable cause with an actual arraignment would surely have to provide counsel, since the Court has long considered arraignment a “critical stage” of criminal proceedings. 126

But there is another possible reading of Gerstein . Several times in its decision the Court incautiously switched from speaking about probable cause for the arrest to probable cause for the detention without considering whether different standards ought to apply in the days and weeks after an arrest. Even as it declared the Fourth Amendment only a “threshold right,” the Court implied that this threshold right might govern the balance of interests between the state and the individual through the entire pretrial phase, “including the detention of suspects pending trial.” 127 Just two terms ago, the Court declared, citing Gerstein , that “[t]he Fourth Amendment . . . establishes the standards and procedures governing pretrial detention.” 128 In that case, Justice Kagan’s opinion for the Court expanded a right of action by a defendant arrested on false pretenses. It would be a perverse result to read the statement as a retraction of pretrial due process down to the minimal standards of the probable cause hearing, but that reading is at least theoretically available.

Indeed, the Eleventh Circuit has adopted just that reading. Viewing Salerno and Bearden through the lens of Gerstein , rather than the other way around, the Eleventh Circuit panel decided that, at least for the first forty-eight hours after arrest, pretrial detention regimes are subject only to rational basis review, and that review is presumptively satisfied if the regime meets the minimal standards of the Fourth Amendment. 129 The panel ruled that the Equal Protection Clause had no independent force in such a case, because detention within the first forty-eight hours after arrest was not an “absolute deprivation” of liberty such that the heightened standards of Rodriguez and Bearden would apply. 130

The Eleventh Circuit’s reading of Gerstein may be plausible, but Gerstein ’s post-arrest procedures scarcely provide a proper assessment for a detention that may last months or years. The Gerstein Court said little directly about duration, yet it did seem to imagine that the standards it was announcing were to apply to a relatively short period of post-arrest confinement—or as the Court put it, “a brief period of detention to take the administrative steps incident to arrest.” 131 And although it may seem intuitive that only limited due process can be provided in the hours after arrest as the state conducts its initial investigation, a categorical rule limiting due process during the first forty-eight hours after all arrests is overbroad. 132 Salerno indicated that pretrial detention should be limited to “extremely serious offenses,” a substantive limitation that can be applied immediately upon arrest and determination of the charge. 133 In fact, in practice, most regimes identify the charge and release a defendant within minutes, hours, or at most a day if the defendant can pay a prescheduled bail amount. 134 The practical reality that many wealthy defendants are able to bail out so promptly suggests that the state’s interest in administrative detention cannot be so high as to defeat equal protection challenges, even those challenging brief or early periods of post-arrest detention. After all, the adverse consequences of discriminatory pretrial detention—including its criminogenic effects—begin to mount as soon as the second day of detention. 135

The Eleventh Circuit’s crabbed reading of Gerstein has been replicated by a Fifth Circuit motions panel. 136 Yet while some federal courts may be willing to dodge the requirements of the Fourteenth Amendment by looking only at the Fourth, the Eleventh Circuit’s reading of Rodriguez is completely untenable. The “absolute” quality of a liberty deprivation cannot turn on temporality. If it did, only life imprisonment without parole would constitute an absolute deprivation of liberty; yet that was clearly not what the Court had in mind in Rodriguez or in its post-conviction fine cases, all of which involved imprisonment of limited duration. Rather, as the Court has long held in its habeas jurisprudence, “absolute” turns on the degree of confinement, and incarceration in a jail is the absolute height of depriving a person of bodily liberty. 137 In sum, despite the Supreme Court’s inattentive generalizations implying that only the Fourth Amendment governs pretrial detention, federal courts must continue to apply the full range of constitutional protections to their review of state and municipal detention regimes, as in fact the Court itself did in both Bearden (when evaluating a probationer’s arrest and detention under equal protection and due process) and Salerno (when evaluating a defendant’s pretrial detention under due process and the Eighth Amendment).

Where may the present crisis end? As the devastation of mass pretrial incarceration increasingly works its way into the public record, the federal courts find themselves at the head of a path that could lead to federal court supervision of municipal regimes that is every bit as extensive and disruptive as the desegregation dockets after Brown v. Board of Education . 138 Whether the courts will rise to meet this crisis and carry out their role as guardians of equal protection and due process against local oppression of the most politically powerless classes is perhaps doubtful. 139 Already, appellate courts are finding ways to look past the mounting evidence of rampant inequality and human rights violations in pretrial incarceration in the name of “flexibility and experimentation” and “deference to the demands of federalism.” 140

But the crisis touched off in Harris County may find another template for its resolution there. In the wake of the federal court injunction, a slate of political challengers campaigned against the defendant judges on a platform of settling the federal case and reforming the misdemeanor bail system. In November 2018, the challengers won across the board. 141 In January 2018, the new defendants dropped all further appeals and reformed their system legislatively. 142 Harris County had paid elite national law firms over nine million dollars to defend the bail suit. 143 Ultimately that money bought the county nothing more than a slight reprieve until election day.

A number of federal appellate courts will soon face the present crisis “‘twixt old systems and the Word.” 144 They must respond by enforcing clear constitutional boundaries on local discretion without reference to docket pressures or an undue regard for federalism. If the Reconstruction-era landmark § 1983 doesn’t give federal courts power to supervise and, if necessary, disrupt the jailing of impoverished minorities based on mere accusations, one of the key purposes for erecting the modern federal courts system will be thwarted. 145 But if the federal appellate courts disappoint, the fact that the lower courts have succeeded in reaching the constitutional merits against America’s modern money bail system has already blazed a trail toward building political power at the local level, even in the most recalcitrant of municipalities.

Kellen Funk is an associate professor of law at Columbia Law School. Thanks to Brandon L. Garrett, Craig T. Green, Daniel C. Richman, Jed Purdy, Jocelyn Simonson, Sandra G. Mayson, and the editors of the Yale Law Journal for constructive comments and conversation. Thanks also to Dorothy Weldon for research assistance.

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program.

Caleb Foote, The Coming Constitutional Crisis in Bail: I , 113 U. Pa. L. Rev . 959 (1965).

Douglas Martin, Caleb Foote, Law Professor and Pacifist Organizer, Dies , N.Y. Times (Apr. 3, 2006), https://www.nytimes.com/2006/04/03/us/03foote.html [https://perma.cc/9JQ9 -QCYW].

E.g ., Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that the Sixth Amendment requires states to appoint attorneys to represent indigent defendants); Mapp v. Ohio, 367 U.S. 643 (1961) (holding that evidence obtained in violation of the Fourth Amendment is inadmissible in state-court prosecutions).

Foote, supra note 1, at 959.

420 U.S. 103 (1975).

Pugh v. Rainwater, 572 F.2d 1053, 1059 (5th Cir. 1978) ( en banc) (“[T]he new Florida rule is not facially unconstitutional and we abstain from its further consideration.”).

Id. at 1058.

Id . at 1059 (Simpson, J. dissenting); id . at 1068 (Clark, J., specially concurring); id . at 1069 (Coleman, J., specially concurring); id . at 1070 (Gee, J., specially concurring); id . at 1071 (Rubin, J., concurring).

414 U.S. 488 (1974).

See, e.g. , Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 227-35 (7th ed. 2015) (discussing the case at length).

481 U.S. 739 (1987).

Id. at 741; see 18 U.S.C. §§ 3141-50 (2018).

S ee Nat’l Research Council, The Growth of Incarceration in the United States 35 (Jeremy Travis et al. eds., 2014) (documenting an explosion in the rate of people incarcerated in jails).

See Todd D. Minton & Zhen Zeng, Bureau of Justice Statistics, U.S. Dep’t of Justice, NCJ 248629, Jail Inmates at Midyear 2014, at 3 (2015), https://www.bjs.gov ‌ /content ‌ /pub ‌ /pdf ‌‌ /jim14 ‌ .pdf [https://perma.cc/J8C7-WH9R] (estimating that sixty percent of jail inmates are unconvicted ). For the most up-to-date figures drawn from a variety of sources, see Peter Wagner & Wendy Sawyer, Mass Incarceration: The Whole Pie 2018 , Prison Pol’y Initiative (Mar. 14, 2018), https://www.prisonpolicy.org/reports/pie2018.html [https://perma.cc ‌ /K8FG ‌ -L6CR] (reporting that seventy-five percent of people confined in local jails have not been convicted).

See Megan T. Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, 34 J.L. Econ. & Org. 511, 514 & n.5 (2018).

See, e.g. , Pretrial Justice in America: A Survey of County Pretrial Release Policies, Practices and Outcomes , Pretrial Just. Inst. 2, 7 (2010), https://university.pretrial.org/HigherLogic /System ‌ ‌ /DownloadDocumentFile ‌ .ashx?DocumentFileKey=d4c7feb2-55be-ccd0-f06a-02802 ‌ f ‌ 18ee ‌ ee ‌ &forceDialog=0 [https://perma.cc/P3P9-2UT2] (reporting that 64% of U.S. counties use a secured money bail schedule to determine eligibility for release prior to a first appearance hearing, based on a survey of 112 of the 150 most populous counties in the nation). On the federal system’s general aversion to monetary conditions of release, see Thomas H. Cohen , Bureau of Justice Statistics , Pretrial Release and Misconduct in Federal District Courts, 2008-2010 , U.S. Dep’t Just. 1, 5 (2012), https://www.bjs.gov/content/pub ‌ /pdf ‌ /prmfdc0810.pdf [https://perma.cc/V5SF-G8LQ] (showing that of the 36% of federal defendants released pretrial, 27% were released on a monetary condition, and only 8% used a commercial surety to satisfy that condition).

Jennifer Gonnerman , Before the Law , New Yorker (Oct. 6, 2014), https:// ‌ www ‌ .newyorker ‌ .com ‌‌ /magazine/2014/10/06/before-the-law [https://perma.cc/9LB2-Z9U7]; Margaret Talbot, Watching Sandra Bland , New Yorker (July 29, 2015), https://www.newyorker ‌ .com ‌ /news ‌‌‌ /daily-comment/watching-sandra-bland [https://perma.cc/HD7M-97UM].

See Civil Rights Div., U.S. Dep’t of Justice, Investigation of the Ferguson Police Department 47-62 (2015), https://www.justice.gov/sites/default/files/opa/press-releases /attachments ‌ /2015/03/04/ferguson_police_department_report.pdf [https://perma.cc ‌ /X2QN ‌‌ -8DKB].

ODonnell v. Harris County , 251 F. Supp. 3d 1052 (S.D. Tex. 2017),  aff’d as modified , 892 F.3d 147 (5th Cir. 2018).

Daves v. Dallas County , 341 F. Supp. 3d 688 (N.D. Tex. 2018), appeal pending, Daves v. Dallas County, No. 18-11368 (5th Cir. Oct. 23, 2018); Shultz v. Alabama , 330 F. Supp. 3d 1344, 1365 n.23 (N.D. Ala. 2018), appeal pending sub nom. Hester v. Gentry, No. 18-13898 (11th Cir. Sept. 13, 2018).

Buffin v. City & County of San Francisco, Civil No. 15-4959, 2018 WL 424362 (N.D. Cal. Oct. 28, 2015); Cain v. City of New Orleans , Civil No. 15-4479 (E.D. La. Sept. 17, 2015). Recently the Buffin court reaffirmed its holdings on the constitutional standard to be applied. See Buffin , 2019 WL 1017537, *13-16 (N.D. Cal. Mar. 4, 2019).

In re Humphrey, 228 Cal. Rptr . 3d 513 (Ct. App. 2018), appeal pending , 417 P.3d 769 (Cal. 2018); State v. Brown, 338 P.3d 1276 (N.M. 2014); State v. Pratt, 166 A.3d 600 (Vt. 2017). The remainder of this Essay focuses on federal court litigation. For a recent discussion of state court approaches to bail reform, see Dorothy Weldon, Note, More Appealing: Reforming Bail Review in State Courts , 118 Colum. L. Rev. 2401 (2018).

To make two things clear at the outset, this Essay is concerned with only the substantive requirements of the Bill of Rights and the Reconstruction Amendments. For these purposes, I take for granted that a bail challenge has achieved federal court review on the merits by getting through the myriad procedural and jurisdictional challenges these cases often confront. That is no light assumption because standing, immunity, and abstention—just to name a few jurisdictional doctrines—present significant barriers, see, e.g. , ODonnell v. Harris County, 227 F. Supp. 3d. 706 (S.D. Tex. 2016), aff’d in part and rev’d in part , 892 F.3d 147 (ruling on the County’s motion to dismiss), which would require a separate volume to resolve. Second, I use “bail” in its colloquial sense of secured money bail—that is, a requirement for cash or collateral upfront to be released from pretrial detention. Bail has not always had that meaning, and for hundreds of years it involved no upfront transfers of money or collateral of any kind. See Timothy R. Schnacke et al., The History of Bail and Pretrial Release , Pretrial Just. Inst . (Sept. 23, 2010 ), https://cdpsdocs.state.co.us/ccjj/Committees/BailSub ‌ /Handouts ‌‌‌‌ /HistoryofBail-Pre-TrialRelease-PJI_2010.pdf [https://perma.cc/V8QM-FYS9].

ODonnell , 892 F.3d at 163.

411 U.S. 1, 20-22 (1973) (emphasis added). On the doctrinal path of wealth classifications under equal protection up to and through Rodriguez , see Cary Franklin, The New Class Blindness , 128 Yale L.J. 2, 40-46 (2018).

461 U.S. 660 (1983); see also Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970).

Tate , 401 U.S. at 398 (quoting and adopting the reasoning of Morris v. Schoonfield , 399 U.S. 508, 509 (1970)).

461 U.S. at 672.

Id . at 666-67.

Id . at 668-69, 672.

Both circuits are bound by the former Fifth Circuit’s en banc decision in Pugh v. Rainwater , 572 F.2d 1053, 1056-57 (5th Cir. 1978) ( en banc).

