Judicial discretion and the unfinished agenda of American bail reform: lessons from Philadelphia's evidence-based judicial strategy

• Pages: 115-157
• Published date: 25 August 2009
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000047007
• Date: 25 August 2009
• Author: John S. Goldkamp,E. Rely Vîlcicã

JUDICIAL DISCRETION AND

THE UNFINISHED AGENDA OF

AMERICAN BAIL REFORM:

LESSONS FROM PHILADELPHIA’S

EVIDENCE-BASED JUDICIAL

STRATEGY

John S. Goldkamp and E. Rely Vıˆ lcica

˜

ABSTRACT

Following in the footsteps of critics of the 1920s and 1930s, Caleb Foote’s

1954 study of the bail system in Philadelphia set the agenda for bail

reform in the United States focusing on judicial discretion and the

inequities of a predominantly financially based pretrial detention system.

This article argues that the bail reform movement originating in the 1960s

fell short of its objectives in its failure to engage judges in the business of

reform. From Foote’s study on, Philadelphia has played a role historically

in studies of bail, detention, and reform. The article considers the

experience of Philadelphia’s judicial pretrial release guidelines innovation

from the 1980s to the present and its implications as an important

contemporary bail reform strategy in addressing the problems of bail,

release, and detention practices. The implications of the judge-centered

Special Issue: New Perspectives on Crime and Criminal Justice

Studies in Law, Politics, and Society, Volume 47, 115–157

Copyright r2009 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000047007

115

pretrial release guidelines strategy for addressing pretrial release

problems in urban state court systems are discussed in light of the

original aims and issues of early bail reform.

The social interest in the scientific administration of justice is much greater than the

public commonly conceives.

–Pound (1913, p. 328)

INTRODUCTION

When one discusses ‘‘bail reform,’’ which these days one rarely does, there is

an implicit assumption that bail reform is something that has already

occurred, perhaps even long ago. The term conjures up a ‘‘movement’’ from

back in the days of movements, probably starting and ending sometime in

the 1960s, which saw the Warren Court revolution, the civil rights move-

ment, Attorney General Robert F. Kennedy, the National Bail Conference,

the pioneering work of the Vera Institute in New York, and the landmark

Federal Bail Reform Act of 1966, as well as many other compelling

developments. In certain important respects, depending on what one means

by ‘‘reform,’’ this assumption of bail reform mainly as an event of the past

may not be too far off the mark. Although many important changes in

American bail practices have transpired since that decade of ferment, bail

reform in local jurisdictions has failed to accomplish its most difficult

challenges.

The main explanation for the limited success of bail reform lies in its

failure to engage judges centrally, to make bail reform ‘‘judicial’’ reform.

However, the pressures of population, crime, local law enforcement,

and growing criminal caseloads periodically force a moment of reckoning,

when pretrial release and detention practices – by extension the criminal

courts – will come under critical scrutiny. Then, again, often because of jail

overcrowding, questions about judicial bail practices move to center stage.

Written in a period of false quiet regarding pretrial release and detention

issues in the United States, this essay considers a particular bail reform

strategy that stands apart from its predecessors because it focused directly

on the improvement of judicial decisionmaking by engaging judges centrally

in the process of study, policy debate, and change. Piloted first in

Philadelphia in the early 1980s, the judicial pretrial release guidelines

1

offered

a different, complementary, but more direct approach to improvement of

JOHN S. GOLDKAMP AND E. RELY VI

ˆLCICA

˜

116

pretrial release and detention practices than the Vera Institute information-

based innovation of the 1960s and early 1970s (Goldkamp & Gottfredson,

1985;Goldkamp, Gottfredson, Jones, & Weiland, 1995). As the reform

agency model initiated by Vera (Ares, Rankin, & Sturz, 1963) has given birth

to reform legislation – for example, the Federal Bail Reform Acts of 1966

and 1984 and the preventive detention law in the District of Columbia

2

–

still missing in the new century is a viable method for addressing the difficult

problems of judicial discretion that lie at the core of bail, pretrial release,

and detention problems in the United States. Often problems that cannot

be addressed adequately by criminal justice decisionmakers themselves

are addressed by legislatures or emergency court orders through imposition

of rules that may not be closely attuned to decisionmaking challenges and

realities.

The main experience of the judicial guidelines strategy for pretrial release

has been generated in the Philadelphia courts, although bail guidelines (later

renamed ‘‘pretrial release guidelines’’)

3

were also field tested in several other

jurisdictions with mixed results (Goldkamp et al., 1995). However, perhaps

beginning with Foote’s classic – and highly critical – study of bail in the

1950s (Foote, 1954), Philadelphia has played a special role in the history of

bail research and reform in the United States. The Philadelphia experience

with judicial pretrial release guidelines has marked a different path to bail

reform that still poses an alternative model for dealing with problems of bail

and jail of relevance to the current struggles of courts and justice systems in

many localities. This essay draws lessons from the experience of judicial

pretrial release guidelines in the Philadelphia courts over the last quarter

of a century and considers the implications of this judicial strategy – its

method, process, and challenges – for addressing difficulties of pretrial

release and detention as they continue to confront localities and state court

systems in the 21st century.

The judicial pretrial guidelines strategy is not quintessentially ‘‘new,’’ any

more than discussions of problems with judicial discretion in American bail

practices are new (see, e.g., Pound, 1906, 1913;Pound & Frankfurter, 1922;

Beeley, 1927;Moley, 1930;Wickersham Commission, 1931;Morse &

Beattie, 1932;Foote, 1954) or any more than ‘‘evidence-based’’ crime policy

is new (that term describes much of criminal justice research over many

decades). In fact, the judicial guidelines strategy for bail has its origins in

the work of Don Gottfredson and colleagues (Gottfredson, Wilkins, &

Hoffman, 1978) exploring a voluntary, self-regulating action-research

approach to parole and sentencing decisionmaking. Because the judicial

guidelines method structures but preserves judicial discretion and seeks to

Lessons from Philadelphia’s Evidence-Based Judicial Strategy 117