In February 2020, Bethany Edmond, a 36-year-old, homeless woman, was arrested for three minor, misdemeanor violations and taken to jail. Memorandum in Support of Plaintiff’s Motions for Temporary Restraining Order and Class-Wide Preliminary Injunction at 2, Torres v. Collins, Case No. 2:20-cv-00026-DCLC-CRW 6 (E.D. Tenn. 2020). In her two-minute cursory hearing, the judge sets Edmond’s bond at $1,500, but no attorney is present to advocate on her behalf. Id. Because she only has 36 cents in her pocket and consequently is unable to afford her bond, she is denied release and is sent to jail for the next three weeks to await her next hearing. Id. As a result, Edmond sleeps on the floor in jail, loses access to vital medication, and is separated from her young children, whom she saw daily prior to incarceration. Id. at 6–7. The judge’s near-automatic detention not only ignores that she should be entitled to the presumption of release but also fails to consider her financial circumstances in violation of her equal protection rights. Without an attorney, she is also denied the ability to prepare a vigorous legal defense that could have brought these issues to light and potentially avoided her detention. This is just one illustration of the grim fate indigent defendants face daily in courts across the country when they lack their crucial right of pretrial liberty.
Scholars, legislatures, policy makers, and courts have long recognized that the use of monetary bail has grave consequences for individual defendants and greatly contributes to U.S. mass incarceration. See, e.g., Samuel R. Wiseman, Bail and Mass Incarceration, 53 Ga. L. Rev. 235 (2018). Bail reform has emerged in two waves—in the 1960s and 1980s—both focused on efforts to reduce pretrial incarceration and reduce reliance on money bail. See Shima Baradaran Baughman, The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System 170 (2018) [hereinafter The Bail Book]. However, these efforts have fallen far short of accomplishing this goal. Legislatures ignored defendants’ core right to pretrial liberty and allowed judges more discretion to preventatively detain pretrial defendants, leading to a drastic increase in pretrial detention that has caused great harm to many defendants. See e.g., Bail Reform Act of 1984, 18 U.S.C. § 3142. Incarceration rates have not decreased due to bail reform efforts but have skyrocketed. Indeed, from 1970 to 2015, the number of people detained prior to trial increased by 433 percent. Léon Digard & Elizabeth Swavola, Vera Inst. of Just., Justice Denied: The Harmful and Lasting Effects of Pretrial Detention 1–2 (2019). And as demonstrated in Bethany Edmond’s case, even a short period of pretrial detention can create dire impacts for defendants, including increased recidivism and rearrest simply based on a few days of pretrial detention, longer terms of incarceration, reduced employment opportunities, fewer housing options, and a diminished ability to defend their case and meet with counsel. The Bail Book, supra, at 82–88.
Recognizing that its two prior waves were unsuccessful, players in criminal justice are now attempting a third wave of bail reform with over 200 pending bills across the United States and several pieces of federal bail legislation working their way through Congress. Shima Baradaran Baughman, Reforming State Bail Reform, 74 SMU L. Rev. 447 (2021). In these recent bail reform efforts, some cities have eliminated money bail measures, some have created risk assessments to increase data-driven release decisions by judges, and others have increased the use of pretrial release supervision. See Shima Baradaran Baughman, Dividing Bail Reform, 105 Iowa L. Rev. 947 (2020). Nonetheless, detention rates—both state and federal—are still increasing, even though—or arguably—especially because states are waist deep in bail reform efforts that fail to protect defendants’ pretrial liberty interests. State detention rates have increased 77 percent, and federal detention rates have increased from 24 percent of defendants in 1984 to 72 percent of defendants in recent years. Zhen Zeng, U.S. Dep’t of Just., Jail Inmates in 2016, at 3, 5 (2018); Matthew G. Rowland, The Rising Federal Detention Rate, in Context, 82 Fed. Prob. J., no. 2, Sept. 2018, at 13. These increased detention rates not only harm the accused but harm the public who is subject to increased public safety harms due to pretrial detention.