Buffin v. City & County of San Francisco, No. 15-CV-4959-YGR, 2018 WL 424362, at *9 (N.D. Cal. Jan. 16, 2018); accord In re Humphrey, 228 Cal. Rptr . 3d 513, 528 (Ct. App. 2018); cf. ODonnell v. Harris County, 892 F.3d 147, 162 n.6 (5th Cir. 2018) (“[T]he distinction between post-conviction detention targeting indigents and pretrial detention targeting indigents is one without a difference”).

Stack v. Boyle, 342 U.S. 1, 4 (1951).

Barker v. Wingo , 407 U.S. 514, 533 (1972).

Brief of Conference of Chief Justices as Amicus Curiae in Support of Neither Party, ODonnell , 892 F.3d 147 (5th Cir. 2018) (No. 17-20333), 2017 WL 3536467, at *24, *26-27.

As Andrew Hammond has recently shown, poverty determinations can be (though he argues they need not be) quite complicated and require an array of data collection from those invoking poverty status. Andrew Hammond, Pleading Poverty in Federal Court , 128 Yale L.J. (forthcoming 2019).

Stack , 342 U.S. at 5.

United States v. Salerno, 481 U.S. 739, 750 (1987).

Schnacke , supra note 23, at 2, 5-9.

See 18 U.S.C. §§ 3141-3150 (1984).

Of course, speedy trial rights in theory set outer limits on how long trial may take. But both at the state and federal levels, speedy trial rights have proven ineffective in practice. See Malcolm M. Feeley, How to Think About Criminal Court Reform , 98 B.U. L. Rev. 673, 681 (2018); Shon Hopwood, The Not So Speedy Trial Act , 89 Wash. L. Rev . 709, 711 (2014); Daniel Hamburg, Note, A Broken Clock: Fixing New York’s Speedy Trial Statute , 48 Colum. J.L. & Soc. Probs . 223 (2015); Editorial, Total Failure on Speedy Trials in New York , N.Y. Times (Apr. 15, 2015), https:// ‌ http://www.nytimes.com/2015/04/16/opinion/total-failure-on-speedy-trials-in -new ‌ -york ‌ .html [https://perma.cc/3AUJ-KB6Y].

See, e.g. , Cal. Penal Code § 1275(a)(1) (West 2018), repealed by California Money Bail Reform Act, S.B. 10, 2018 Leg., Reg. Sess. (Cal. 2018) (“In setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public . . . . The public safety shall be the primary consideration.”); 725 Ill. Comp. Stat. Ann. 5/110-5 (West 2018) (“In determining the amount of monetary bail or conditions of release, if any, which will reasonably assure the appearance of a defendant as required or the safety of any other person or the community and the likelihood of compliance by the defendant with all the conditions of bail, the court shall . . . take into account such matters as the nature and circumstances of the offense charged, [and] whether the evidence shows that as part of the offense there was a use of violence or threatened use of violence . . . .”); La. Code Crim. Proc. Ann . art. 316 (2019) (“The amount of bail shall be fixed . . . having regard to . . . [t]he nature and the seriousness of the danger to any other person or the community that would be posed by the defendant’s release.”).

Daniel Richman, United States v. Salerno : The Constitutionality of Regulatory Detention , in Criminal Procedure Stories 413, 422-23 (Carol S. Steiker ed., 2006).

United States v. Salerno, 481 U.S. 739, 756 (1987) (Marshall, J. dissenting);  id.  at 768 (Stevens, J., dissenting).

See, e.g. , Albert W. Alschuler , Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process , 85 M ich. L. Rev . 510 (1986); Marc Miller & Martin Guggenheim, Pretrial Detention and Punishment , 75 Minn. L. Rev. 335, 341 n.44 (1990).

See, e.g. , In re Humphrey, 228 Cal. Rptr . 3d 513, 530-35 (Ct. App. 2018); Criminal Justice Committee Report & Recommendations: Pretrial Decision-Making Practices , Tex. Judicial Council 2 (Oct. 2016), https://www.txcourts.gov/media/1436204/criminal-justice-committee-pretrial ‌ -recommendations-final.pdf [https://perma.cc/4W9Z-HVL4].

Washington v. Glucksberg , 521 U.S. 702, 720-21 (1997).

Id. at 721 (quoting Reno v. Flores , 507 U.S. 292, 302 (1993)).

Salerno , 481 U.S. at 750, 755.

Id. at 750.

Id. (citing 18 U.S.C. § 3142(f) (2018)).

Id . at 750-52.

Caliste v. Cantrell , 329 F. Supp. 3d 296, 311-13 (E.D. La. 2018), appeal pending , Caliste v. Cantrell, No. 18-30954 (5th Cir. Aug. 21, 2018).

E.g. , United States v. Mantecon -Zayas, 949 F.2d 548, 550 (1st Cir. 1991); United States v. McConnell, 842 F.2d 105, 108-10 (5th Cir. 1988); United States v. Clark, Crim. No. 12-156 (W.D. Mich. Nov. 20, 2012).

See S. Rep. No. 98-225, at 16 (1983).

ODonnell v. Harris County, 892 F.3d 147, 158 (5th Cir. 2018); Shultz v. Alabama , 330 F. Supp. 3d 1344, 1358 (N.D. Ala. 2018); Caliste , 329 F. Supp. 3d at 311-12.

Bearden ’s majority opinion is quite clear that its rule applies only to “the indigent,” a word used twenty times in the opinion but nowhere defined. Bearden himself had no assets or income and was unable to pay off a $500 fine. It is not clear that mere inability to pay a more sizeable bail amount—say, $150,000—would render a middle-class detainee “indigent” for Bearden purposes. This would seem a bizarre result, but cases from the Bearden era treat “indigence” as a fixed category (like the federal standard for poverty), rather than a relative standard (like inability to pay). See, e.g. , Ross v. Moffitt, 417 U.S. 600, 607 (1974) (“[A] state cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons.”); San Antonio Indep . Sch. Dist. v. Rodriguez, 411 U.S. 1, 19 (1973) (referring to “functional[] ‘ indigen [ ce ]’” as “‘poor’ persons whose incomes fall below some identifiable level of poverty”); Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) ( en banc) (“By definition an indigent is incapable of meeting any money bail requirement.”); Pugh v. Rainwater, 557 F.2d 1189, 1194 (5th Cir. 1977), vacated , 572 F.2d 1053 (5th Cir. 1978) ( en banc) (“[W]e are not called upon to decide whether any person is denied equal protection if he can make bail in some amount, but is unable to post the amount of bail set. We are confronted only with the question of the rights of indigents.”). In a footnote, the Bearden Court recognized that in the context of sentencing “indigency” can be “a relative term rather than a classification,” but surmised for that reason that equal protection may not be the proper frame for analyzing detention based on wealth status. 461 U.S. at 666 n.8. That suggestion is difficult to reconcile with the narrow-tailoring approach the Court actually employed to decide the case.

See Barker v. Wingo , 407 U.S. 514, 532-33 (1972); Stack v. Boyle, 342 U.S. 1, 4 (1951).

424 U.S. 319, 335 (1976).

564 U.S. 431, 444-46 (2011).

Walker v. City of Calhoun, 901 F.3d 1245, 1262-63 (11th Cir. 2018).

ODonnell v. Harris County, 892 F.3d 147, 158-59 (5th Cir. 2018).

See ODonnell v. Goodhart, 900 F.3d 220, 227, 228 (5th Cir. 2018) (reasoning, as a panel deciding a motion to stay the district court’s revised injunction following remand, that, under procedural due process, “a procedural violation is subject [only] to procedural relief” and that “[d] etention of indigent arrestees and release of wealthier ones is not constitutionally infirm purely because” indigent defendants are detained longer than wealthier ones).

ODonnell v. Harris County , 251 F. Supp. 3d 1052, 1147 (S.D. Tex. 2017) (“[T]he court’s conclusions do not rely on substantive due process.”); id . at 1147-53 (finding a likelihood of success on the merits of plaintiffs’ equal protection claim). Thus, the Fifth Circuit did not consider the requirements of substantive due process either. Instead, the Fifth Circuit analyzed Harris County’s bail regime under procedural due process. Further still, in the procedural analysis it only considered the state-created liberty interest generated by Texas state law on pretrial release, not the “fundamental” constitutional right to liberty that Salerno could be read to proclaim. Thus, substantive due process was left completely out of the Fifth Circuit’s “foregoing analysis.” See ODonnell , 892 F.3d at 157-61.

See ODonnell , 892 F.3d at 163; cf. Washington v. Harper, 494 U.S. 210, 220 (1990) (“[The] substantive issue involves a definition of th [e] protected constitutional interest, as well as identification of the conditions under which competing state interests might outweigh it. The procedural issue concerns the minimum procedures required by the Constitution for determining that the individual’s liberty interest actually is outweighed in a particular instance.” (quotation omitted)). In a forthcoming paper, Brandon L. Garrett criticizes the Fifth Circuit’s merely procedural remedy on the same ground. See Brandon L. Garrett, Wealth, Equal Protection, and Due Process , Wm. & Mary L. Rev. (forthcoming 2019) (manuscript at 21) , https:// ‌ ssrn ‌ .com/abstract=3313358.

342 U.S. 1, 5 (1951).

United States v. Salerno, 481 U.S. 739, 752 (1987).

E.g., Walker v. City of Calhoun, 901 F.3d 1245, 1258 (11th Cir. 2018).

Beth Colgan, Reviving the Excessive Fines Clause , 102 Calif. L. Rev . 277 (2014).

Timbs v. Indiana, No. 17-1091, slip op. at 3 (U.S. Feb. 20, 2019) (majority opinion) (internal quotation marks and citation omitted). Even if Stack remains the dominant interpretation of “excessive” bail, the test for evaluating whether a bail amount is disproportionate to meeting the state’s interests may well turn out to be functionally the same analysis as the due process or equal protection inquiry. For instance, the Sixth Circuit, in Fields v. Henry County , 701 F.3d 180 (6th Cir. 2012), indicated that bail may be “excessive” if (1) the bail set is “grossly disproportional to the gravity” of a charged offense, id . at 184 (quoting United States v. Bajakajian , 524 U.S. 321, 334 (1998)); (2) the evidence produced at a bail hearing “was too weak to justify the amount,” id. at 185 (citing United States v. Leisure , 710 F.2d 422, 428 (8th Cir. 1983)); or (3) the bail “was much higher than normal for such charges or . . . the judge relied upon impermissible factors,” id . (citing Wagenmann v. Adams , 829 F.2d 196, 213 (1st Cir. 1987)). Taken together, such factors tend to mimic a tailoring standard similar to heightened scrutiny, especially if a court were to inform its sense of proportionality based on recent empirical work on the relative ineffectiveness of money bail at meeting the state interests at stake. See infra notes 81-89 and accompanying text. That is, the Eighth Amendment is not meaningless under Stack ; it just may not have much independent meaning beyond what the other clauses already require, substantively and procedurally.

401 U.S. 371 (1971); see Judith Resnik, Courts and Economic and Social Rights/Courts as Economic and Social Rights , in The Future of Economic and Social Rights 259, 277 (Katharine G. Young ed., forthcoming 2019).

See, e.g. , Brief for Amici Curiae NAACP Legal Defense and Educational Fund in Support of Plaintiffs’ Motion for Preliminary Injunction, ODonnell v. Harris County , Civil No. 16-1414 (S.D. Tex. 2017) (“African Americans make up 18% of Harris County’s adult population, but account for 48% of the adult prison population in Harris County.”).

See, e.g. , McCleskey v. Kemp, 481 U.S. 279 (1987); Washington v. Davis, 426 U.S. 229 (1976).

See Reva B. Siegel, Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in McCleskey v. Kemp —and Some Pathways for Change , 112 Nw. U. L. Rev. 1269 (2018).

See infra Section II.A (discussing federal courts’ consideration of statistical evidence in the Harris County case).

But see Emma Kauffman, Segregation by Citizenship , 132 Harv . L. Rev . 1379 (2019) (documenting the rise of the all-foreign prison and arguing that federal penal segregation by citizenship status should trigger strict scrutiny).

Sandra G. Mayson, Bias In, Bias Out , 128 Yale L.J. (forthcoming 2019); Sandra G. Mayson, Dangerous Defendants , 127 Yale L.J. 490 (2018); Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored , 123 Yale L.J. 1344 (2014).

Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention , 69 Stan. L. Rev . 711, 741-59, 787 (2017).

Will Dobbie et al., The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges , 108 Am. Econ. Rev . 201, 224-26 (2018); Heaton et al., supra note 80, at 718; see also id. at 760 (considering possible causes of pretrial detention’s criminogenic effect).

Christopher T. Lowenkamp et al., Laura & John Arnold Found., The Hidden Costs of Pretrial Detention 10-11 (2013).

Jason Tashea , Text-Message Reminders Are a Cheap and Effective Way to Reduce Pretrial Detention , A.B.A. J. (July 17, 2018, 7:10 AM CDT), http://www.abajournal.com/lawscribbler/article ‌ /text ‌ _messages_can_keep_people_out_of_jail [https://perma.cc/A3FP-GY6B]; see also Pretrial Servs. Agency for D.C., Congressional Budget Justification and Performance Budget Request, FY 2019, at 27 (2018). As Jocelyn Simonson has argued, charitable bail funds not only call into question the incentive argument, but also suggest reconceiving the social costs weighed in a pretrial detention decision. Instead of assuming that the public’s interest is secured only by pretrial detention, community bail funds show the public interest in release and restoration of defendants to jobs and homes. Jocelyn Simonson, Bail Nullification , 115 Mich. L. Rev. 585, 612-21 (2017); see also Crystal S. Yang, Toward an Optimal Bail System , 92 N.Y.U. L. Rev. 1399, 1417-29 (2017) (arguing that in a cost-benefit analysis of pretrial detention, various community interests are a cost of pretrial detention).

