AuthorVan Brunt, Alexa
PositionSpecial Issue on Bail and Pretrial Detention

TABLE OF CONTENTS INTRODUCTION 703 I. THE HISTORY OF CASH BAIL REFORM IN THE UNITED STATES AND IN ILLINOIS 709 A. The Bail Experience in Colonial America 710 B. Pretrial Release and Bail Reform Efforts in the "Modern" Age 713 1. The Emergence of the "Money Bond" System 713 2. Judicial Attitudes Toward "Excessiveness" in Bond Setting and the Impact on the Incarceration of the Poor 719 3. The First Wave: The Proliferation of Bail Projects and the Bail Reform Act of 1966 723 4. The Second Wave of Bail Reform and the Matter of Public Safety 731 5. The Consequences of Considering "Dangerousness" in Bail Setting 738 II. "THIRD WAVE" LEGAL THEORIES IGNITE FRESH DEBATE ABOUT THE WISDOM AND LEGALITY OF THE TRADITIONAL SYSTEM OF PRETRIAL RELEASE 742 A. Established Legal Principles for Reform: Money Bond as a Form of Wealth Discrimination Under the Due Process and Equal Protection Clauses 743 B. Pretrial Detention May Only Be Imposed With Sufficient Procedural Protections 750 III. RESULTS ON THE GROUND: WILL THE REARTICULATION OF LIBERTY PRINCIPLES TRANSLATE TO GENUINE SYSTEMIC TRANSFORMATION? 753 A. Third Wave Bail Reform Efforts and Their Ramifications for Pretrial Liberty 754 B. Case Study: Campaign to Eliminate the Use of Cash Bond in Cook County, Illinois 761 CONCLUSION: OBSERVATIONS IN SUPPORT OF A JUST SYSTEM OF PRETRIAL ADMINISTRATION 770 INTRODUCTION

The criminal justice system is in the midst of what has been termed the "third wave" of bail reform in the United States. (1) The current movement--similar to reform efforts in the mid-twentieth century--seeks to end a system of ingrained, institutionalized wealth-based incarceration. (2) As we recount, the current bail reform efforts have resulted in a number of remarkable early successes. This Article aims to provide a historical context in which to evaluate these recent achievements and, in particular, to assess their staying power. We are not bystanders to the current reform efforts. We write out of a personal commitment to ending unjust pretrial incarceration of those too poor to purchase freedom. (3) Section I provides a historical overview of the institution of money bond and efforts to reform that system. Section II describes the legal arguments that present-day reformers are deploying to push for an end to wealth discrimination in pretrial incarceration. Section III outlines the results of litigation attacking the bond system. And Section IV offers some concluding, cautionary remarks about how to cement and institutionalize meaningful change.

Section I begins with a brief history of the antecedents of the United States' pretrial release system. We then turn to an overview of bail reform efforts (4) in the decades since Robert F. Kennedy, in 1964, decried a system that enabled those with means to gain their freedom but consigned the poor to jail for inability to post bond. (5) The mid-twentieth century movement-retrospectively termed the "first wave" of bail reform--coincided with the civil rights movement and the War on Poverty. High-minded reformers, from the federal halls of power to the non-profit sector to the academy, imagined a system in which the presumption of innocence would be honored; the overwhelming majority of criminally accused persons would be entitled to freedom prior to trial; and, certainly, a person's wealth would not be the arbiter of whether he remained in custody following arrest. (6)

But pretrial administration in this country has proceeded along two divergent tracks. The ideals of liberty and presumptive innocence part company with the reality of judicial decision-making in local criminal courts. Judicial officers overseeing bail hearings--driven by concern for community safety and, even in some cases, by a desire to preemptively punish--have consistently paid less heed to state and constitutional law than to their own intuition about who is deserving of pretrial release. (7) This permits the insertion of discrimination, particularly against the poor and black defendants, into the pretrial process. (8) Thus, "first wave" de-incarceration efforts were met by a "second wave" (perhaps, more accurately, a powerful undertow), animated by the growing concern in the 1970s and 1980s for public safety, the tough-on-crime rhetoric that politicians adopted in response to that concern, and the War on Drugs. The District of Columbia and the federal government passed statutes that authorized judges to detain accused persons in the interest of community safety, (9) and the courts upheld these laws. (10) Many other jurisdictions, Illinois among them, followed the same path."

