Dividing Bail Reform

• Author: Shima Baradaran Baughman
• Position: Professor of Law and Presidential Scholar, University of Utah College of Law
• Pages: 947-1025

947

Dividing Bail Reform

Shima Baradaran Baughman*

ABSTRACT: There are few issues in criminal law with greater momentum

than bail reform. In the last three years, states have passed hundreds of new

pretrial release laws, and there are now over 200 bills pending throughout

the states. These efforts are rooted in important concerns: Bail reform lies at

the heart of broader recent debates about equitable treatment in the criminal

justice system. Done right, bail keeps dangerous individuals off the streets;

done wrong, it keeps those with less economic means in jail longer. Some

jurisdictions are eliminating money bail. Others are adopting risk assessments

to determine who to release. Still others are changing state statutes,

constitutions, and factors that judges consider in the bail decision.

All of these reforms are fundamentally flawed. This is because nearly all of

these bail reform efforts fail to distinguish minor and serious crimes. Instead

they consider all crimes as interchangeable. This Article is the first to identify

this pervasive shortcoming in bail reform, and it makes two important

contributions to the literature. First, it distinguishes between minor and

serious crimes and proposes systematic changes to bail reform based on the

seriousness of the crime. It argues that individuals charged with

misdemeanors—accounting for the vast majority of criminal cases—should

be released presumptively and not detained except in rare circumstances. This

right is rooted in history and constitutional rights and even squares with a

plain interpretation of current state laws. Second, it shows how dividing bail

*

Professor of Law and Presidential Scholar, University of Utah College of Law. Special

thanks to the participants of the Misdemeanor Machinery: The Hidden Heart of the American Criminal

Justice System conference at the Boston University School of Law for engaging with me on this

topic, including Julian Adler, Judge Stephanos Bibas, Jenn Rolnick Borchetta, Robert

Boruchowitz, Judge David Breen, Jeffrey Fagan, Malcolm Feeley, Sarah Geraghty, Samuel Gross,

Eisha Jain, Irene Joe, Wendy Kaplan, George Kelling, Issa Kohler-Hausman, Gerry Leonard,

Karen Pita Loor, Sandra Mayson, Alexandra Natapoff, Jenny Roberts, David Rossman, Judge

Shira Scheindlin, Megan Stevenson, Susan Terrey, and Judge Michael Vitali. I am also indebted

to RonNell Anderson Jones and Cathy Hwang. I am grateful for the assistance of Madeline Aller,

Melissa Bernstein, Tyler Hubbard, Ross McPhail, Emily Mabey Swensen, Angela Turnbow,

Brittany Swicord, Patti Beekhuizen, Joseph West, Mariah Savage, Eli LeCates, Haden Gobel,

Ngozi Okidegbe and Hope Collins for research and editorial assistance on this Arti cle. I am

indebted to the editors of the Iowa Law Review for their work on this Article, particularly Kameron

Dodge, Clint Harris and Bernadette Nelson. A University of Utah faculty research grant made

this research possible.

948 IOWA LAW REVIEW [Vol. 105:947

will matter in important ways: demonstrating that this modest-seeming

proposal can have widespread theoretical and practical impact. Indeed, this

change will dramatically alter the landscape of state bail laws, bail schedules,

and risk assessments. In addition, it will have serious impact on some of the

most important criminal law debates of our time, including equity of

application in criminal law, prison overcrowding, and due process

protection.

I.INTRODUCTION ............................................................................. 949

II. BAIL AND MISDEMEANOR DEFENDANTS: NATIONWIDE

APPROACHES ................................................................................. 956

A.BRIEF HISTORY OF MISDEMEANOR BAIL RIGHT ......................... 957

B.PRETRIAL STAGE IS ESPECIALLY IMPORTANT FOR

MISDEMEANORS ...................................................................... 960

C.PRETRIAL RELEASE OPTIONS FOR MISDEMEANORS .................... 966

1.Citations in Lieu of Custody ......................................... 967

2.Release on Personal/Own Recognizance .................... 973

3.Money Bail ..................................................................... 975

4.Conditional Release for Misdemeanors ...................... 977

5.Misdemeanor Detention Before Trial ......................... 979

III.THE FELONY-CENTRIC NATURE OF BAIL REFORM ......................... 981

A.FELONY FACTORS APPLIED TO MISDEMEANORS WHOLESALE ...... 985

1.Defendant Appearance at Trial ................................... 986

2.Dangerousness of Defendant ....................................... 989

3.Nature of the Charge and Weight of Evidence ........... 995

4.Criminal Record ............................................................ 999

