The Purpose of Bail...
The purpose of bail, according to the American Bar Association (ABA), is to provide due process to the accused; ensure the defendant's appearance at all hearings before the court; and protect victims, witnesses and the community from threats, danger and interference.
Bail setting refers to the process overseen by the court by which a person who has been charged with a crime may be released pending trial. Judges have a set of bail conditions available to them, to include release on recognizance, release via financial conditions, release to community supervision, or detention without bail. "The law favors the release of defendants pending adjudication of charges. Deprivation of liberty pending trial is harsh and oppressive, subjects defendants to economic and psychological hardship, interferes with their ability to defend themselves, and, in many instances, deprives their families of support." (Standard 10-1.1, ABA Criminal Justice Standards on Pretrial Release, Third Edition, 2002)
Research Has Shown...
Studies have repeatedly shown that those detained pending trial are treated more harshly than similarly situated defendants who gain their pretrial release. Detained defendants receive more severe sentences, are offered less attractive plea bargains and are more likely to become "reentry" clients for no other reason than their pretrial detention. We know that there is no more powerful predictor of post-conviction incarceration than pretrial detention. [See John S. Goldkamp. Two Classes of the Accused: A Study of Bail and Detention in American Justice. Cambridge, Massachusetts, 1979. See also Malcom M. Feeley, The Process is the Punishment: Handling Cases In A Lower Criminal Court, 1992. For a comprehensive review of current research, see Jeffrey Manns. Liberty Takings: A Framework for Compensating Pretrial Detainees. Harvard Law School. Cambridge, MA, 2005.]
Make Bail Decision Based On Risk, Not Just Charge
Bail decisions are often made arbitrarily and on little information other than previous criminal history and current charges. Most jurisdictions are bound by a "bond schedule" which assigns a dollar amount to an offense type, irrespective of the risk presented by the individual charged with that offense. Objective research-based tools have been and continue to be developed that assess the defendant's flight risk, as well as their likelihood of danger to the community, in an effort to present impartial information to judges. With the availability of such tools, judges are better equipped to assign more rational conditions of release or detention.
This section highlights research and publications related to "setting bail" based on risk rather than top charge. For more documents, please use the Advanced Search function.
Setting Bail and Assessing Risk
The following publications highlight research done on best practices in setting bail, utilizing evidence-based pretrial risk assessment. For an additional assessment tool for defendants charged with domestic violence, visit The Mental Health Centre Penetanguishene and put ODARA in the search box. For an additional assessment tool for defendants charged with sex offenses, see The Static-99.
Research reports focusing on NYC defendants may be found at the NYC Criminal Justice website. More documents may be found in the PJI Library.