This about-face in rhetoric and in policy led to ballooning jail populations around the country. (12) Black individuals were increasingly overrepresented among those held prior to trial. (13) Money bail was pressed into service as a means to assure public safety. (14) Judges imposed bonds that accused persons could not possibly pay, knowing that the unattainable bonds would keep the defendants incarcerated--even though they were presumptively innocent and had never been found, after a proper hearing, to pose a danger to anyone. (15)

The current "third wave" has been driven by an emerging consensus across the political spectrum that the decades-long expansion of the criminal justice apparatus is cruel, counterproductive, and expensive, (16) as well as disproportionately harmful to people of color--particularly black people. (17)

Section II of this Article provides a sketch of the well-established due process and equal protection principles that protect the indigent from unjust confinement. It also describes how reformers have recently deployed this precedent to attack the pretrial confinement of those who are unable to purchase their freedom. In particular, recent class action lawsuits have been able to adapt established constitutional law governing the rights of the indigent to new purpose. (18) These suits serve as a beacon to future legal efforts, even as they provide a stark reminder that much of the country continues to use money to manage the purported flight and recidivism risk of pretrial defendants. As Section II recounts, due process and equal protection challenges to money bail have enjoyed limited success in the current environment. Their future success, however, remains uncertain.

In Section III, we examine the unfolding results of the "third wave" reform efforts nationwide. Reformers can now point to momentous successes. Jurisdictions throughout the country are moving toward pretrial release systems that are not based on wealth. (19) In Maryland, New Mexico, and Arizona, rules have recently been implemented prohibiting the use of cash bonds that the defendant is unable to pay. (20) In Cook County, the chief judge of the court system has administratively ordered that bonds in all cases must be within the defendant's means. (21)

Yet, despite prior and current efforts, the poor and the indigent remain locked up in local jails throughout the nation. (22) The successes in limiting the reliance on money bail have been driven in part by reformers' willingness, in the interest of tactical advantage, to concede that undesirable defendants may be restrained on home confinement or on electronic monitoring, or even incarcerated on "no bond," without the possibility of release. (23) At the same time, pretrial services entities around the country are increasingly relying on predictive models to assess the risk posed by the release of individual defendants. (24) These models risk normalizing and enhancing the practice of "preventive detention."

We view some of these trends with alarm. Skepticism is warranted when the discriminatory money bail system is traded for a remade pretrial release program premised on the identification of a cadre of defendants who are purported to present a threat to society and are thus subject to some form of preventive detention. (25) Cash-based pretrial incarceration should not be replaced by a more well-honed detention system, whether by electronic monitoring or full-scale detention. We see a risk that the latest set of bail reforms will widen the net of detention by failing to fully eradicate the traditional money bail system while also encouraging more intentional forms of preventive detention.

Accordingly, the final section of the Article suggests a set of baselines on which reformers must insist to create a just system of pretrial release. Under this system, courts default to pretrial release of those charged with crimes and provide those individuals with support to help prevent failures to appear in court and mitigate recidivism. While this model is not without some societal risk, we posit that, in the end, it is the only tolerable outcome under our constitutional system and in light of the formal understanding of bail in this country.


    Understanding the state of America's bail system today requires a brief analysis of the origins of the jurisprudence and rights undergirding the pretrial release process. This inquiry begins, in Section A, with a review of the early American bail scheme. We then turn, in Sections B(1) and (2), to a description of the transformation of this system over time from one primarily of pretrial release to one of pretrial detention, with wealth as the defining arbiter of a charged person's freedom. In the remaining subparts of Section B, we describe the reform efforts of the mid-twentieth century (the "first wave" of bail reform) and the countervailing movement to toughen detention rules that followed (the "second wave").

    In sum, previous campaigns to change the system have been unable to dislodge an entrenched reliance on judicial custom that includes the assignment of monetary bail, as the mostly failed first wave efforts demonstrate. As a result, bond administration in this country continues to be characterized by the...

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