Shima Baradaran & Frank L. McIntyre, Predicting Violence , 90 Tex. L. Rev . 497, 528-29 (2012); Lauryn P. Gouldin , Defining Flight Risk , 85 U. Chi. L. Rev . 677, 729-35 (2018).

Arpit Gupta, Christopher Hansman & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization , 45 J. Legal Stud. 471, 476 (2016); Michael R. Jones, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option , Pretrial J. Inst. (Oct. 2013). See also the recently released study of Philadelphia’s reduction in cash-bail requirements since District Attorney Larry Krasner instituted an office policy against requesting bail for a range of offenses. Aurelie Ouss & Megan T. Stevenson, Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail 1 (George Mason Legal Studies Research Paper No. LS 19-08, Feb. 17, 2019), https://ssrn.com/abstract=3335138 (finding that the percentage of defendants released on their own recognizance—rather than on monetary or other conditions—increased by twelve points following the policy while appearance rates remained stable).

ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1118 (S.D. Tex. 2017).

ODonnell v. Harris County, 892 F.3d 147, 162-63 (5th Cir. 2018).

E.g. , Shultz v. State, 330 F. Supp. 3d 1344, 1367-68 (N.D. Ala. 2018); Daves v. Dallas County, 341 F. Supp. 3d 688, 696-97 (N.D. Tex. 2018).

ODonnell , 251 F. Supp. 3d at 1078-84.

See S.B. 10, 2017-2018 Reg. Sess. (Cal. 2018); Atlanta, Ga., Ordinance 18-O-1045 (Feb. 5, 2018), http://citycouncil.atlantaga.gov/Home/ShowDocument?id=983 [https://perma.cc ‌ /J9Y9-56QW]; Cook County, Ill., Gen. Order No. 18.8A(Ill. Cir. Ct. July 17, 2017), http:// ‌ www ‌ .cookcountycourt.org/Portals/0/Orders/General%20Order%20No.%2018.8a.pdf [https:// ‌ perma.cc/NS8M-AKGP].

ODonnell , 251 F. Supp. 3d at 1084.

Id . at 1083-84.

Id. at 1083; ABA Standards for Criminal Justice, Pretrial Release, Standard 10-1.4 ( Am. Bar Ass’n, 3d ed. 2007).

Brief for the United States as Amicus Curiae Supporting Plaintiff-Appellee and Urging Affirmance on the Issue Addressed Herein, Walker v. City of Calhoun , 682 Fed. Appx. 721 (11th Cir. 2017), 2016 WL 4417421.

The story of recent social movements towards bail reform has yet to be told. For a partial list of what organizers, lawyers, faith leaders, and academics have recently accomplished to dismantle pre- and post-trial incarceration, see Alec Karakatsanis, The Punishment Bureaucracy: How to Think About “Criminal Justice Reform , ” 128 Yale L.J.F. 848, 932-35 (2019). For various articulations of how social and political mobilization can inform constitutional jurisprudence, see Jack M. Balkin, How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure , 39 Suffolk U. L. Rev . 27 (2005); Lani Guinier & Gerald Torres, Changing the Wind: Notes Towards a Demosprudence of Law and Social Movements , 123 Yale L.J. 2740 (2014); Martha Minow , Law and Social Change , 62 UMKC L. Rev . 171 (1993); Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA , 94 Calif. L. Rev . 1323 (2006).

See Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018 ), cert. denied, Walker , No. 18-814 (U.S. Apr. 1, 2019).

Walker , 901 F.3d at 1262-65; see also Woods v. City of Michigan City, 940 F.2d 275, 283-86 (7th Cir. 1991) (Will, J., concurring); Katona v. City of Cheyenne, 686 F. Supp. 289, 293 (D. Wyo. 1988).

Lopez-Valenzuela v. Arpaio , 770 F.3d 772, 780-81 (9th Cir . 2014) (en banc). The highest courts of Arizona and Massachusetts and a California Court of Appeals have taken the same view of Salerno . See Simpson v. Miller, 387 P.3d 1270 (Ariz. 2017); Brangan v. Commonwealth, 80 N.E.3d 949 (Mass. 2017); In re Humphrey, 228 Cal. Rptr . 3d 513 (Ct. App. 2018).

In Foucha v. Louisiana , for instance, the Court held that the detention of defendants acquitted on insanity grounds violated substantive due process on the basis that “unlike the sharply focused scheme at issue in Salerno , the Louisiana scheme of confinement is not carefully limited.” 504 U.S. 71, 81 (1992); see also Reno v. Flores , 507 U.S. 292, 302 (1993); id . at 316 (O’Connor, J., concurring).

Brief for Petitioner at 24-32, Bearden v. Georgia, 461 U.S. 660 (1983) (No. 81-6633); Brief for Respondent at 22-29, Bearden , 461 U.S. 660 (No. 81-6633).

Bearden , 461 U.S. at 666-67.

Id. at 665. For an argument that Bearden provides a sound intersectional theory of “equal process,” see Garrett, supra note 67.

See, e.g. , Buffin v. City & County of San Francisco, No. 15-CV-04959-YGR, 2018 WL 424362, at *9 (N.D. Cal. Jan. 16, 2018).

Walker v. City of Calhoun, 901 F.3d 1245, 1262 (11th Cir. 2018); Welchen v. County of Sacramento, No. 2:16-cv-00185-TLN-KJN, 2016 WL 5930563, at *11 (E.D. Cal. Oct. 10, 2016). Notably, the Schultz court, bound by Walker , nevertheless found Cullman County’s bail system failed rational basis review. Shultz v. State, 330 F. Supp. 3d 1344, 1358, 1365 n.23 (N.D. Ala. 2018).

ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1138-39 (S.D. Tex. 2017), aff’d as modified , 892 F.3d 147 (5th Cir. 2018); see Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989); Craig v. Boren, 429 U.S. 190, 197 (1976).

ODonnell , 892 F.3d at 161-62.

The Buffin court in the Northern District of California has also squarely disagreed with the Eleventh Circuit’s ruling in Walker . See Buffin , 2019 WL 1017537, at *15 (“Ultimately, this Court does not share the same view on the principle of liberty as the Walker court.”).

See supra notes 32-35 and accompanying text.

United States v. Salerno, 481 U.S. 739, 750-51 (1987).

See ODonnell , 251 F. Supp. 3d at 1105.

ODonnell v. Harris County, 227 F. Supp. 3d 706, 759 (S.D. Tex. 2016), aff’d in part, rev’d in part , 892 F.3d 147 (5th Cir. 2018).

Id. (citing Hafer v. Melo, 502 U.S. 21, 28 (1991)).

ODonnell , 227 F. Supp. 3d at 759.

1866 Miss. Laws 165. On the expansion of this prohibition across the postbellum South, see District of Columbia v. Heller , 554 U.S. 570, 614-16 (2008).

Jennifer Roback, Southern Labor Law in the Jim Crow Era: Exploitative or Competitive? , 51 U. Chi. L. Rev. 1161, 1175-76 (1984).

The debates surrounding the Civil Rights Act of 1866, for example, emphasize the need for federal oversight over racially oppressive state policy. For the Senate debates, see Cong. Globe , 39th Cong., 1st Sess. 474 (Jan. 29, 1866) (statement of Sen. Trumbull); id . at 602 (Feb. 2, 1866) (statement of Sen. Lane); id. at 603 (statement of Sen. Wilson); id. at 605 (statement of Sen. Trumbull); id. at 1759 (April 4, 1866) (statement of Sen. Trumbull). And for the House debates, see id . at 1118 (March 1, 1866) (statement of Rep. Wilson); id . at 1123-24 (statement of Rep. Cook); id . at 1151 (March 2, 1866) (statement of Rep. Thayer); id. at 1160 (statement of Rep. Windom); id . at 1267 (March 8, 1866) (statement of Rep. Raymond) ; see also id . at 340 (Jan. 22, 1866) (statement of Sen. Wilson on the amendatory freedmen’s bureau bill) (emphasizing the need for federal oversight).

For a vivid example of the way southern sheriffs could wield bail to coerce sale of freedmen’s property, see the Radical Republican Albion Tourgée’s semi-autobiographical account of his time as a state judge in Reconstruction North Carolina. Albion Tourgée , Bricks Without Straw: A Novel 261-65 (1880).

Anthony G. Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction To Abort State Court Trial , 113 U. Pa. L. Rev. 793 (1965).

See, e.g. , Kentucky v. Powers, 201 U.S. 1 (1906); Neal v. Delaware, 103 U.S. 370 (1881); Virginia v. Rives, 100 U.S. 313 (1880).

Gerstein v. Pugh, 420 U.S. 103, 125 (1975). 

County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Technically, McLaughlin established that administrative processing delays up to forty-eight hours are presumptively reasonable, not that they are entirely immune from challenge.

420 U.S. at 120-21, 123-24.

Id . at 125 n.27.

Rothgery v. Gillespie County, 554 U.S. 191, 212-13 (2008); Michigan v. Jackson, 475 U.S. 625, 629-30 n.3 (1986); Brewer v. Williams, 430 U.S. 387, 398-99 (1977).

420 U.S. at 125 n.27.

Manuel v. City of Joliet, 137 S. Ct. 911, 914 (2017).

Walker v. City of Calhoun, 901 F.3d 1245, 1262, 1266 (11th Cir. 2018).

Id. at 1261.

420 U.S. at 113-14.

One root of the problem is the Court’s subsequent definition of forty-eight hours as “prompt,” a serious misstep. See County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991). This misstep is made all the more unfortunate by the fact it was rendered in 1991, right before networked computing and digital telephony dramatically changed the technological timeframe of administrating arrest.

See Lindsay Carlson, Bail Schedules: A Violation of Judicial Discretion? , Pretrial Just. Inst. 3 (2010), https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx ‌ ?DocumentFileKey ‌ =b646a57f-6399-2fe4-5683-021480c3634a [https://perma.cc/XPL9 -JRZH] (noting that many jurisdictions, including Los Angeles County, use bail schedules to permit “automatic release at the jail door” for defendants who can pay, while those who cannot must await a hearing to determine their eligibility for nonmonetary or affordable conditions of release).

Lowenkamp et al., supra note 83, at 10-11.

ODonnell v. Goodhart, 900 F.3d 220, 226-28 (5th Cir. 2018).

See Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907 (2018).

347 U.S. 483 (1954).

However, federal court intervention in municipal bail regimes would appear to be a prime candidate for the model of “destabilizing” public rights litigation. See Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds , 117 Harv . L. Rev . 1016 (2004).

Walker v. City of Calhoun, 901 F.3d 1245, 1268 (11th Cir. 2018) (quoting Gerstein v. Pugh, 420 U.S. 103, 123 (1975)).

Brian Rogers, Republican Judges Swept Out by Voters in Harris County Election , Hous . Chron . (Nov. 10, 2018), https://www.chron.com/news/houston-texas/houston/article/GOP-Free -Zone-Republican-judges-swept-out-by-13376806.php.

Gabrielle Banks, Harris County Judges Unveil Drastic New Plan for Releasing Defendants on No-Cash Bail , Hous . Chron . (Jan. 18, 2019), https://www.chron.com/news/houston-texas ‌ /houston ‌‌ /article/Harris-County-judges-to-unveil-drastic-new-plan-13541189.php; Keri Blakinger & Gabrielle Banks, Newly Elected Misdemeanor Judges Drop Appeal in Landmark Harris County Bail Lawsuit, Hous . Chron . (Jan. 17, 2019), https://www.chron.com/news ‌ /houston ‌‌ -texas/article/Newly-elected-misdemeanor-judges-move-to-end-13502897.php.

Banks, supra note 142.

James Russell Lowell, The Present Crisis (1845). Lowell’s poem about the abolition crisis became a favorite of civil rights activists in the twentieth century, and the NAACP named its publication The Crisis after it. See Amy Helene Kirschke & Phillip Luke Sinitiere , W. E. B. Du Bois as Print Propagandist , in Protest and Propaganda: W.E.B. Du Bois , the Crisis, and American History 28, 34 (Amy Helene Kirschke & Phillip Luke Sinitiere eds., 2014). I cite this line having in mind Robert Cover’s meditation on the act of appellate judging—an act he broadly termed “the word”—with its solemn reminder that even in the mundane exercise of pronouncing levels of scrutiny, “[l] egal interpretation is either played out on the field of pain and death or it is something less (or more) than law.” Robert M. Cover, Violence and the Word , 95 Yale L.J. 1601, 1606-07, 1622 (1986).

See Hafer v. Melo, 502 U.S. 21, 28 (1991).

New York Bail Reform: A Quick Guide to Common Questions and Concerns

106 Cornell L. Rev. Online 1

25 Pages Posted: 26 Mar 2021

Emmanuel Arnaud

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: 2021

In the wake of New York state passing comprehensive bail reform in 2019, legislators encountered fervent backlash. That backlash prompted several amendments, but many questions concerning the practical effects of the reforms remain. In this Essay, we explore the history of bail in New York, the amendments, and provide answers to some of the biggest questions and concerns surrounding bail reform in New York and elsewhere.

Keywords: Bail, cash bail, bail reform, New York, New York City, New York State

Suggested Citation: Suggested Citation

Emmanuel Arnaud (Contact Author)

Yeshiva university - benjamin n. cardozo school of law ( email ).

55 Fifth Ave. New York, NY 10003 United States

HOME PAGE: cardozo.yu.edu/directory/emmanuel-arnaud

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State of Justice Reform 2019

• Rikers to Close, LA Jails Stopped
• Immigrant Detentions Continue to Rise
• New York’s New Bail Reform Model
• Black Women Prosecutors Under Fire
• FIRST STEP’s Rough First Year
• Administration Sets New Barriers for Refugees
• States Adopt New Strategies Against Opioids
• Mixed Results for State Justice Reform
• West Coast Rethinks Juvenile Justice
• Police Shootings Continue to Make Headlines
• Voting Rights Restored for Justice-Involved
• Marijuana Laws Loosened
• More States Embrace Clemency
• Year Sees Most Mass Shootings on Record
• Supreme Court Tackles Fines

The next wave of bail reform goes beyond ending money bail

Building on a movement that has reached both coasts and middle America, more jurisdictions are taking a serious look at the built-in bias of money bail and its disproportionate impact on people of color and people who are poor.

