Bail, Pretrial Release, and Detention: The Critical Need for Judicial Reform

Abstract

Criticisms of bail practices in the United States have been prevalent during most of this century.1 A vast literature has documented the problems inherent in bail systems and attempts to institute reform.2 Despite two generations of “bail reform,” the first focusing on “community ties” and personal recognizance release and the second on public safety and preventive detention, pretrial release decisionmaking by the courts remains a central problem for criminal justice. In recent years, jail populations have grown to unprecedented levels, and jail overcrowding is now the rule, rather than the exception, in jurisdictions across the country. The numbers of persons confined before trial has outstripped any increase in crime, moving in lockstep with public-safety-oriented bail laws during the 1970s and 1980s that permit greater use detention. As the pressures mount to discover better approaches to managing the criminal caseload and the use of confinement at all stages of the criminal process, concern for the rights of individual defendants has waned. Serious problems of overcrowding in the nation’s jails and perceived threats to public safety resulting from poor pretrial release practices overshadow questions about the quality of justice available to individual defendants and the popular, if not technical, meaning of “presumption of innocence.”