August 01, 2018 INTRODUCTION

The End of Money Bail?

By Judge Nannette A. Baker

In many state and local courts, money bonds are routinely set for anyone who is arrested, including those arrested for low-level offenses. Because many people cannot afford to pay the bond, they remain behind bars. Estimates are that some 500,000 people are in jail in this country because they cannot afford to pay the bond set for their release.

The work of criminal justice activists, legal challenges to money bail, and media attention have led jurisdictions throughout the United States to reexamine whether the use of money bail is just. Many of those jurisdictions are answering the question with a resounding no. In this issue, we provide an overview of bail reform efforts throughout the country and the challenges going forward.

It is important to understand why we are where we are with regard to bail reform. In his article, “A Brief History of Bail,” Timothy R. Schnacke examines current bail reform efforts through the lens of history.

Brook Hopkins and Colin Doyle of the Criminal Justice Policy Program at Harvard Law School provide an overview of bail reform efforts throughout the United States in their article “The Pathways of Pretrial Reform.” They offer best practices for jurisdictions that are considering bail reform.

We also have articles from three judges describing how their jurisdictions took on the system of money bail, made changes, and found success. Judge Truman A. Morrison III describes how the District of Columbia Court system changed its culture so that now more than 90 percent of defendants are released without posting money bail. Chief Justice Stuart Rabner of the New Jersey Supreme Court reflects on the first year of bail reform in that state. New Mexico Supreme Court Justice Charles W. Daniels explains how important judicial leadership was to his state’s adopting new bail policies, which have resulted in fewer people being detained while awaiting trial.

We also focus on the human cost of pretrial detention. John Raphling of Human Rights Watch describes the toll that pretrial detention has on individuals and our criminal justice system. He also examines the racial and economic disparities of the criminal justice system in light of bail decisions.

Thea L. Sebastian and Alec Karakatsanis of Civil Rights Corps have successfully challenged the constitutionality of pretrial detention based on access to money. Their article describes the legal challenges to money bail and offers suggestions for an alternative system.

Any bail reform effort will likely rely on pretrial risk assessment tools to aid judges in deciding whether someone should be released. David G. Robinson, Hannah Jane Sassaman, and Megan Stevenson examine risk assessment algorithms and offer advice on how to understand the limitations of the tools and how to use them wisely.

The issues of pretrial detention and bail reform will likely dominate criminal justice discourse for the foreseeable future. It is our hope that this issue provides comprehensive information about this important topic and practical advice for any judicial officer interested in pursuing reform. n

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Judge Nannette A. Baker

Judge Nannette A. Baker is the Chief United States Magistrate Judge in the Eastern District of Missouri. She also serves as co-chair of The Judges’ Journal Editorial Board and she is a former chair of the National Conference of Federal Trial Judges.