America’s jails are filled with people who have not been convicted of a crime: while awaiting trial, hundreds of thousands sit behind bars, sometimes for years, simply because they cannot afford to pay their bail—while those who have money can buy their liberty. [ ] In 2017, the most recent year for which data is available from the Bureau of Justice Statistics (BJS), approximately 482,000 people, constituting 65 percent of the daily U.S. jail population, were being held pretrial on any given day. Zhen Zeng, Jail Inmates in 2017 (Washington, DC: BJS, 2019), https://perma.cc/G95M-5SF7 . Although there is no nationally collected data on how many people are unable to afford bail, a 2019 survey of people held in the Cook County (Chicago) jail found that 48 percent of those incarcerated pretrial could not afford bail or lacked a residence at which they could be electronically monitored. Darcel Rockett, “Poor People Often Can’t Afford to Pay Bail—Even When They’re Innocent. An App Developed in Chicago Offers Help Using Your Spare Change,” Chicago Tribune , March 7, 2019, https://www.chicagotribune.com/lifestyles/ct-life-appolition-making-bail-20190124-story.html . Studies have shown that even spending a few days in jail can have tremendous consequences on a person’s life, including loss of employment or housing and pressure to plead guilty. [ ] Léon Digard and Elizabeth Swavola, Justice Denied: The Harmful and Lasting Effects of Pretrial Detention (New York: Vera Institute of Justice, 2019), https://perma.cc/Y96D-7977 .

For years, the rallying cry of bail reform was to end money bail. [ ] See for example Color of Change, “No Money Bail,” https://nomoneybail.org/ . Yet 2019 was the year it became clear that eliminating money alone, without other measures to decarcerate, will not deliver meaningful bail reform. [ ] Robin Steinberg, “Letters to the Editor: SB 10 is the Wrong Replacement For California’s Unjust Money Bail System,” Los Angeles Times , December 22, 2019, https://www.latimes.com/opinion/story/2019-12-22/money-bail-reform-california-sb10 .

Take the examples of California and New Jersey, two states that were widely heralded in mainstream criminal justice circles for passing comprehensive bail reform in recent years. In 2018, California became the first jurisdiction to pass a law—Senate Bill 10—that ended money bail entirely. [ ] California SB 10 (2018), https://perma.cc/6ZEJ-8FFB . See also Vanessa Romo, “California Becomes First State to End Cash Bail After 40-Year Fight,” National Public Radio (NPR), August 28, 2018, https://perma.cc/4YRS-ZWGC . On its face, this should have been a victory in a state where bail amounts are some of the highest in the country, and thousands remain behind bars simply because they cannot afford bail. [ ] John Raphling, Not In It For Justice (New York: Human Rights Watch, 2017), https://perma.cc/29D6-TY3J . But the fundamental flaw of SB 10 was that it replaced the current practice of unfettered discretion to impose unaffordable bail amounts with something potentially worse—unfettered discretion to indefinitely detain people pretrial. [ ] Eric Westervelt, “California's Bail Overhaul May Do More Harm Than Good, Reformers Say,” NPR, October 2, 2018, https://perma.cc/8NLW-FYNT . Many bail reform advocates who initially supported SB 10 rescinded their support at the eleventh hour. [ ] See for example Laurel Eckhouse, “California Abolished Money Bail. Here’s Why Bail Opponents Aren’t Happy,” Washington Post , August 31, 2018, https://www.washingtonpost.com/news/monkey-cage/wp/2018/08/31/california-abolished-money-bail-heres-why-bail-opponents-arent-happy/?noredirect=on&utm_term=.6f492b32df63 ; and Abbie VanSickle, “So Much for the Great California Bail Celebration,” The Marshall Project, August 30, 2018, https://perma.cc/FA87-5RMG . For specific criticisms, see Human Rights Watch, “Human Rights Watch Opposes California Senate Bill 10, the California Bail Reform Act,” August 14, 2018, https://perma.cc/WPT4-5CLT ; Essie Justice Group, “Essie Justice Group Withdraws Support for SB 10,” August 14, 2018, https://perma.cc/64WH-ULUA ; and Silicon Valley De-Bug, “Silicon Valley De-Bug's Letter of Opposition to California's False Bail Reform Bill (SB10),” August 14, 2018, https://perma.cc/956N-5CY6 . More predictably, the for-profit bail bond industry in California also opposed bail reform, launching a campaign both to enshrine the “right to money bail” in the California Constitution and to repeal SB 10. [ ] Maria Dinzeo, “Bail Industry Mounts Two-Pronged Attack to Revive Money Bail in California,” Courthouse News, August 9, 2019, https://perma.cc/4YBN-Z2DH . SB 10 is now on hold pending a statewide referendum in November 2020 after the bail bond industry successfully gathered more than half a million signatures against the new law. [ ] Michael McGough, “The Fate of California’s Cash Bail Industry Will Now Be Decided on the 2020 Ballot,” Sacramento Bee , January 17, 2019, https://www.sacbee.com/news/california/article224682595.html .

On the other side of the country, New Jersey, which enacted bail reform in 2017, released a study in April finding that although release rates increased and the overall pretrial jail population dropped by 30.8 percent after implementation, racial disparities remained as pronounced and disproportionate as before bail reform was passed. [ ] Glenn Grant, Jan. 1 – Dec. 31 2018 Report to the Governor and the Legislature (Trenton, NJ: New Jersey Administrative Office of the Courts, 2019), 46, https://perma.cc/U5SS-8T65 . Troublingly, the majority of people released under New Jersey’s new bail scheme were subject to onerous pretrial conditions—only 9 percent of people arrested in New Jersey in the first three quarters of 2019 were released on their own recognizance, while 27 percent were subject to weekly phone and in-person supervision, and 6 percent to electronic monitoring or home confinement. [ ] For the proportions of people released under various pretrial conditions, see New Jersey Administrative Office of the Courts, Criminal Justice Reform Report: 2019 , Chart A (Trenton, NJ: New Jersey Administrative Office of the Courts, 2019), https://perma.cc/XS6Y-6EBL . For a description of the conditions of pretrial release, see New Jersey Administrative Office of the Courts, Pretrial Release Recommendation Decision Making Framework (DMF) (Trenton, NJ: New Jersey Administrative Office of the Courts, 2018), 3, https://perma.cc/Q92C-C7XD .

The challenge for other jurisdictions was to take the wins from California and New Jersey and learn from the mistakes. In April, New York became the most recent state to pass comprehensive bail reform. [ ] Dan M. Clark, “Cuomo, Lawmakers Announce Deal on State Budget, Criminal Justice Reforms,” New York Law Journal , March 31, 2019, https://perma.cc/9VMA-X7W4 . Compared to California or New Jersey, New York’s new bail law received relatively little media coverage. To many interested in bail and pretrial justice, New York’s efforts at reform seemed un-newsworthy as the bill didn’t go as far as originally promised to eliminate money bail entirely. [ ] Insha Rahman, New York, New York: Highlights of the 2019 Bail Reform Law (New York: Vera Institute of Justice, 2019), https://perma.cc/C9MB-CRX9 . (An earlier bill would have eliminated money bail entirely and allowed judges to impose preventive detention–remand with no bail—in some serious cases, but that version did not pass.) [ ] Ibid.

Yet New York’s bail reform law has the potential to be groundbreaking and truly transformative. The law, which went into effect in January 2020, eliminates money bail and mandates release for most misdemeanors and nonviolent felonies—which together make up about 90 percent of all arrests statewide—although judges may order pretrial supervision or electronic monitoring in some cases. Money bail and pretrial detention are reserved for serious cases, including some domestic violence offenses and violent felonies. And if judges do set bail, they must consider a person’s ability to pay.

The New York law promises to have a significant effect on mass incarceration: some estimate that the state could see a 40 percent reduction in its pretrial jail population. [ ] Ibid. And although the law does not fully eliminate money bail, it goes a step further than other reform bills by mandating, not just presuming, pretrial release for most arrests and requiring judges to consider ability to pay in the limited number of cases where bail is still imposed.

As with bail reform efforts in other states, there has been vocal opposition to New York’s plan—particularly from law enforcement and the District Attorneys Association of the State of New York. [ ] See for example Jeff Coltin, “DAs Trained How to Keep People in Jail Despite New Bail Law,” City & State New York, October 28, 2019, https://perma.cc/27S3-XFQK ; and James O’Neill, “One Dangerous Bail Reform Law: The Legislature Must Fix Mistakes That Will Make New York City Neighborhoods More Vulnerable to Crime (Opinion),” Daily News , May 28, 2019, https://www.nydailynews.com/opinion/ny-oped-one-dangerous-bail-reform-law-20190528-be3kgkxaqnaeleat665bdyw3lq-story.html . O’Neill resigned as police commissioner of the NYPD effective December 1, 2019. Brynn Gingras, Shimon Prokupecz, and Eric Levenson, “NYPD Commissioner James O’Neill is Resigning After 3-Year Tenure,” CNN, November 4, 2019, https://perma.cc/XNM9-N8YT . Opponents argue that those facing charges will have no incentive to appear before the court if bail is removed from the equation; they also warn of threats to public safety if incarcerated people are released en masse. As the law rolled out in January 2020 that opposition grew louder, with law enforcement and prosecutors demanding rollbacks and claiming that people who would otherwise have been incarcerated were out committing crimes—even though New York did not have a preventive detention provision prior to the new law and the primary determinant of whether a person was held pretrial was the ability, or inability, to pay bail. [ ] Emily Bazelon and Insha Rahman, “There’s a Strong Case for Sticking With Bail Reform,” New York Times , January 24, 2020, https://www.nytimes.com/2020/01/24/opinion/sunday/bail-reform-new-york.html . But criminal justice reform advocates say that the evidence does not support those fears—numerous studies, including New York City’s own data, have shown that people return to court at high rates even without any financial stake in their cases. [ ] Ethan Corey and Puck Lo, “The ‘Failure to Appear’ Fallacy,” The Appeal, January 9, 2019, https://perma.cc/98FX-92PL . Also see for example New York City Mayor’s Office of Criminal Justice (NYC MOCJ), Supervised Release Quarterly Scorecard January-March 2019 (New York: NYC MOCJ, 2019), https://perma.cc/E4UZ-BQ28 . And the real effects of the new bail reform law are already being felt in rural counties like Herkimer and Onondaga, where the number of people in jail has dropped dramatically, with no uptick in crime. [ ] Bazelon and Rahman, “There’s a Strong Case for Sticking with Bail Reform,” 2020.

Change is happening at the local level as well. In March, the Pennsylvania ACLU filed a suit against six Philadelphia arraignment court magistrates arguing that the city’s bail system is broken and that money bail is often imposed on indigent people without considering their ability to pay. [ ] Philadelphia Community Bail Fund v. Bernard , No. 21 EM 2019 (Penn. March 12, 2019) (Complaint), https://perma.cc/9T88-ES3T . (In July, the Pennsylvania Supreme Court began a special inquiry into the money bail practices of the First District. [ ] Philadelphia Community Bail Fund v. Bernard , No. 21 EM 2019 (Penn. July 8, 2019) (Order Regarding Application for Extraordinary Relief), https://perma.cc/37UA-LNMS . ) In Texas, a federal judge ruled that Galveston County must provide counsel at bail hearings. [ ] Booth v. Galveston County , No. 3:18-CV-00104 (S.D. Tex. August 7, 2019) (Memorandum and Recommendation), https://perma.cc/PET6-243M ; and Booth v. Galveston County , No. 3:18-CV-00104 (S.D. Tex. September 11, 2019) (Order Adopting Magistrate Judge’s Memorandum and Recommendation & Preliminary Injunction), https://perma.cc/E286-6GTC . And Cook County (Chicago), Illinois, announced that major bail reforms enacted in the county led to a 15 percent drop in the jail population and an overall decline in violent crime. [ ] Shannon Heffernan, “Report: Cook County Bail Reform Reduced Jail Population Without More Crime,” NPR, May 13, 2019, https://perma.cc/M66F-Q3FY .

One of the most significant bail reforms of 2019 has emerged out of Harris County (Houston), Texas—the state’s most populous county—after a lawsuit was filed in 2016 by people detained in the Harris County jail on misdemeanor charges because they could not afford bail. [ ] Jolie McCullough, “Harris County Agreed to Reform Bail Practices That Keep Poor People in Jail. Will It Influence Other Texas Counties?” Texas Tribune , July 31, 2019, https://perma.cc/55W2-4XM6 . After the county’s misdemeanor bail system was ruled unconstitutional by a federal judge, the Harris County Criminal Courts at Law approved a landmark settlement proposal—Rule 9.1—that requires mandatory release of close to 85 percent of people arrested on misdemeanor charges in the county. [ ] Alvaro Ortiz, “Federal Judge Approves Settlement Over Historic Lawsuit on Harris County Bail System,” Houston Public Media, September 5, 2019, https://perma.cc/G4T3-6U36 . For those still subject to money bail under the settlement, judges must first consider nonmonetary conditions of release and, if bail is set, a person’s ability to pay. [ ] Harris County Criminal Lawyers Association, Amended Local Rule 9.1 (Misd Bail Policies), https://perma.cc/YR8M-TWSE . Rule 9.1 further requires counsel at bail hearings, access to social workers, and supportive services such as court reminders and assistance getting to court. [ ] Ibid. The settlement also provides for an “open-hours court” to be held once a week, where those who miss their hearings can return to court and clear up any warrants. [ ] Ibid. The settlement has the potential to serve as a model—both in Texas and across the country—for moving away from money bail and embracing other decarcerative reforms—such as provisions for mandatory release and supportive, not punitive, pretrial services—that bail reformers have sought in addition to ending money bail.

