December 11, 2020

Ending Overreliance on Pretrial Incarceration and Other Means-based Sanctions

Money bail is no more effective than other forms, yet our country’s reliance on money bail often places people behind bars who are presumed innocent and do not pose a risk of flight or to public safety. Such pretrial detention often leads to job loss, financial instability, family stress, and social stigma. Because the ability to make bail falls along socioeconomic lines, the system also disproportionately impacts Black, Indigenous, and People of Color. Accordingly, the ABA believes that money bail should only be used when it the only means that will secure a person’s appearance in court.

The ABA similarly opposes incarceration and other forms of nonmonetary punishment for inability to pay and fines. Jeopardizing an individual’s ability to maintain employment is an unnecessary and self-defeating extreme when seeking restitution. Furthermore, these are policies that create significant hardship along socioeconomic lines including People of Color.

People of limited means also face threats of incarceration when they are not represented by counsel. The ABA believes that indigent defense systems should be resourced on par with the prosecution, and that the right to counsel should begin with bail determinations.

Federal Legislation

H.R. 2233, the Bail Fairness Act of 2019, Rep. D. Davis (D-IL), which would allow Byrne JAG funds to be used by state and local jurisdictions that would release persons charged with misdemeanors or set non-monetary conditions for appearance prior to adjudication.

H.R. 4474, the No Money Bail Act of 2019, Rep. Lieu (D-CA), which would prohibit the use of money bail in federal criminal cases and prevent states from access to Byrne JAG funds so long as they require the payment of money as a condition of pretrial release. 

S.3375/H.R. 6061, the State Justice Improvement Act, Sen. Schatz (D HI)/Rep. Nadler (D NY), which would reauthorize and increase funding for the State Justice Institute by $20M, and require that $20M of its funding be used for grants for training and technical assistance to state and local to improve the constitutional and equitable enforcement of fines, fees, and monetary bail. 

H.R. 8249, the Removing Monetary Barriers to Voting Act, Rep. Velazquez (D NY), which would prevent the loss of the right to vote as a result of fees, fines, or restitution owed. 

ABA Advocacy:


ABA Support for H.R. 2868, the Ensuring Quality Access to Legal (EQUAL) Defense Act

On February 27, 2020 ABA President Judy Perry Martinez commended Senator Kamala Harris and Representative Ted Deutch for their introduction of the Ensuring Quality Access to Legal (EQUAL) Defense Act in each chamber of Congress (S.1377 and H.R. 2868, respectively). The EQUAL Defense Act would help protect the constitutional rights of defendants who are unable to afford a lawyer, increase indigent defense representation in local and tribal public defense systems, and provide needed relief to the men and women providing public defense services. Citing to the ABA Ten Principles of a Public Defense Delivery System, President Martinez emphasized that for the criminal justice system to be fair, public defense lawyers should be resourced on a par with prosecution counterparts. Read more...


ABA Letter in Support of Oregon HB 2614

On May 29, ABA President Robert M. Carlson sent a letter to Oregon's House Joint Ways and Means Committee expressing support for HB 2614, which would remove suspension of a driver's license or driving privileges as a consequence of nonpayment of fines and fees. Read more...

ABA Letter Regarding Illinois Bill on Fines and Fees

On May 7, ABA President Robert Carlson sent a letter to the Illinois House Transportation Committee in support of the proposed revisions in the License to Work Act (SB 1786) that would remove suspension of a driver’s license or privilege as a consequence of nonpayment of highway tolls and parking tickets. Read more...

ABA Letter to Montana Judiciary Committee on Fines and Fees

On February 6, ABA President Robert M. Carlson sent a letter to the Montana House Judiciary Committee in support of the provision in LC0606 (HB 217) that would remove suspension of a driver’s license or privilege as a sentencing option for nonpayment of fines, fees, or restitution. Read more...