Part of this increasing detention is a lack of proper recognition of the rights at play in the detention decision. The Supreme Court and many state constitutions recognize a right to presumptive release before trial, or a determination of guilt. Underlying this right are vague references to the Excessive Bail Clause, the Eighth Amendment, and the Due Process and Equal Protection Clauses. However, a proper articulation of the rights that underly the right to liberty pretrial are important to achieving this fundamental protection. Recent research details four critical pretrial liberty interests that are at the core of ensuring the third wave of bail reform is successful. Shima Baughman, Taming Dangerousness (2022) (unpublished manuscript; on file with author). These rights protect, respectively, defendants’ right to a legal defense before trial, the presumptive right to release pretrial, the right to a jury determination of facts, and the right to avoid discrimination based on financial means in obtaining release before trial. By focusing on these rights, this framework supports the solutions necessary to protect the right to pretrial liberty, including creating a narrow detention net and specifying release targets. If state legislatures direct their focus to these issues in implementing new bail reform measures, the third wave of bail reform stands a chance at success in reducing pretrial detention and protecting pretrial liberty and safety.
A malignant impediment to pretrial justice is defendants’ lack of representation during bail hearings. The Supreme Court has held that defendants have the right to the presence of counsel at every “critical stage” of the proceedings. See Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191 (2008). But the Court has failed to provide a clear holding on whether a pretrial release hearing is considered a critical stage, leaving some legal uncertainty as to whether defendants are entitled to the presence of counsel. Id. While the federal system requires representation at bail hearings, states differ in their response to this issue. Some state courts have deemed a bail hearing a critical stage that requires presence of counsel, but as of the last national assessment, the majority of states, cities, and counties do not provide defendants’ representation at their bail hearings. See Douglas L. Colbert, “With a Little Help from my Friends”: Counsel at Bail and Enhanced Pretrial Justice Becomes the New Reality, 55 Wake Forest L. Rev. 795, 803 (2020).
As a result, attorneys have largely been absent at bail hearings in most criminal courtrooms, even though an attorney’s presence can determine the fate of an accused person. An example from a case in Maryland puts the gravity of the situation in perspective. In Fenner v. State, Fenner made a lengthy, inculpatory monologue at his bail hearing, in response to the judge’s inquiry: “Your Honor, this is just for me to make ends meet, to make money for me to be able to get by. They never caught me that (indiscernible) amount of drugs on me. You know what I’m sayin’” 846 A.2d 1020, 1024 (Md. Ct. App. 2004). Self-incriminating statements like these, although made with the intent of securing release, would likely not have occurred had Fenner been appointed an attorney. Subsequently, Fenner’s self-incriminating statement at his bail hearing ended up condemning him to a 20-year prison sentence. Beyond the prevention of self-incrimination that could have been avoided in Fenner’s case, defendants with an attorney are also more likely to be released on bail and are more likely to have a lower bail amount set. See Colbert, supra, at 803. Despite these widely known benefits to defendants, states nonetheless continue to deprive defendants of representation at bail hearings.
Second, the presumptive right of release before trial is another critical right often neglected in bail reform measures. Dating back to the Magna Carta and the English Bill of Rights, the right to pretrial liberty has a longstanding foundation in procedural due process rights. See U.S. Const. amend. V; id. amend. XIV, § 1. Procedural due process requires that the government provide the necessary procedural safeguards to confirm accuracy of detention, and the freedom from bodily restraint is at the “core of the liberty” protected by the Due Process Clause. See United States v. Salerno, 481 U.S. 739, 755 (1987); Foucha v. Louisiana, 504 U.S. 71, 80 (1992). The early, standard practice in America focused primarily on releasing the majority of defendants and utilizing detention only in narrow circumstances, such as when detention is necessary to ensure the defendant’s future appearance in court or to protect the community’s safety. Despite the argued diminishment of pretrial liberty rights by the Supreme Court’s decision to permit preventative detention when the defendant poses a community safety risk, the right to pretrial liberty should still be viewed as an essential constitutional right. See Salerno, 481 U.S. 739.
