Rethinking Bail Reform

Abstract

The monetary bail procedures the criminal justice system employs for detaining defendants before trial, when they are cloaked with the presumption of innocence, have come under increasing criticism of late. Legal scholars and social scientists alike are uniform in their belief that monetary bail systems are expensive, unjust, and do little to further public safety or to ensure a defendant’s return to court. Burgeoning scientific research has led to the creation of evidence-based risk assessment tools designed to predict a defendant’s recidivism risk and to reduce detention rates for defendants being held on bonds they cannot afford. But, thus far, the consensus approach to achieving bail reform has focused on litigation-based, one-size-fits-all solutions that are limited in scope. This Article calls into question the notion that litigation is the sole and superior approach for achieving bail reform. It discusses the history of the American bail system and surveys current scholarly critiques of the system of money bond, as well as recent and pending lawsuits challenging standard bail schedules and the imposition of money bonds in cases of non-violent misdemeanors. The Article then focuses on the limitations of bail reform litigation and the obstacles to achieving reform through the courts. Using specific examples where reform has been achieved outside of litigation, the Article also discusses possible extra-judicial alternatives for holistic bail reform, including community bail funds, travel assistance programs, and legislative amendments. It concludes that, while litigation may be an effective tool for eliminating monetary bonds in certain jurisdictions, the better and more comprehensive approach for bail reform is one that employs both judicial and extra-judicial strategies.