Bail Again: Reforming Appellate Review of Bail Determinations in State Court

Abstract

On any given day, local jails detain nearly half-a-million people who cannot afford bail. Opposition to this status quo, and to monetary conditions of pretrial release more broadly, has reached a fever pitch in recent years. Critics from across the political spectrum decry bail as a wellspring of mass incarceration and acknowledge its profoundly discriminatory effects, particularly within low-income communities of color. Academic studies link bail to poorer case outcomes and a myriad of destabilizing collateral consequences for pretrial detainees. And local justice systems have begun to grapple with the high human and economic costs of incarcerating large numbers of people still presumed innocent under the law. Amid widespread agreement that bail is broken, it is easy to forget that the system has been in a suspended state of crisis for decades and proved resistant to change before. In the face of this critical and persistent problem, this Note offers appellate review of bail determinations as a viable avenue for reform. By revamping the “bail appeal”—a procedure that has received little attention from reformers and academics alike—states have an opportunity to reduce the scourge of pretrial detention, conserve the time and resources of local justice systems, and provide a durable promise of pretrial justice.