While there are no constitutional barriers to protecting pretrial detention, statutory barriers remain prevalent. Safeguarding the right to pretrial liberty requires a rebuttable presumption of release, with a clear and convincing standard required with evidence provided by the government to allow detention. Currently, pretrial state and federal legislation deprives defendants of the right to the presumption of release and results in detention because it does not presume release as a statutory default. See, e.g., United States v. Gilliard, 722 F. App’x 818, 820–21 (10th Cir. 2018). In a recent study, researchers found that the federal bail scheme has led to a dramatic increase in pretrial detention and has become a standard detention order for judges in almost half of all federal cases. See Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 Fed. Prob. J., no. 2, Sept. 2017, at 52, 61. Research also has confirmed that pretrial detention increases the likelihood of conviction and future crime, has an adverse effect on future employment prospects, and can cause worse plea outcomes and longer sentences. See Jung K. Kim & Yumi Koh, Pretrial Justice Reform and Black–White Difference in Employment, Applied Econ. 1, 15 (2021); Carissa Byrne Hessick, Punishment Without Trial: Why Plea Bargaining Is a Bad Deal (2021). To the extent that future bail reform follows this trend, pretrial release rates will not improve. For pretrial release to be the norm, states and the federal government must reverse the presumptions in legislation. In other words, bail legislation should dictate release without a hearing before trial for the majority of defendants unless they are charged with a violent forcible felony, for instance, and in those cases a hearing would be required.
Third, bail reform is overlooking an additional important historical right and constitutional violation lying in the current bail system. The role of the jury has long held fundamental importance in our judicial system. Both the Sixth Amendment right to a jury trial and the Due Process Clause right of a jury to determine facts maintain guarded constitutional status. Relying on these long-venerated constitutional rights, the Supreme Court has made clear that judges and juries have two distinct roles in criminal proceedings: Juries are given the sole duty to decide facts, whereas judges are tasked with deciding questions of law. See, e.g., Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Booker, 543 U.S. 220 (2005). While litigation in this area has centered primarily on trials and sentencing, preserving distinct roles between the judge and jury serves an important purpose in protecting core constitutional principles, and this reasoning could extend to various other stages of criminal proceedings, including pretrial detention decisions.
Despite these fundamental principles, judges in pretrial hearings are nonetheless able to weigh evidence against a defendant to predict their guilt before trial. For example, the Bail Reform Act of 1984 and many state laws give judges the ability to “weigh the evidence” to decide whether to release a defendant pretrial. 18 U.S.C. § 3142(g) (2008). Illinois’s recent bail reform act, while implementing many positive bail reform measures, gives judges the discretion to weigh evidence when deciding whether to release defendants pretrial, missing the core issue of the diminishment of constitutional principles through judicial pretrial fact-finding. See Public Act 101-0652, H.B. 3653, 101st Gen. Assemb., Reg. Sess. § 110-5(a)(2) (Ill. 2021). It is difficult for judges to respect the default of release pretrial when they are mired in measuring factual allegations against a particular defendant. As such, historically judges were shielded from any details of a defendant’s crime and were simply to decide pretrial release based on flight risk. In the reality of our current preventative detention system of bail, there is still a way to create a constitutionally sound bail reform legislation. To do so, future legislation should restrict prosecutors’ ability to present evidence of defendants’ guilt at bail hearings. Additionally, the facts to prove a defendant’s “danger to the community” should be presented only in cases of forcible felonies, when there is evidence of prior violent crimes, or if there are threats to a specific individual. These policies would help preserve the presumption of innocence and default of release, and limit judges to their appropriate role to decide the law rather than facts.
