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

Published date25 August 2009
Date25 August 2009
AuthorJohn S. Goldkamp,E. Rely Vîlcicã
John S. Goldkamp and E. Rely Vıˆ lcica
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
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)
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
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
a different, complementary, but more direct approach to improvement of
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
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
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’’)
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

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