These reforms in Harris County have engendered strong opposition by many, including those who originally were supportive of changes to the current bail system. During the litigation that led to Rule 9.1, Harris County District Attorney Kim Ogg publicly voiced her support for misdemeanor bail reform and called it “necessary and long overdue.” [ ] Office of District Attorney Kim Ogg, “Bail Reform: Position on Bail Bond Litigation,” press release (Houston, TX: Office of the Harris County District Attorney, March 3, 2017), https://perma.cc/G2KE-HMU7 . Yet the district attorney, with many members of local law enforcement agencies, protested the final version of the new misdemeanor bail rule at a hearing held by the federal judge in the case in October. [ ] Gabrielle Banks, “District Attorney Kim Ogg Summons Police Chiefs to Oppose Historic Bail Settlement,” Houston Chronicle, October 12, 2019, https://www.houstonchronicle.com/news/houston-texas/houston/article/District-Attorney-Kim-Ogg-summons-police-chiefs-14517578.php . At the hearing, more than 100 stakeholders—11 of whom gave testimony—filled the courtroom and, although Ogg declined the opportunity to speak, her office filed a brief raising concerns about the settlement and told reporters she was concerned about public safety because “[i]n practice, we’re seeing repeat offenders being released on PR (personal recognizance) bonds repeatedly.” [ ] Gabrielle Banks, “AG’s Office, Police and County Officials Voice Concerns About Bail Plan at Final Hearing,” Houston Chronicle , October 28, 2019, https://www.houstonchronicle.com/news/houston-texas/houston/article/AG-s-office-police-and-county-officials-voice-14568648.php . After hearing the opposition, the federal judge still ruled to recognize Rule 9.1 in November, clearing the final hurdle for this historic settlement to take effect. [ ] Gabrielle Banks, “Federal Judge Gives Final Approval to Harris County Bail Deal,” Houston Chronicle , November 21, 2019, https://www.houstonchronicle.com/news/houston-texas/houston/article/Federal-judge-approves-Harris-County-bail-deal-14853781.php .

Research and statistics show that the reactionary arguments against bail reform used in Harris County—just like those in New York—have not proven to be accurate. In 2019, New Jersey released a report showing that people released as a result of the state’s bail reform are no more likely to commit new offenses or fail to show up for court appearances than people released under the prior system of money bail. [ ] Glenn Grant, 2018 Report to the Governor and the Legislature (Trenton, NJ: New Jersey Administrative Office of the Courts, 2019), 3, https://perma.cc/MD64-Q55V . An independent study found that Philadelphia’s efforts at bail reform led to a 23 percent increase in the number of people released with no compromises to court appearance, pretrial arrest, or crime. [ ] Aurelie Ouss and Megan Stevenson, “Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail,” George Mason Legal Studies Research Paper no. LS 19-08 (February 17, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3335138 . Finally, New York City consistently has had the lowest jail incarceration rate of any major U.S. city—as a result of local changes in bail practices enacted even before the new bail reform law passed this year—and continues to enjoy historically low rates of crime. [ ] See NYC MOCJ, Jail: Who is in on Bail? (New York: NYC MOCJ, 2019), https://perma.cc/7LU2-G4WE ; and New York City Police Department, “Historical New York City Crime Data,” https://perma.cc/QB6P-MT2H .

More Articles

• DOI: 10.1080/1068316x.2024.2375225
• Corpus ID: 271041364

Judicial decision-making in the era of pretrial reform

• Chelsea M. A. Foudray , E. Lowder
• Published in Psychology, Crime & Law 6 July 2024
• Law, Psychology
• Psychology, Crime & Law

78 References

Pretrial decision-making matrices: the role of risk and charge weighting in risk assessment–guided decisions, effects of pretrial risk assessments on release decisions and misconduct outcomes relative to practice as usual, racist algorithms or systemic problems risk assessments and racial disparities, predictive validity of pretrial risk assessments: a systematic review of the literature, perceptions of pretrial risk assessment: an examination across role in the initial pretrial release decision, context effect and confirmation bias in criminal fact finding, using algorithms to address trade-offs inherent in predicting recidivism, examining judicial pretrial release decisions: the influence of risk assessments and race, bail and pretrial detention: contours and causes of temporal and county variation, limiting retributivism and individual prevention, related papers.

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Bail Reform

The ACLU works in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the laws of the United States guarantee everyone in this country.

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The Illinois Supreme Court Cash Bail Ruling, Explained

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On any given day in 2020, roughly 630,000 people were locked up in local jails. The majority of them had not been convicted of a crime.  After an arrest — wrongful or not — a person’s ability to leave jail and return home to fight the charges typically  depends on access to money . That's because, in virtually all jurisdictions, people are required to pay cash bail in order to secure their freedom. Originally, bail was designed to ensure  people return to court to face charges against them. Now we know that simple solutions like court reminders often can achieve that purpose. And, the money bail system has morphed into one that perpetuates widespread wealth-based incarceration. The pretrial incarceration caused by unaffordable bail is the single greatest driver of convictions, and is responsible for the ballooning of our nation’s jail and prison populations. Poorer Americans and people of color often can't afford to come up with money for bail, leaving them incarcerated in jail awaiting trial, sometimes for months or even years. Meanwhile, wealthy people accused of the same crime can buy their freedom and return home. Across the country, money bail is set at levels that are far too high for many people or their families to pay. Defendants face an impossible choice: remain locked up in jail as the case moves through the system; pay a nonrefundable fee to a for-profit bail bonds company; or plead guilty and give up the right to defend themselves at trial. For poorer families, paying this fee can be a significant hardship. They won’t ever get the money back regardless of the outcome of the case – even if the arrest was a case of mistaken identity and no charges were ever filed. This bail system has increased the jail population and made America's incarceration problem worse. According to a report by the Vera Institute for Justice, the number of annual jail admissions doubled in the past three decades to 12 million, and the average length of stay increased from 14 to 23 days. The ACLU Campaign for Smart Justice is fighting in state legislatures and in the courts to end the unjust bail system, and is working to end the for-profit bail industry, which profits off this injustice. Current bail practices are unconstitutional because they violate the rights to  due process and equal protection under the Fourteenth Amendment, the prohibition against excessive bail found in the Eighth Amendment, and the right to a speedy trial guaranteed by the Sixth Amendment. For-profit bail bond companies and the insurance companies who back them don't want to see changes to a system that generates revenue for them, but some states are starting to look at a smarter path forward. In New Jersey, for instance, lawmakers have imposed bail reforms that consider the individual in deciding whether someone can return home, not just how much money that person has. Illinois recently became the first state to completely abolish cash bail and invest in alternatives to promote pretrial release and success. We also saw a massive victory in February 2020, when following a pressure campaign private equity firm Endeavour Capital divested from Aladdin Bail Bonds, the then largest for-profit bail bond company in the US. This came after a multi-year campaign by ACLU Smart Justice and Color of Change pushing them and their investors to divest. Our next corporate target is Fairfax Financial, a Toronto based company which has now assumed the title of the largest owner of commercial bail in the U.S. This approach makes the system more equitable and effective.

NSW Bail Law – Investigation Of A Contemporary Law Reform Issue

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Investigation Of A Contemporary Law Reform Issue – NSW Bail Law 95%

In Contemporary New South Wales, bail laws have undergone considerable and significant law reform. This essay will identify and investigate the contemporary law reform issue of bail, examine the conditions that gave rise to the need for the law reform surrounding bail, the agencies for this reform and the mechanisms of this reform; as well as assessing the effectiveness of the law reform in regards to achieving just outcomes for all parties involved.

In New South Wales, bail is considered the ” conditional release of a person accused of a crime pending trial and it reflects the long-standing fundamental right of an accused person to be innocent until proven guilty in a court by way of trial” . A consequence of this is that 1 effective bail laws are crucial to ensuring that the fundamental rights of the accused person are satisfied and that the community feel as if they are safe as well as being protected from potentially harmful offenders. Finding a balance between these two ideas has often been a challenge for legislators and gave rise to the Bail Act 1978 NSW reform replacing it with the Bail Act 2013 NSW. “The role of law reform is to ensure that laws are dynamic and updated to reflect changing community values.

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The Principle of no Excessive Bail: Ensuring Justice and Fairness

This essay is about the principle of no excessive bail which is protected by the Eighth Amendment of the United States Constitution. It emphasizes the importance of setting bail amounts that are not prohibitively high ensuring that individuals are not unjustly detained before their trial. The essay discusses the personal and economic hardships caused by excessive bail especially for low-income individuals and highlights recent reforms aimed at creating a more equitable bail system. It also underscores the role of judges in maintaining fairness and the necessity of public awareness and advocacy in promoting a just legal system.

How it works

The idea of “no excessive bail” is super important in our justice system laid out in the Eighth Amendment of the U.S. Constitution. It’s all about being fair making sure people aren’t punished too much before they’re even proven guilty. This rule helps balance keeping the public safe with protecting the rights of the accused making sure our justice system is fair and kind.

Bail is there to make sure someone shows up for their court dates but can stay free until their trial.

The amount is decided based on stuff like how serious the crime is the person’s past record and if they might run away. But the Eighth Amendment stops bail from being set so high that it keeps folks locked up without a good reason.

If bail is set too high—more than what someone can pay—it can mess up their life big time. They might end up stuck in jail before trial which can mean losing their job not having a stable place to live and messing up their family life. This hits low-income folks the hardest making social gaps worse and going against the idea that everyone gets treated the same by the law.

This isn’t just a legal thing; it’s a big deal for social fairness too. Studies show people who can’t pay bail are more likely to plead guilty even if they didn’t do anything wrong just to get out faster. That’s not fair and can make the legal system look bad. Plus it costs taxpayers a lot more to keep someone in jail before trial than to keep an eye on them while they’re out on bail or other ways to stay out of jail.

Lately some places have started making changes to deal with too-high bail. They use tools to see how likely someone is to show up in court or be a danger not just look at money. These changes try to make bail fairer and more based on facts cutting down on how much cash matters and using other ways to decide if someone can be let out before their trial.

Some folks even say we should get rid of cash bail altogether. They want a system where being out before trial depends on how serious the crime is and what the person’s past is like not on how much money they have. These changes would mean fewer people stuck in jail when they don’t need to be only using it when it’s really important for safety or court stuff.

Judges have a big job in all this. They have to think hard about each case balancing how much to worry about public safety with the rights of the person on trial. It’s a tough job but it has to be fair and right. Setting bail too high doesn’t just hurt people; it makes folks lose trust in how fair our justice system is.

People talking about this issue and pushing for changes are super important. Groups in communities and folks who know a lot about laws keep working hard to show how bail rules aren’t fair and to get better rules in place. Their work is key to making our justice system more fair and kind to everyone no matter how much money they have.

To sum up the idea of no excessive bail is a big part of making sure our legal system is fair and right. It stops people from being punished too much before they even get their day in court and makes sure everyone gets treated fairly no matter their money situation. We need to keep working on changes and make sure judges keep things fair so our legal system works for everyone. As we keep talking about fairness and rights making sure bail is fair is a big part of making sure everyone gets the same chances in our society.

Remember this essay is just a start. For more help or to make sure your essay is just right talk to the folks at EduBirdie.

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New York, Westchester Criminal Defense Attorneys

Did new york’s bail reforms go too far.

By Jill K. Sanders, Esq.

New York’s criminal justice system will soon undergo dramatic changes. As detailed in our two recent blogs , beginning January 1, 2020, there will be many changes .

One such change will be regarding bail. Bail is meant to be a representation of the least restrictive condition(s) to reasonably assure a defendant’s court appearance. Yet some question if the new bail reforms have gone too far.

What Are the New Bail Reforms?

Beginning next year, all persons who are charged with misdemeanors or non-violent E felonies will be released with a Desk Appearance Ticket , with some exceptions. If charged with a sex offense, escape charges, or bail jumping, a person will be held until they can be arraigned. And a person may be held for arraignment if an Order of Protection may be issued, or if a person’s license may be suspended.

At an arraignment, a judge will determine what release conditions will be imposed. Release, or release without monetary conditions, will be mandatory for the following charges:

• All misdemeanors and non-violent felonies (except sex offenses, Criminal Contempt in a domestic violence matter, witness tampering or intimidation, terrorism-related charges, and certain offenses against children)
• All drug charges (except charges of Operating as a Major Trafficker)
• Robbery in the Second Degree (when aided by another)
• Burglary in the Second Degree (when committed in a dwelling)

Bail may be set if there is a showing that the defendant poses a risk of flight to avoid prosecution. However, there will not be a public safety consideration when determining bail.

Types of Bail

In addition to changing when bail can be set, the types of bail have also been revised. Now, when bail is set, a court must now set at least three forms.

One such form must be an unsecured bond, or a secured or partially-secured bond. A partially secured bond allows a defendant to pay 10% or less of the bail up front; the balance is due only if the defendant skips court. An unsecured bond requires no upfront payment.

As before, a court can also set cash bail as an alternative. A court will also have to consider the individual’s financial situation in determining the bail amount. A judge can also require pre-trial monitoring. And a court may also use electronic monitoring in certain cases.

What Are the Pros to Such Bail Reforms?

The obvious “pro” to bail reforms is that people will not be held in jail simply because they can’t come up with bail money. Cash bail is unduly harsh to most people of less financial means. The bail reforms will also prohibit excessive bail from being set on minor charges. One study found that in New York City, of the nearly 5,000 persons detained pending trial, 43% would have been released under the new bail reforms. And of the nearly 205,000 cases arraigned in 2018, only 10% would have been eligible for money bail under the new laws.

People also won’t be held on bail when police or prosecutors “over charge” a defendant. Many lower-level felony charges will eventually resolve as either as a misdemeanor or with a non-criminal disposition. If bail were set on the felony charge, a defendant may spend time in jail for a case that ends up as a mere violation.