Fourth, the right to financial parity is the final interest in protecting pretrial liberty that is neglected in current bail reform schemes. Financial parity requires that each defendant charged with a crime has the ability to obtain release without regard to their financial status. United States v. Salerno, 481 U.S. 739, 750–51 (1987). Additionally, financial parity requires that the defendant have the freedom against excessive fines that are equivalent to punishment. See Insha Rahman, Undoing the Bail Myth: Pretrial Reforms to End Mass Incarceration, 46 Fordham Urb. L.J. 845, 866 (2019). The right to financial parity, based in Equal Protection and Due Process protections, also holds a strong historical foundation in American law, dating back to the protections derived from the Magna Carta. Magna Carta § 20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225); Timbs v. Indiana, 139 S. Ct. 682, 687 (2019). In U.S. history, the founders were sensitive to discrimination based on a defendants’ ability to pay, and the U.S. Supreme Court has since noted that indigent defendants hold protections in the Due Process and Equal Protection Clauses against invidious discrimination. See Stack v. Boyle, 342 U.S. 1, 4 (1951). The right to financial parity also derives in part from the Excessive Fines Clause, which applies to both the states and the federal government. See Bearden v. Georgia, 461 U.S. 660, 662 (1983).
Financial parity also requires that a person not be harmed legally or have liberty deprived as a result of their inability to pay a fee, fine, or bail amount. On this point, the Supreme Court has held that a person should not be “subjected to imprisonment solely because of his indigency.” Tate v. Short, 401 U.S. 395, 397–98 (1971). Additionally, the Supreme Court has clarified that an unattainable bail amount constitutes impermissible punishment prior to conviction. Stack v. Boyle, 342 U.S. 1, 4 (1951). Lower courts have built on this rule mandating, on the basis of the Fourteenth Amendment, that judges must take meaningful consideration of alternatives to incarceration for those who cannot afford to pay bail to secure freedom. See e.g., Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978).
The default for states is requiring money bail for release, but unaffordable bail constitutes unconstitutional pretrial detention. Although financial parity should not be confused with financial equality, no defendant should be imprisoned simply due to an inability to pay; this disparity in the criminal justice process should be the most concerning to criminal justice reformers. Wayne H. Thomas Jr., Bail Reform in America 11, 19 (1976). Legislatures are recognizing this issue of wealth-based discrimination in bail hearings, but still not all efforts have been successful in addressing the right to financial parity. For example, while the Uniform Law Commission Pretrial Release & Detention Act notes that defendants should not be detained solely for an inability to pay, many factors allow detention of defendants without real evidence, negating the ability to avoid detention for lack of ability to pay bail. Unif. Pretrial Release & Det. Act § 307(A) (Unif. L. Comm’n 2021). Illinois, however, was the first state to eliminate cash bail and monetary fines in many circumstances, demonstrating a shift toward ensuring defendants not being detained due to their financial status. See Safia Samee Ali, Illinois Becomes First State to End Cash Bail as Part of Criminal Justice Reform Law, NBC News (Feb. 24, 2021, 12:50 PM). New Jersey has also dramatically reduced its reliance on money bail so that only 191 defendants of 129,387 total eligible defendants were ordered to pay cash bail to be released in over two years. New Jersey Judiciary, 2020 Report to the Governor and the Legislature 29. Bail reform efforts should seriously avoid allowing defendants to be detained solely based on indigent status where wealthy counterparts are able to avoid detention.
In order to respect the right of pretrial liberty and decrease pretrial detention, states must cast narrow detention nets. Creating a narrow detention net requires that a presumption in favor of release be the norm, and a narrow “net” needs to be set to capture the few who are unable to be released before trial with any available conditions or supervision. To accomplish this goal, appropriate release goals would need to be set—such as 90 percent release of all defendants—to give judges clear benchmarks for release. Additionally, legislation must only require detention for individuals who are statistically considered at high risk of violent crime or pose an immediate physical threat to specific persons and keep the presumption of release for all other crimes. To this point, the overwhelming majority of pretrial defendants are safe to release before trial, suggesting that those unable to be released should be very limited. Shima Baradaran Baughman & Frank McIntyre, Predicting Violence, 90 Tex. L. Rev. 497 (2012). In an earlier study, the author and Frank McIntyre found that a little over one-third of released, pretrial felony defendants have less than a one percent chance of being rearrested, and another third have a one to two percent chance of being rearrested. Id. at 528. In the limited circumstances when release is not deemed appropriate, prosecutors should provide alternatives to detention where possible, such as unsecured bond, deposit bail, conditional release, electronic monitoring, or diversion programs. The Bail Book, supra, at 43, 52, 53.
