Models of Bail Reform

Abstract

Bail reform is an urgent topic in the United States and internationally, but what consists in reform, and how to accomplish reform goals remains contested. Jails are a modern epicenter of mass incarceration, with a stunning growth in American jail populations over the past four decades, despite declines in arrests and crime. Prior waves of bail reform gave us a system that still largely relied upon setting secured bonds, with up-front payments required, to determine who remains in jail while pending a criminal trial. Today, pre-trial policies and practices are contested and in flux. Recent bail reform legislation has inconsistently called for both local discretion and state-imposed rules, and restrictions on conditioning release on cash bail but also restrictions on release without cash bail. This Article seeks to shed light on key distinctions in bail reform approaches, by focusing on four models: (1) the procedural due process approach; (2) the risk assessment approach; (3) the categorical approach; (4) the community services approach; (5) an equal protection model; and (6) the use of alternatives to arrest. Each reflects a different normative agenda, targets different legal actors, and raises different constitutional and legal questions. Two of these models, the equal protection and arrest alternatives models have not been widely adopted and are not often included as part of bail reform conversations. This Article recommends a composite model that adopts elements of each model, using a separation-of-powers approach to target pretrial actors whose discretion can otherwise undermine each other’s compliance. This Article concludes by discussing a comprehensive vision for bail reform outside the criminal legal system.