Another “pro” is that there will be less of a strain on correctional facilities. If fewer people are detained, jails can better allocate their resources. Some may see this as a “con” however, as there may be fewer jobs in local correctional institutions.

What Are the Cons?

The biggest “con” is that public safety will no longer be a consideration for setting bail. Some persons accused of robbery and burglary – both violent felonies – will be released without bail. Those defendants may indeed pose a risk to public safety. What if it was a string of burglaries or robberies? Might they commit the offense again?

Also, many persons charged with drug felonies will be released without bail. While not a gun or a knife, some drugs – such as fentanyl – are so deadly, the public may be put in danger. And drug dealers who aren’t caught with guns may still have access to weapons. Such happened in New Jersey after the state enacted its own bail reforms.

Finally, bail reforms may erode the public’s confidence in the system. If a victim sees the perpetrator back on the street, will the victim feel safe? While an Order of Protection provides some level of assurance, in the end it is just a piece of paper. Without a judge determining what level of dangerousness a defendant may pose, the Legislature may be forcing the release of persons who may commit additional crimes.

References:

• Office of the NYS Governor, “Criminal Justice Reform.” Available at: https://www.governor.ny.gov/programs/criminal-justice-reform (last accessed Oct. 29, 2019).
• Michael Rempel and Krystal Rodriguez, “New York’s Bail Reform Law: Major Components and Implications,” Center for Court Innovation . Available at: https://www.courtinnovation.org/publications/bail-reform-NYS (last accessed Oct. 29, 2019).
• Krystal Rodriguez and Michael Rempel, “Bail Reform and Domestic Violence in New York,” Center for Court Innovation . Available at: https://www.courtinnovation.org/publications/NYS-bail-DV (last accessed Oct. 29, 2019).

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BAIL REFORM ESSAY

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• Introduction
• Conclusions
• Article Information

New Jersey’s (NJ) trend is shown in green. Lines are colored by weights in the augmented synthetic control method (SCM), as shown in the key. NY indicates New York.

Time is measured in quarters since the start of the study period in January 2014. The y-axis shows the difference in the rate of each outcome comparing New Jersey and the synthetic control. The 95% CIs (shaded areas) were calculated using the conformal inference method. 38 Point estimates and 95% CIs are available in eTable 2 in Supplement 1 . ATT indicates average treatment effect on the treated.

eAppendix. Supplemental Methods

eTable 1. Gun Violence Outcomes 2014-2016 and 2017-2019 in New Jersey, the U.S. on Average, and in the Synthetic Control Donor Pool

eTable 2. Average Treatment Effect on the Treated and 95% CIs for Each Quarter Post-Policy

eTable 3. Average Treatment Effect on the Treated and 95% CIs for Each Quarter Post-Policy Robustness Checks

eFigure 1. Gap Plots for the Actual Policy and Two In-Time Placebos

eFigure 2. Gap Plots for the Actual Policy and In-Space Placebos

Data Sharing Statement

• Gun Violence and Pretrial Detention—Addressing Public Perception and Public Health JAMA Network Open Invited Commentary May 22, 2024 Rod K. Brunson, PhD; Vijay F. Chillar, PhD

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Jahn JL , Simes JT , Jay J. Evaluating Firearm Violence After New Jersey’s Cash Bail Reform. JAMA Netw Open. 2024;7(5):e2412535. doi:10.1001/jamanetworkopen.2024.12535

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Evaluating Firearm Violence After New Jersey’s Cash Bail Reform

• 1 The Ubuntu Center on Racism, Global Movements, and Population Health Equity, Drexel University Dornsife School of Public Health, Philadelphia, Pennsylvania
• 2 Department of Sociology, Boston University, Boston, Massachusetts
• 3 Department of Community Health Sciences, Boston University School of Public Health, Boston, Massachusetts
• Invited Commentary Gun Violence and Pretrial Detention—Addressing Public Perception and Public Health Rod K. Brunson, PhD; Vijay F. Chillar, PhD JAMA Network Open

Question   Did gun violence in New Jersey increase, decrease, or remain unchanged after implementation of the state’s 2017 bail reform policy?

Findings   In this case-control study, there was no change in fatal and nonfatal gun violence in New Jersey after substantial declines in jail incarceration under bail reform.

Meaning   These findings suggest that bail reform may be an important tool for reducing jail incarceration without exacerbating community gun violence.

Importance   Reducing the pretrial detention population has been a cornerstone of movements to end mass incarceration. Across many US cities, there are ongoing public debates on policies that would end pretrial detention due to the inability to afford bail, with some raising concerns that doing so would increase community violence.

Objective   To evaluate changes in firearm violence after New Jersey’s 2017 bail reform policy that eliminated financial barriers to avoiding pretrial detention.

Design, Setting, and Participants   This case-control study used synthetic control methods to examine changes in firearm mortality and combined fatal and nonfatal shootings in New Jersey (2014-2019). New Jersey was chosen because it was one of the first states to systematically implement cash bail reform. Outcomes in New Jersey were compared with a weighted combination of 36 states that did not implement any kind of reform to pretrial detention during the study period. Data were analyzed from April 2023 to March 2024.

Exposure   Implementation of New Jersey’s cash bail reform law in 2017.

Main Outcomes and Measures   Quarterly rates of fatal and nonfatal firearm assault injuries and firearm self-harm injuries per 100 000 people.

Results   Although New Jersey’s pretrial detention population dramatically decreased under bail reform, the study did not find evidence of increases in overall firearm mortality (average treatment effect on the treated, −0.26 deaths per 100 000) or gun violence (average treatment effect on the treated, −0.24 deaths per 100 000), or within racialized groups during the postpolicy period.

Conclusions and Relevance   Incarceration and gun violence are major public health problems impacting racially and economically marginalized groups. Cash bail reform may be an important tool for reducing pretrial detention and advancing health equity without exacerbating community violence.

Over the past several decades, the incarcerated population in the US has grown by 500%. Approximately 9 million people are incarcerated in jail each year, 1 about 80% of whom are held pretrial, 2 meaning they are legally innocent while incarcerated. The inability to afford bail prevents many from being released from jail pretrial, and the average period of jail incarceration is 26 days. 3 Socioeconomic inequities across racialized groups also make the ability to pay bail, and therefore rates of jail incarceration, highly racially inequitable. 4 , 5

Cash bail reform is a major lever for reducing the pretrial jail population, but its implications for community health and well-being remain a sticking point in policy debates. Recently, several counties and states have considered policies that would eliminate financial barriers to bail (ie, end cash bail) and, therefore, greatly reduce jail incarceration. 6 In 2017, New Jersey implemented one of the most comprehensive bail reforms to date. 7 The law shifted the state away from a resource-based approach, in which 38% of the state’s jail population was held pretrial because they could not afford bail, to a risk-based approach that uses an empirical risk assessment tool to help determine whether someone is detained pretrial. 8 New Jersey’s 2017 law virtually eliminated pretrial detention due to the inability to afford bail. 8 Since the policy was implemented, the number of people detained pretrial has decreased. For example, although 8899 people were held pretrial at the end of 2015, there were 4976 people held pretrial in county jails by the end of 2019. 9

Few jurisdictions have implemented policies to eliminate cash bail, and bail reform remains an active area of policy debate in New Jersey and across the US. Both arguments for and against bail reform have underscored implications for community safety and well-being, with a particular focus on gun violence. 10 Importantly, however, nearly all extant studies fail to fully assess these arguments because they have focused solely on criminal justice outcomes for those who were released under the new law, such as rearrest or reincarceration, rather than directly testing whether violence and other health outcomes in the community changed after bail reform. 6 , 11

On the one hand, critics of cash bail reform, including in New Jersey, raise concerns that rates of violence would increase in the absence of a broad system of pretrial detention as a tool for incapacitation and crime deterrence. 12 , 13 Some scholars have argued that the rise of mass incarceration, even if unjust and inefficient as a crime prevention strategy, likely contributed to reductions in firearm violence from the mid-1990s to the mid-2010s by removing (ie, incapacitating) large shares of the populations (eg, low-income Black male youth) most likely to be involved in firearm violence as victims or shooters. 14 Other research 11 , 15 has evaluated whether the threat of incarceration and criminal punishment deters crime. According to both incapacitation and deterrence theories, reducing the jail population through cash bail reform would tend to increase gun violence in the community, particularly interpersonal violence.

Alternatively, other research suggests rates of violence might decline after bail reform, largely because of reductions in jail incarceration and its widespread harms in the community. Studies of neighborhood collective efficacy, 16 , 17 for example, hypothesize that strong social ties are important for gun violence prevention. Under bail reform, there could be fewer disruptions to social support and family caretaking arrangements because fewer community members are in jail. 18 - 20 Several studies 21 - 25 have also shown that psychological and economic stressors are important determinants of violence. Jail incarceration removes people from the labor market, and even for those who are not convicted, the stigma of a criminal record can have negative employment consequences that immediately affect families’ financial well-being. 19 For children, a family member’s incarceration is an adversity linked with higher rates of fighting at school and suicidal ideation. 26 Therefore, by keeping social networks intact and preventing some of the adverse consequences of jail incarceration, cash bail reform may reduce rates of violence.

In this study of New Jersey’s bail reform law, we focus on 2 primary community health outcomes: firearm mortality and a combined rate of fatal and nonfatal intentional interpersonal shootings. To evaluate the impact of bail reform on gun violence in New Jersey, we used synthetic control methods (SCM), a robust approach that is preferred for studies with single treated units. 27 - 29 In addition to overall changes in rates of firearm mortality, we examined changes among Black, White, and Hispanic racialized groups given large inequities in both pretrial detention and gun violence due to structural racism. 30 , 31 Currently, the main policy response to gun violence is criminalization and incarceration. 32 Our study assesses whether cash bail reform was implemented without exacerbating community violence and inequities.

This case-control study was approved by the Drexel University institutional review board. Informed consent was not obtained because the data are publicly available and anonymous, in accordance with 45 CFR §46. We followed the Strengthening the Reporting of Observational Studies in Epidemiology ( STROBE ) reporting guidelines for observational studies.

Our first study outcome is quarterly rates of firearm mortality per 100 000 constructed using deidentified National Center for Health Statistics (NCHS) mortality files from 2014 to 2019, which include the month, year, decedent race and ethnicity, and county of the death occurrence. We limited analyses to firearm-related deaths, which included the following causes of injury: homicide, suicide, unintentional, and undetermined ( International Statistical Classification of Diseases and Related Health Problems, Tenth Revision codes W32-W34, X72-X74, X93-X95, and Y22-Y24). Our primary analyses examined all types of firearm-related deaths except for suicides, but we secondarily included suicides in a sensitivity analysis. Total counts and rates of all firearm-related deaths before and after the 2017 policy are provided in eTable 1 in Supplement 1 .

Our second study outcome is a quarterly rate of fatal and nonfatal shootings per 100 000 using data from the Gun Violence Archive (GVA) from 2014 to 2019. The GVA is a nonprofit organization that uses government, media, and commercial data sources to provide geocoded dataset of firearm violence incidents. The GVA is the most complete firearm violence data source with compiled information for both fatal and nonfatal gun violence during the study period. 33 The data are publicly available and free to download. GVA data are typically used to measure intentional, interpersonal firearm violence, because intentional self-harm incidents (ie, suicides and suicide attempts) are omitted and unintentional shootings are a small proportion of total incidents. Validation work has found good sensitivity (81%) and excellent specificity (99%) when comparing the GVA with incident-level firearm violence data compiled by local police agencies, which are considered the criterion standard. 34 We geocoded the GVA location data to US counties and analyzed a combined total count of fatal and nonfatal shootings from 2014 to 2019. For both outcomes (NCHS firearm-related mortality and GVA combined fatal and nonfatal shootings), we estimated a quarterly, county-level rate using the annual county population provided by the US Bureau of the Census County Population Estimates (2014-2019).

In our analysis, New Jersey is the single treated unit. To determine which states could contribute to the synthetic control donor pool, we constructed a pretrial detention reform database that documented whether a local or state government implemented pretrial detention reforms during our study period. We examined the 3 years before and after New Jersey implemented its reform on January 1, 2017. The following jurisdictions implemented pretrial cash bail reform during our study period: Alaska; California; Kentucky; New Mexico; Washington, DC; Fulton County, Georgia; Cook County, Illinois; Orleans Parish, Louisiana; Philadelphia County, Pennsylvania; and Harris County, Texas. The following jurisdictions implemented other forms of pretrial detention reform (eg, a risk assessment tool) during our study period: Arizona; Colorado; Connecticut; Hawai’i; Maryland; Missouri; Vermont; Polk County, Iowa; and Davidson County, Tennessee. In addition, Delaware and Rhode Island do not participate in the Census of Jails, a data source for a key covariate, and thus are excluded from the analysis. We excluded these jurisdictions from the potential donor pool by first generating a dataset of county-level covariate conditions (except for state-level corrections expenditures and urbanization), and then aggregating up to 36 control states with excluded counties, states, and Washington, DC.

We chose theoretically motivated covariates that would be associated with pretrial detention policy implementation. To estimate county-level socioeconomic disadvantage, we used the proportion of the county population that is aged 25 years or older with less than a high school degree, the race-income Index of Concentration at the Extremes, a measure of racialized economic segregation, 35 and county-level labor force participation. We also adjusted for county-level crime and jail incarceration rates and for state-level annual state and local government expenditures on corrections (per capita) and urbanization. Data sources and details on covariate variable construction are available in the eAppendix in Supplement 1 .