This model takes into consideration each of the fundamental pretrial interests discussed above. First, the individuals detained in the “net” are only detained after a hearing is requested by counsel, protecting defendants’ core right to prepare a vigorous legal defense. Second, hearings should typically be reserved for accused individuals with a history of convictions for violent crime with violent felony pending charges, which also ensures judicial discretion is limited and juries remain the sole factfinder in criminal proceedings. Risk assessments, release targets, and presumptive release for misdemeanor and nonviolent felony offenses can also ensure that judges are not given unfettered discretion, which has the potential to hinder bail reform efforts. See Shima Baradaran Baughman, The History of Misdemeanor Bail, 98 B.U. L. Rev. 837, 872 (2018). Third, most defendants must be afforded a presumption of release pretrial, and ensuring high release rates requires setting high release rate targets. This method provides a simple but effective tool to ensure presumptive release remains the “norm.” Fourth, financial parity is honored when the use of money bail, both by statute and in practice, is extremely limited and disfavored. See D.C. Code § 23-1321(c)(3).
While the goals of majority release might seem lofty under our current detention practices, one jurisdiction has consistently achieved 90 percent release rates. Washington, DC, has maintained a particularly strong detention net for the last 50 years. DC presumes release of defendants before trial, detains—in practice—only for murder and serious assault charges, and requires a hearing in order to detain defendants. See D.C. Code Ann. § 23-1322(e)(2) (West 2017). As a result, more than 90 percent of all defendants are released pretrial, and very few defendants are rearrested upon release. Pretrial Just. Inst., The State of Pretrial Justice in America (2017). Currently, only 14 states meet the 90 percent release rate for misdemeanors, and likely even fewer for felony offenses. See Pretrial Just. Inst., What’s Happening in Pretrial Justice 11–14 (2021). Focusing on the bottom line—setting a target for release rates—is the only reliable way to decrease pretrial detention rates and improve bail reform. Indeed, these straightforward benchmarks will help hold the players in the criminal justice system accountable for increasing rates of pretrial detention despite pretrial reform proliferation throughout the country.
Bail reform has strong momentum throughout the states and federal government with many proposed and some recently enacted reforms throughout the country. See State Pretrial Policy: Bill Tracking Database, Nat’l Conf. St. Legislatures (Oct. 18, 2018); Federal Bail Reform Act of 2020, H.R. 9065, 116th Cong. § 3142(e) (2020). Prior reforms in the 1960s and 1980s had similar methodology promising improvement in pretrial detention practices. Yet, both efforts have led to increased detention and increased public safety risks, as detaining individuals even for a few days makes them substantially more likely to recidivate. Christopher T. Lowenkamp, Marie VanNostrand & Alexander Holsinger, Arnold Found., The Hidden Costs of Pretrial Detention 11 (Nov. 2013). So increasing release rates actually makes us safer.
The latest round of bail reform, starting around 2010, also has led to increased pretrial detention. Without implementing new ideas that are laser-focused on decreasing pretrial detention as a bottom line, these efforts will remain largely unsuccessful, like the prior waves of bail reform. Without a reinvigoration of the four underlying constitutional rights supporting pretrial liberty, detention rates will not improve, and we create a risk to public safety. If pretrial liberty—and avoiding dangerousness—are the focus, then the default pretrial must be release, which can be accomplished through focusing efforts on creating a narrow detention net and specifying release targets. Without enhancing pretrial liberty, the third wave of bail reform will also fail.
