Guilty Until Proven Guilty: Effective Bail Reform as a Human Rights Imperative
DePaul Law Review (Forthcoming)
53 Pages Posted: 20 Apr 2020 Last revised: 14 May 2020
Date Written: December 7, 2019
The continued existence of cash bail as a tool to subjugate the most vulnerable is among the most pressing civil rights issues today. Cash bail morphs criminal convictions from an adjudication of factual and legal guilt to an inquiry into wealth status. It creates an income-based system of differential justice by detaining the poor and freeing the rich. The negative consequences of prolonged detention therefore redound to the jailed-but-poor, distorting the criminal process by encouraging defendants to plead guilty merely to secure release. Although jurisdictions are increasingly reconsidering their bail systems, too many either allow this travesty to continue unimpeded or have enacted putative reforms which transmute inequality without eliminating it, especially through the use of algorithmic risk assessment tools which — despite being hailed as a panacea — only re-entrench existing biases under a sheen of scientific objectivity. Consequently, this paper seeks to reconceptualize bail reform, moving it from a subjective moral foible to an objective legal mandate using the framework of the international human right of access to justice. It notes the ways in which both cash bail and putative reforms violate the structural and procedural guarantees of access to justice.
Keywords: bail, criminal justice reform, bail reform, poverty, algorithmic risk assessment, access to justice, international human rights
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