Data were analyzed from April 2023 to March 2024. Our analysis used SCMs to compare observed postpolicy trends in gun violence in New Jersey with a strongly matched comparison group comprising 36 jurisdictions that did not implement reforms to pretrial detention during this period. An advantage of SCM over traditional difference-in-differences or controlled interrupted time series methods is that it is less subject to bias from violations of the parallel trends assumption. 36 Rather than averaging across nontreated areas, we modeled a comparison group on the basis of prepolicy rates of gun violence in New Jersey along with covariates. Augmented SCMs extend traditional SCM to improve the fit of the observed vs synthetic control outcomes in the prepolicy period by allowing donor weights to be negative. This is particularly important in the context of our study because our treated unit had lower prepolicy rates of gun violence overall compared with most control units. 28 The augmented SCM uses a ridge regression with a regularization parameter that penalizes increasing departure from nonnegative weights, 27 and our residualized models set the ridge penalty to 0 for covariates but greater than 0 for pretreatment outcomes to generate weights that match on auxiliary covariates. 37 Covariates were selected from a wide range of theoretically informed county-level and state-level conditions on the basis of the pretrend fit for our synthetic control, and we used root mean squared error to assess goodness of fit. Our final set of covariates included crime and jail incarceration rates, proportion of adults with less than high school education, correction expenditures, urbanicity, and an index of racialized economic segregation.

The average treatment effect on the treated (ATT) is estimated as the difference in the observed outcome vs the weighted synthetic control at each postpolicy time point. The 95% CIs on the ATT were calculated using the conformal inference method. 38 Separate models were estimated for each study outcome, and NCHS firearm mortality was estimated separately for Black, White, and Hispanic groups. We conducted our analysis using the augsynth package in R statistical software version 4.2.3 (R Project for Statistical Computing). A priori levels of significance were P  < .05, and all hypothesis tests were 2-sided.

We conducted a series of sensitivity analyses to assess the robustness of our results. First, we repeated our main SCMs but with nonresidualized covariates to see whether our results are consistent across this alternative model specification. Second, we also adjusted for 3 potential confounding factors: state-year gun law restrictiveness (measured as the total number of state firearm law provisions), rates of gun ownership, and state senate majority partisanship. Additional details on these data and sources are available in the eAppendix in Supplement 1 . Third, instead of restricting our donor pool to places with no pretrial detention reform policies in general, we broadened our donor pool by excluding only places that implemented bail reform specifically. Fourth, we examined firearm homicide models among male individuals only, to assess whether our findings might be attributable to a law removing firearms from those convicted of domestic violence, which was implemented at the same time as New Jersey’s bail reform. Because intimate partner violence comprises a small proportion of homicide victimization among male individuals (ie, 6%, vs 34% for female individuals), 39 this specification focused on a population that was unlikely to show substantial benefit from the domestic violence–related firearm restrictions. Finally, we conducted in-time placebo tests, setting the policy implementation year to the first quarters of 2015 and 2016, and in-space placebo tests, setting the implementation state to control states.

In the 3 years preceding New Jersey’s 2017 bail reform, 1382 people died from firearm injuries (mean [SD], 1.30 [0.05] deaths per 100 000 people annually), and there were 2562 shootings (mean [SD], 2.41 [0.31] shootings per 100 000 people annually). In the 3 years following policy implementation, there were 1219 firearm fatalities (mean [SD], 1.14 [0.13] fatalities per 100 000 people annually) and 2620 shootings (mean [SD], 2.46 [0.16] shootings per 100 000 people annually) (eTable 1 in Supplement 1 ). Nationally during these years, the mean (SD) annual rate of firearm mortality was higher and increased from 2.79 (0.14) per 100 000 (2014-2016) to 3.01 (0.01) per 100 000 (2017-2019). There were large racialized inequities in firearm mortality in New Jersey that persisted across the study period, with rates among Black people well above the state average during this time (mean [SD], 4.88 [0.52] per 100 000 in the 3 years prepolicy and 3.88 [0.62] per 100 000 in the 3 years postpolicy).

We next compared changes in firearm deaths and shootings in New Jersey after bail reform with trends in the synthetic control. For the augmented SCM, 27 the control group is generated using a weighted combination of states that did not implement bail or any other kind of pretrial detention reform during the study period, and weights can be positive or negative. As shown in Figure 1 , the state that contributed most to the synthetic control group and had the strongest positive weight is New York, which closely matched New Jersey’s rates and similarly did not change substantially over the study period. Our gap plots ( Figures 2 A and 2 B) comparing the prepolicy trends in each of our study outcomes suggest a close fit between what was observed in New Jersey and the synthetic control.

Our SCM estimates suggest that there were no significant changes in firearm-related mortality (cumulative ATT, −0.26 deaths per 100 000) or fatal and nonfatal shootings (cumulative ATT, −0.24 deaths per 100 000) in New Jersey after bail reform compared with our SCM. For models estimating NCHS firearm-related mortality, ATT estimates after 2017 ranged from −0.60 (95% CI, −1.20 to 0.00) in quarter 11 to −0.01 (95% CI, −0.71 to 0.46) in quarter 2. For models estimating GVA fatal and nonfatal shootings, ATT estimates after 2017 ranged from −2.20 (95% CI, −3.90 to 0.00) in quarter 12 to 0.97 (95% CI, −0.72 to 2.70) in quarter 7. Figures 2 A and 2 B plot the ATT, which is the difference in the rate of each outcome comparing New Jersey and the synthetic control. All point estimates for the ATT cluster around 0 (the null), and all 95% CIs include 0 (point estimates and 95% CIs are available in eTable 2 in Supplement 1 ). Our race-stratified models similarly found no change in firearm-related mortality among Black, White, or Hispanic racialized groups (eTable 2 in Supplement 1 ). Next, we added suicides to the rate of firearm mortality, which comprised approximately 40% to 50% of firearm deaths over the study period. After adding suicides to the rate of firearm deaths, we found that the synthetic control results were unchanged (eTable 3 in Supplement 1 ).

We explored the sensitivity of our results to different model specifications, additional covariates, and changing the pool of eligible control states. Our findings were consistent across residualized and nonresidualized models (eTable 3 in Supplement 1 ). We observed no significant change in firearm deaths or fatal and nonfatal shootings after New Jersey’s bail reform after adjustment for state gun law restrictiveness, gun ownership rates, and state senate partisan control, or when examining firearm mortality among men alone (eTable 3 in Supplement 1 ). When we broadened our donor pool by only excluding places that implemented bail reform but not other reforms to reduce pretrial detention, results were also null (eTable 3 in Supplement 1 ). Finally, our in-time placebo test that shifted the policy implementation to the first quarters of 2015 and 2016 found no significant change in firearm-related mortality (eFigure 1 and eFigure 2 in Supplement 1 ).

In this case-control study, we observed no significant change in firearm mortality or shootings in the 3 years following bail reform in New Jersey, overall and within racialized groups. Our results are consistent with previous evidence that found no increases in new criminal charges against people who were released pretrial under bail reform. 11 , 40 - 42 However, previous research has mainly studied outcomes among individuals released pretrial under bail reform, rather than for communities.

Bail reform remains an important tool for reducing pretrial detention and its adverse consequences for individuals and communities. Although we did not find evidence that bail reform was associated with reduced community-level firearm violence (eg, by mitigating the strain of jail incarceration on families and communities), we also did not find evidence supporting incapacitation and deterrence theories that would have suggested that reducing the incarcerated pretrial population by thousands of individuals per year would have increased rates of firearm violence. Supporters of the policy have argued that bail practices effectively criminalize poverty and fuel mass incarceration, with highly racially inequitable consequences. 10 Thus, bail reform may be warranted on justice and racial equity grounds, even if it does not reduce firearm violence.

There are also important critiques of New Jersey’s risk assessment tool and its implications for increasing racial inequities in pretrial detention, particularly in more recent years that extend beyond our study period. 43 The risk assessment tool uses 9 risk factors to evaluate the risk of rearrest and failure to appear in court, including factors such as other pending charges or convictions that may reproduce bias in the criminalization of Black and other racially minoritized people. Moreover, there are also charges including murder and serious gun offenses that automatically receive a no-release recommendation, preventing pretrial release and potentially contributing to racial inequities in pretrial detention. New Jersey and other localities are considering revisions and updates to their risk assessment tools, and the impacts of these policy reforms should also be evaluated for their consequences for racial justice and community health equity. 44 , 45

Our study contributes to the bail reform policy debate in 3 key ways. First, we move beyond an individualistic model of examining the effects of cash bail reform on recidivism or rearrest by broadening to community-level rates of violence, which speaks to the concerns and issues raised by both proponents and opponents of cash bail reform. Second, we examine multiple measures of firearm violence, drawing from official health statistics and validated crowd-sourced data to study both fatal and nonfatal gun violence. Third, our modeling strategy improves on prior studies by exploiting a novel cash bail intervention at the state level that occurred with enough postintervention observation time to precede the COVID-19 pandemic, which drastically influenced police arrests and jail populations. 46 Its strengths include comprehensive assessment of gun violence mortality and validated data on shootings, as well as robust covariate adjustment and a strong counterfactual comparison using the synthetic control.

There are also limitations of this study. First, we only analyzed data through 2019 because of the complex changes to court processing, policing practices, poverty, gun violence, and nearly all aspects of social life during the COVID-19 pandemic. Although these factors do not bias our study, we also are not able to provide more updated data on whether the trends we observed in this study persisted after the first 3 years of implementation. Moreover, between 2019 and 2022, the number of people held pretrial in New Jersey has increased. 43 Second, the generalizability of our results may be limited by the relatively restrictive gun law policy context in New Jersey compared with other US states. Moreover, a law removing firearms from those convicted of domestic violence was also implemented at the same time as New Jersey’s bail reform, and we thus cannot fully distinguish our findings as due to bail reform alone or in combination with this additional policy. In principle, if these domestic violence–related removals reduced overall firearm deaths, they could offset an increase in firearm deaths associated with bail reform. However, a recent review 47 found limited scientific evidence that this type of firearm restriction reduces overall firearm injury rates, consistent with evidence that the majority of firearm violence is not directed against intimate partners. Moreover, our sensitivity analysis among men alone, for whom intimate partner violence comprises a small proportion of total homicide victimization (6% in 2021, as opposed to 34% for women), 39 suggests that our main findings are not largely attributable to changes in intimate partner homicide during this period. Third, even before the policy, New Jersey’s jail population was relatively low and decreasing compared with other states, and our findings may not apply to states that have not taken additional steps to reduce jail incarceration.

Gun violence is a public health crisis in the US, and a main US policy response to gun violence has been increasingly punitive policies. Although the US has staggering levels of gun violence, this study found that community rates of fatal and nonfatal gun violence were not influenced by a policy that reduced levels of pretrial detention. Addressing exposure to firearm violence, and racial inequities therein, requires not only interrupting cycles of violence, but also interrupting cycles of racialized disinvestment and punitive policymaking.

Accepted for Publication: March 20, 2024.

Published: May 22, 2024. doi:10.1001/jamanetworkopen.2024.12535

Open Access: This is an open access article distributed under the terms of the CC-BY License . © 2024 Jahn JL et al. JAMA Network Open .

Corresponding Author: Jaquelyn L. Jahn, PhD, The Ubuntu Center on Racism, Global Movements, and Population Health Equity, Drexel University Dornsife School of Public Health, 3600 Market St, 7th Floor, Philadelphia, PA 19104 ( [email protected] ).

Author Contributions: Drs Jahn and Simes had full access to all of the data in the study and take responsibility for the integrity of the data and the accuracy of the data analysis.

Concept and design: Jahn, Simes.

Acquisition, analysis, or interpretation of data: All authors.

Drafting of the manuscript: Jahn, Simes.

Critical review of the manuscript for important intellectual content: All authors.

Statistical analysis: Jahn, Simes.

Obtained funding: Jahn, Simes.

Administrative, technical, or material support: Jahn.

Supervision: Jahn.

Conflict of Interest Disclosures: None reported.

Funding/Support: Research reported in this publication was supported by the Robert Wood Johnson Foundation Evidence4Action program (to Drs Jahn and Simes) and the National Institutes of Health, National Institute on Minority Health and Health Disparities (grant K01MD016956 to Dr Jahn).

Role of the Funder/Sponsor: The funders had no role in the design and conduct of the study; collection, management, analysis, and interpretation of the data; preparation, review, or approval of the manuscript; and decision to submit the manuscript for publication.

Data Sharing Statement: See Supplement 2 .

Additional Contributions: We thank this project’s Advisory Board and Policy Adviser Chanel Rhymes, BA, for their expertise and continued work toward ending cash bail. Taylor Riley, PhD, MPH (University of Washington), provided feedback on an early draft of this manuscript. The Advisory Board, Chanel Rhymes, and Dr Riley have been paid for their assistance with this research project.

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Make Your Note

Reform in Bail Law

• 14 Jul 2022
• 13 min read
• GS Paper - 2
• Fundamental Rights
• Judgements & Cases
• Government Policies & Interventions
• Transparency & Accountability

For Prelims: Types of Offences, Power to grant bail, CrPC, IPC, Supreme Court Judgements

For Mains: Effects of indiscriminate arrests on society, Challenges of overcrowded jails in Governance, Reforms in Policing and related judgements, Constitutional Protection

Why in News?

Recently, the Supreme Court underlined that “there is a pressing need” for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.

What is the Ruling About?

• The ruling is essentially a reiteration of several crucial principles of criminal procedure.
• Referring to the state of jails in the country, where over two-thirds lodged are undertrials, the Supreme Court underlined that arrest is a draconian measure that needs to be used sparingly.
• The Code of Criminal Procedure (CrPC) was first drafted in 1882 and continues to be in use with amendments from time to time.

What is India’s Law on Bail?

• The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
• This would involve release on furnishing a bail bond, without or without security.
• Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant.
• Section 436 of the Code of Criminal Procedure, 1973 , lays down that a person accused of a bailable offence under I.P.C. can be granted bail. On the other hand, Section 437 of the Code of Criminal Procedure, 1973 lays down that the accused does not have the right to bail in non-bailable offences . It is the discretion of the court to grant bail in case of non-bailable offences.

What is Bail Law in the United Kingdom?

