Bail reform is happening. Across the country, jurisdictions are beginning to recognize that contemporary pretrial systems rooted in money bail are discriminatory, ineffective, and (by and large) unconstitutional. A common and substantial component of contemporary reforms is an increased reliance on conditional release as an alternative to pretrial incarceration. In many ways, conditional release represents an improvement over money bail, but the practice of conditional release has its own pitfalls.
This Article identifies unforeseen and unplanned harms that can result from a system of conditional release and proposes five principles that jurisdictions can follow to eliminate or mitigate these harms. As the options for pretrial conditions continue to expand, judges may impose more conditions than are necessary, including conditions that are burdensome and ineffective. Because pretrial monitoring is inexpensive--especially when subsidized by user fees for pretrial monitoring--there is a risk that courts will impose monitoring and other conditions on people who would previously have been released without conditions. Taken together, these harms can prolong people's involvement in the criminal justice system, restrict their liberty in profound ways, set them up for pretrial incarceration through technical violations, and saddle them with unaffordable debts.
To responsibly use conditional release without replicating the harms of money bail, jurisdictions should adopt the following five principles. One, release on recognizance should be the norm and conditional release the exception. Two, the principle of parsimony should guide decisions over what conditions of release to impose--meaning that burdens placed on defendants and restrictions of their liberty should not exceed the legitimate interests of the government. Three, conditions should be minimal, related to the charged conduct, and proportionate to the risk of flight and pretrial criminal activity. Four, jurisdictions should not charge fees for conditional release, pretrial services, or pretrial monitoring. Five, restrictions on pretrial liberty should be evidence-based.
TABLE OF CONTENTS INTRODUCTION 680 I. PRINCIPLE 1: MAXIMIZE RELEASE ON RECOGNIZANCE 683 II. PRINCIPLE 2: FOLLOW THE PRINCIPLE OF PARSIMONY 686 III. PRINCIPLE 3: SUPPORT RATHER THAN SUPERVISE 691 IV. PRINCIPLE 4: DON'T CHARGE FEES 693 V. PRINCIPLE 5: CONDITIONS OF RELEASE AND RESTRICTIONS ON LIBERTY SHOULD BE EVIDENCE BASED 697 CONCLUSION 700 INTRODUCTION
In most jurisdictions in the United States, someone accused of a crime and awaiting trial is either released from jail or detained indefinitely because they cannot afford to pay money bail. Those who can afford to post bail--however dangerous they are, however high their risk of flight--get released. Those who cannot afford to post bail--even if they pose no danger to the community and are a sure bet to return for court--remain detained. (1) Under this pretrial system, it is better to be guilty, dangerous, and rich than to be innocent, harmless, and poor. America's discriminatory pretrial practices contribute to mass incarceration at great expense. Pretrial detention costs the United States approximately $14 billion each year, (2) and the increase in pretrial detention over the last few decades accounts for all of the net jail growth in the United States during that time. (3) On any given day, around half a million people are incarcerated having only been accused--not convicted--of a crime. (4) Empirical research has also found that "[H]ispanic and black defendants are more likely to be detained [pretrial] than similarly situated white defendants." (5)
Justice system actors and Americans at large are coming to view the money bail system as unfair and unwise. (6) To lower jail populations and provide equal treatment under the law, advocates are pushing a variety of reforms: procedural protections for preventive detention, cite-and-release standards, risk assessment tools, and the expansion of pretrial services, to name a few. Jurisdictions are increasingly looking to pretrial monitoring as an alternative to pretrial incarceration. As states and counties expand pretrial services, and as technologies such as GPS tracking and remote alcohol monitoring become more common, many courts now have a broader range of pretrial conditions at their disposal than the familiar options of detention, release on recognizance, or release on money bail.