5.Community Ties, Residential and Employment

Circumstances ............................................................. 1000

B.MONEY BAIL SCHEDULES PROHIBIT MISDEMEANOR

DEFENDANTS FROM RELEASE .................................................. 1002

C.THE DANGER OF RISK ASSESSMENTS ....................................... 1012

IV.THE NEED FOR REFORM .............................................................. 1022

V.CONCLUSION .............................................................................. 1024

2020] DIVIDING BAIL REFORM 949

I. INTRODUCTION

Many American jurisdictions have undertaken bail reform efforts in

recent years.1 States and cities have eliminated money bail,2 adopted new state

laws and regulations,3 and changed factors for considering bail.4

The motivations behind these efforts are admirable, as problems with bail

are a major contributor to the staggering problem of mass incarceration. But

the reforms are missing a fundamental first step. All of these efforts ignore a

vital piece of the puzzle: misdemeanors.

1. See, e.g., ALASKA STAT. § 33.07.010 (2018) (creating a pretrial services program that

provides pretrial risk assessment, makes recommendations concerning pretrial release decisions

and provides supervision); ARIZ. REV. STAT. ANN. § 13-3967 (2018) (permitting any person with

a bailable public offense to be released “on his own recognizance or on the execution of bail,” as

specified by the court); CAL. PENAL CODE § 1320.10 (West 2019) (effective Oct. 1, 2019)

(classifying defendants as low-risk, medium-risk, or high-risk and setting various conditions for

release based on these categories); COLO. REV. STAT. § 16-4-105 (2017) (imposing conditions on

bond for certain offenses); CONN. GEN. STAT. § 54-64a(a)(2) (2017) (barring cash-only bail for

certain crimes and restricting the use of financial considerations for release in misdemeanor

crimes); 725 ILL. COMP. STAT. 5/110-5(a-5) (2018) (creating “a presumption that any conditions

of release imposed shall be non-monetary in nature and the court shall impose the least restrictive

conditions . . . necessary”); IND. CODE § 35-33-8-3.8 (2017) (mandating that courts consider

releasing a defendant without money bail if the results of a pretrial risk assessment show that the

defendant “does not present a substantial risk of flight or danger”); N.J. STAT. ANN. § 2A:162-17

(West 2017) (creating categories of pretrial release conditions applicable in certain

circumstances); N.Y. CRIM. PROC. LAW § 530.20 (McKinney 2018) (requirements that the court

“must or may order recognizance or bail,” unless the offense falls into a limited category of

exceptions); TEX. CODE CRIM. PROC. ANN. art. 17.03–17.033 (West 2017) (creating instances in

which eligible defendants may be released on a personal, non-monetary bond at the court’s

discretion); UTAH CODE. ANN. § 77-20-1 (LexisNexis 2017) (allowing persons eligible for bail to

be released with or without money bail based on the court’s discret ion); see also NAT’L

CONFERENCE OF STATE LEGISLATURES, TRENDS IN PRETRIAL RELEASE: STATE LEGISLATION UPDATE

1 (2018), http://www.ncsl.org/portals/1/ImageLibrary/WebImages/Criminal%20Justice/

pretrialenactments_2017web_v02.pdf [https://perma.cc/P2TY-2V2J]; PRETRIAL JUSTICE INST.,

THE STATE OF PRETRIAL JUSTICE IN AMERICA 13–14 (2017), https://university.pretrial.org/

viewdocument/state-of-pretrial-justice-in-americ [https://perma.cc/FK33-H2M2].

2. CAL. PENAL CODE § 1320.10 (West 2019); TEX. CODE CRIM. PROC. ANN. art. 17.03

–17.033 (West 2017); Thompson v. Moss Point, No. 1:15CV182LG-RHW, 2015 WL 10322003,

at *1 (S.D. Miss. Nov. 6, 2015); Order at 2, Powell v. City of Saint Antonio, No. 4:15-CV-840 (E.D.

Mo. Sept. 3, 2015), ECF No. 13; Pierce v. City of Velda City, No. 4:15-CV-570-HEA, 2015 WL

10013006, at *1 (E.D. Mo. June 3, 2015).

3. See, e.g., CAL. PENAL CODE § 1320.10 (West 2019); N.M. CODE R. § 5.408 (LexisNexis

2017); Arizona Code of Judicial Administration § 5-201: Evidence-Based Pretrial Services, No.

2014-12 (2014) (“Arizona Code of Judicial Administration (ACJA) section 5-201 authorizes

courts to operate pretrial service programs . . . § 5-201(E)(1) approves use of the validated

pretrial risk assessment tools . . . .”).

4. SHIMA BARADARAN BAUGHMAN, THE BAIL BOOK: A COMPREHENSIVE LOOK AT BAIL IN

AMERICA’S CRIMINAL JUSTICE SYSTEM 1–10 (2018) (discussing changing factors in pretrial release

throughout various states).