• The Bail Act of the United Kingdom, 1976 , prescribes the procedure for granting bail.
• A key feature is that one of the aims of the legislation is “reducing the size of the inmate population”.
• The law also has provisions for ensuring legal aid for defendants.
• Its Section 4(1) raises the presumption of bail by stating that the law applies to a person who shall be granted bail except as provided in Schedule 1 to the Act.
• For rejecting bail, the prosecution must show that grounds exist for believing the defendant on bail would not surrender to custody, would commit an offence while on bail, or would interfere with witnesses or otherwise obstruct the course of justice; unless the defendant must be detained for his own welfare or protection; or in other circumstances.

How has the Supreme Court rules on Reforms?

• The court made this point to signal that despite its rulings, structurally, the Code does not account for arrest as a fundamental liberty issue in itself.
• It also highlighted that magistrates do not necessarily exercise their discretionary powers uniformly.
• Persons accused with the same offense shall never be treated differently by the same court different courts.
• Such an action would be a grave affront to Articles 14 and 15 of the Constitution of India.
• The court advocates for framing of a separate law that deals with the grant of bail.
• Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence.
• He/she can also be arrested to prevent such person from making any inducement, threat, or promise to any person according to the facts, so as to dissuade him from disclosing said facts either to the court or to the police officer.
• One more ground on which an arrest may be necessary is when his/her presence is required after arrest for production before the Court and the same cannot be assured.”
• It held that lower courts must satisfy that these conditions are met and “Any non-compliance would entitle the accused for grant of bail”.
• These sections relate to various stages of a trial where a magistrate can decide on release of an accused.
• These range from power of the magistrate to take bond for appearance (Section 88) to power to issue summons (Section 204).
• The Supreme Court held that in these circumstances, magistrates must routinely consider granting bail, without insisting on a separate bail application.
• The CBI has already communicated earlier orders of the Court to special judges under its jurisdiction.
• This would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years.

Legal Framework for Criminal Jurisprudence in India

• The Indian Penal Code (IPC) is the official criminal code of India drafted in 1860 on the recommendations of the first law commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of Lord Thomas Babington Macaulay.
• The Code of Criminal Procedure (CrPC) is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1st April 1974.

What Protection does the Constitution provide against Indiscriminate Arrest?

• Article 20 provides Protection against indiscriminate arrest by stating that “No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”
• Article 21 provides Protection of Life and Personal Liberty
• Detention of an individual infringes the Right to Life and Liberty guaranteed under Article 21 of Constitution of India.
• Article 22 provides Protection Against Arrest and Detention.
• Right to be informed of the grounds of arrest.
• Right to consult and be defended by a legal practitioner.
• Right to be produced before a magistrate within 24 hours, excluding the journey time.
• Right to be released after 24 hours unless the magistrate authorises further detention.

Way Forward

• Increasing awareness of laws among police personnel, increasing the number of police personnel and stations in proportion to the number of complaints in an area, and including social workers and psychologists in the criminal justice system.
• The focus also needs to be on the victim’s rights and smart policing . There is a need to study the rate of conviction of police officials and their non-compliance of law.
• As highlighted by the Supreme Court, a separate law on bail should be drafted for effective management of under trial cases in the country.
• Increase the inclusiveness in the police force from the different section of the society, so as to provide with balanced mindset to avoid indiscriminately arrests against any caste/class/community.

UPSC Civil Services Examination, Previous Year Questions (PYQs)

Q. With reference to India, consider the following statements:

• Judicial custody means an accused is in the custody of the concerned magistrate and such accused is locked up in a police station, not in jail.
• During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court.

Which of the statements given above is/are correct?

(a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2

Ans: (b) 

Explanation:

• In Judicial custody, an accused is in the custody of the concerned Magistrate and lodged in jail. While in the case of police custody, an accused is locked up in a police station. Hence, statement 1 is not correct.
• During judicial custody, the police officer in charge of the case may interrogate the suspect but with prior permission from the magistrate. In the case of police custody, the police officer can interrogate the suspect but must produce him before the court within 24 hours. Hence, statement 2 is correct.
• Therefore, option (b) is the correct answer.

• Nation & World

Charitable bail cap temporarily halted by federal judge ahead of new bail law taking effect

A federal judge has temporarily halted enforcement of a key part of a controversial cash bail law in Georgia that was set to take effect this week.

The law would have restricted individuals and advocacy organizations from posting charitable bail more than three times a year, while surety bonds, used by bail bond agents, would not be capped.  

After the Atlanta-based Barred Business Foundation and two individual members of the Athens Area Courtwatch Project filed a lawsuit against Georgia Gov. Brian Kemp, U.S. District Judge Victoria Marie Calvert blocked Section 4  of Senate Bill 63 from taking effect for an additional 14 days.  

More: 'Unjust?' Cash bail reform advocates react to controversial new law

John Cole Vodicka, a member of the Athens Area Courtwatch Project, celebrated the ruling, saying it will enable them to continue posting charitable bail while the injunction is in place. 

“We were encouraged,” Vodicka said. “We believe [SB 63] is unconstitutional. We hope the judge will see it that way too, and in the coming weeks will rule it unconstitutional.” 

So far this year, the Athens Area Courtwatch Project, in partnership with the Oconee Street United Methodist Church, has bailed 33 individuals out of jail who would otherwise not have been able to afford bail. 

“Had this law been in effect on Jan. 1, we'd have been out of business on Jan. 31,” Vodicka said. The organization focuses on small bonds for individuals who cannot afford to post their own, sometimes posting bail as low as $1. 

More: Georgia Senate passes bill adding 30 crimes that require bail; also makes it harder to post bail

“The folks that we're bailing out almost all have been misdemeanor defendants," he added. “So they stay in jail only because they don't have the resources to purchase their liberty. The Court Watch Project is opposed to cash bail. We think it does discriminate because basically, if you're a person of wealth, you can purchase your way out prior to a trial, and if you're not, you stand a good chance of staying in jail pretrial, and losing your job, losing family, losing other resources that you might have.” 

The ACLU of Georgia, who is representing the plaintiffs, also released a statement applauding the ruling. 

“We are encouraged by the judge’s ruling and its recognition that this law is unnecessary, harmful, and likely unconstitutional,” ACLU of Georgia Legal Director Cory Isaacson said. “We are relieved for our Plaintiffs and the many people across the state that they serve. It's unconscionable that people doing charitable bail work would face criminal penalties simply because they are helping people who are languishing in jail because of their poverty and have no other means of relief.”   

In addition to the charitable bail cap, SB 63 adds 30 additional felony and misdemeanor crimes to the list of bail-restricted offenses, meaning that those accused of crimes would be required to post cash bail. This portion of the law did take effect on July 1 as scheduled. 

More: ‘A step back for voters’ rights’: Civil, voting rights groups react to new Georgia election law

The enjoinment on the cash bail cap is currently set to expire on July 12, unless Judge Calvert rules to extend it further.  However, resources for Georgia residents who cannot afford bail have already dwindled. In June, national bail charity The Bail Project announced that it was closing its Atlanta office in preparation for SB 63 taking effect.

Gov. Kemp’s office declined to comment, citing pending litigation. Attorney General Chris Carr's office did not immediately respond to a request for comment.

Maya Homan is a 2024 election fellow at USA TODAY, focusing on Georgia politics. Follow her on X, formerly Twitter, as @MayaHoman.  

Springfield officials push for bail reform following Sci-Tech security guard release

SPRINGFIELD, Mass. (WGGB/WSHM) - We’re getting answers on bail laws right here in the Bay State.

Our deep dive comes just a week after a Springfield high school security guard, now facing several gun trafficking charges received a low bail from a judge right here in Hampden County.

Western Mass News got the fallout from local and state leaders.

Pablo Correa, 44, now faces over a dozen gun-related charges. He’s out on $10,000 bail, but some say he should be behind bars.

The Commonwealth urged the court to go to $50,000.

“District Attorney Gulluni pursues a heavy and high bail and then the judge turns around and knocks it down tremendously to which this individual the same day walks back out on our streets,” Mayor Domenic Sarno told us.

Sarno is pushing for bail reform to stop suspects like Correa, a High School of Science and Technology security guard from receiving low bail.

Correa’s employment history one of the factors that led to the bail amount, but the city’s leader and school committee chair says it’s time to put out a new resume.

“He’s working, he has a job, you know, we aren’t taking him back,” Sarno said.

He urged state lawmakers to give prosecutors a new right to appeal the bails handed down by judges.

“A defendant comes in, he or she doesn’t like their bail and or their bail restrictions, they have the right from district court to bump it up to superior court, if they don’t like it there, they have the opportunity to bump it up to a single justice Supreme Court, we the people have no such opportunity,” he added.

The city’s longest-serving mayor isn’t alone in his demands for new bail policies.

“The bail reform is key. Dangerousness hearings and not just making them a word but making them a process, where the district attorney can exercise his good judgement and his staff good judgement to bring someone back in front of the court and say this person belongs in jail.”

Even with renewed calls for new bail laws where do our current ones stand amongst our New England neighbors?

“Massachusetts bail laws take a moderate approach compared to other states, offering considerable judicial discretion while maintaining certain safeguards. For example, unlike New York, which does not allow judges to consider public safety when setting bail, Massachusetts does. Some states like New York and Connecticut mandate nonmonetary release for certain offenses if the defendant poses no flight or safety risk. Massachusetts has no such requirement requiring release without cash bail,” National non-profit R Street Institute told Western Mass News

It’s important to note Correa’s bail was set based on a number of factors, including his track record in the community, his employment record, and the nature of his charges.

Copyright 2024. Western Mass News (WGGB/WSHM). All rights reserved.

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New Jersey’s Bail Reform Act Putting Community Safety At Risk

OP-ED Negative Effects of New Jersey’s Bail Reform Act

Trenton, NJ – New Jersey’s Bail Reform Act, enacted in 2017, aimed to create a fairer criminal justice system by reducing the reliance on cash bail. While the legislation has been praised for addressing socio-economic disparities, it has also faced significant criticism for its unintended consequences, particularly concerning public safety and repeat offenses.

One of the primary criticisms of the Bail Reform Act is the increase in recidivism. Law enforcement officials have reported a rise in the number of repeat offenders who are released without bail, only to commit new crimes shortly thereafter. According to the New Jersey State Police, the rate of re-arrests for individuals released under the new system has surged, contributing to a sense of insecurity among residents.

Furthermore, the legislation has strained police resources. With more individuals being released pre-trial, officers are spending increased time re-arresting repeat offenders, which detracts from their ability to address other crimes. This cycle of arrest and re-arrest has become a significant burden on law enforcement agencies across the state.

The Bail Reform Act was designed with noble intentions, aiming to eliminate the bias against economically disadvantaged individuals who could not afford bail. However, the rise in criminal activity among those released pre-trial has led to calls for a reassessment of the system. Lawmakers and community leaders are now faced with the challenge of balancing fairness with public safety.

In response to these issues, some legislators have proposed amendments to the Bail Reform Act. These include allowing for greater judicial discretion and implementing more stringent conditions for release in cases involving serious offenses. The ongoing debate highlights the complexities of criminal justice reform and the need for a system that ensures both equity and safety.

NEW YORK, NY - A 31-year-old man was stabbed on the southbound "A" platform of the West 42 Street subway station following a verbal dispute with four unidentified men. The incident occurred late Tuesday night, at approximately 11:36 PM.

After the altercation, the suspects fled to an unknown location. Emergency Medical Services transported the victim to NYC Health and Hospitals/Bellevue, where he was listed in stable condition.

Descriptions of the individuals involved have been released by the police. The first suspect is described as a male, around 30 years old, with a dark complexion, medium build, and short black dreadlocks, last seen wearing a black hooded sweatshirt, dark shorts, a blue baseball cap, and black or white shoes. The second, also with a dark complexion and similar age range of 18-22, wore a white t-shirt, black pants, and white or blue shoes.

The third suspect is a male with a medium complexion, around 18-22 years old, approximately 5'10", with black hair, seen in blue jeans, blue underwear, black sandals, and carrying a red book bag. The fourth suspect, around 25 years old, has a dark complexion, medium build, short black hair, and brown eyes, and was last seen in white-colored clothing with black shoes. The investigation is ongoing as authorities continue to search for the suspects.

NEW YORK, NY - A 27-year-old man was assaulted and robbed by five individuals on the evening of Thursday, June 20, in front of 77-11 Roosevelt Avenue. The incident, which occurred around 10:00 PM, involved the attackers striking the victim multiple times in the head with blunt objects and threatening him with a knife.

The assailants forcibly took a gold necklace from the victim, valued at approximately $1,500, before fleeing the scene on foot in an unspecified direction. The victim sustained head injuries and was transported to NYC Health and Hospitals/Elmhurst, where he was reported to be in stable condition. Following the incident, police have made one arrest related to the attack.

Descriptions of the remaining suspects have been provided. All four are described as males with light complexions and slim builds. The first was last seen wearing a black LA baseball hat, white t-shirt, black Nike shorts, and white sneakers. The second wore a black baseball hat, white t-shirt, and multi-color shorts with white sneakers.

The third suspect was dressed in a navy blue Yankee baseball hat, grey t-shirt, black shorts, white sneakers, and carried a black cross-shoulder bag. The fourth suspect was seen in a black LA baseball hat, black surgical mask, white t-shirt, black Nike sweatpants, black sneakers, and a black fanny pack. The investigation is ongoing as authorities continue to search for the remaining suspects.

BROOKLYN, NY - The New York City Police Department is asking for the public’s help in locating Souleymane Ndiaye, a 29-year-old resident of Brooklyn, who has been reported missing. Ndiaye was last seen on Saturday, June 8, at his home located at 1652 Nostrand Avenue, within the jurisdiction of the 67th Precinct.

Described as 5'9" tall and weighing 160 pounds, Ndiaye has a slim build, brown eyes, and black hair. The circumstances of his disappearance have prompted concerns for his safety, and the NYPD is urging anyone with information to come forward to assist in locating him.

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