On ethical, constitutional, and policy grounds, a system of conditional release is better than a system of jailing people on unaffordable bail without due process of law. But the expansion of pretrial release conditions carries its own pitfalls. One danger is that courts will impose conditions not only upon people whom the court would otherwise have detained, but also upon people whom the court would have otherwise released on recognizance. Another danger is that courts will underuse simple, effective conditions like phone call reminders for court dates, while overusing burdensome conditions such as drug testing, drug monitoring, in-person reporting, and GPS bracelets. (7) Jurisdictions may also seek to pass on the costs of pretrial monitoring to defendants by imposing fees to pay for drug testing, alcohol monitoring, and geolocation tracking. The overuse of conditions of release and the charging of fees can restrict people's liberty, prolong their involvement with the criminal justice system, and lead to technical violations of pretrial release, which in turn can result in revocation of release and imposition of jail time. In short, unnecessary release conditions and fees can set people up to fail and can replicate some of the harms of money bail.
This Article suggests a framework of five principles that jurisdictions should adopt to fairly and responsibly administer pretrial conditional release. First, consistent with the Supreme Court's admonition that "liberty is the norm" pretrial, (8) judges should maximize the use of release on one's own recognizance, imposing conditions only when truly necessary to prevent or deter flight and criminal activity. Second, the decision of what release conditions to impose should be governed by the principle of parsimony, which holds that punishment and deprivation of liberty should not exceed the legitimate interest of the state. Third, conditions should be the least restrictive possible, related to the charged conduct, and proportionate to the risk of flight and pretrial criminal activity. Conditions of release should be aimed at supporting, rather than supervising, the accused. Very few defendants willfully abscond pretrial; more often, they fail to appear because they lose track of their court date, lack transportation, or have competing work, family, and childcare obligations. (9) Pretrial services should be centered on positive interventions--such as phone or text reminders of court dates and transportation to court--rather than punitive deterrents--such as unnecessary drug testing and revocation. Fourth, jurisdictions should avoid charging fees for pretrial services, as these can create untenable pressure on poor defendants and their families, result in unnecessary incarceration when they are unable to pay, and exacerbate wealth and racial disparities. Pretrial justice is a public good that should be funded collectively by taxpayers. Fifth, dovetailing with the principle of parsimony, any restrictions on pretrial liberty should be evidence-based. Too often, jurisdictions routinely impose conditions without studying whether those conditions actually improve pretrial outcomes. (10)
PRINCIPLE 1: MAXIMIZE RELEASE ON RECOGNIZANCE
In a functioning pretrial system that obeys the constitutional requirement that "liberty is the norm" pretrial, (11) judges should maximize the use of release on one's own recognizance. The default rule should be to release pretrial defendants on recognizance. As jurisdictions move away from money bail, they are likely to adopt risk assessment tools and additional forms of conditional release, including drug testing, electronic monitoring, mental health treatment, and more. Conditional release should be understood as a restriction on pretrial liberty and should only be imposed when the prosecution has proved by clear and convincing evidence that it is necessary to prevent flight and secure public safety. Risk assessment tools should be calibrated to recommend release on recognizance as the default pretrial outcome.
Most jurisdictions have statutes or court rules that require judges to impose "the least restrictive condition[s]" determined to reasonably assure the defendant's appearance at trial and public safety. (12) This least restrictive condition is usually release on recognizance, which requires that someone accused of a crime promise to return to court and not commit a crime while on release. That is enough of a condition for most people, as the evidence bears out. In jurisdictions that have implemented reforms that result in releasing most people on recognizance, the overwhelming majority of those people have shown up for court dates and have not committed crimes on release. (13) To impose conditions that restrict liberty beyond release on recognizance, the government should have the burden of proving by clear and convincing evidence that a restriction on liberty is necessary.
Jurisdictions should calibrate pretrial processes to accelerate the release of people who are unlikely to flee or harm others. Some jurisdictions have introduced procedures that allow such people to be released from jail on their recognizance without a hearing before a judge. (14) Commonly in these jurisdictions, a pretrial services agency has been granted the authority to identify people who are low-risk and to release them. (15) Other jurisdictions have adopted policies that encourage the police to issue a summons rather than arrest someone who is...