Overview of Bail Reform

Until the early 1960s, two features characterized pretrial release decision making. First, rather than being an informed, individualized decision it was one in which the name of the charge, rather than all the facts about the defendant, dictated the amount of the bail. The second feature was an almost exclusive reliance by judges on financial bond. As a result, regardless of risk, defendants with the financial means to post bail secured pretrial release while indigent defendants remained in custody.

Efforts to change the way that pretrial release decisions were being made began in the early 1960s, in what came to be called the Bail Reform Movement. In 1961, the Manhattan Bail Project was established in New York City with the intention of making pretrial release decisions more consistent and outcomes less dependent on financial means. The project's underlying hypothesis was that persons with strong ties to the community — regardless of their economic status — were likely to return to court if released. The results of this project showed that many pretrial defendants with community ties could be safely released without financial bail.

At his first press conference as Attorney General, Robert Kennedy announced he was forming a committee to explore the treatment of the poor in federal courts. In early 1963, headed by Professor Francis Allen of the University of Chicago Law School, the committee issued a report highlighting that only those with sufficient financial means achieved justice at any stage of the system. In particular, the report focused on the problem of bail and the detainment of the potentially innocent prior to trial. In 1964, Attorney General Kennedy convened the first National Conference on Bail and Criminal Justice.

The movement was strengthened in 1966 by passage of the Federal Bail Reform Act. This law contained provisions that represented major departures from past pretrial release decision making practices. First, the new law laid out specific factors that a judicial officer was to take into account in making the decision. Second, the law established for the first time a prioritized list of options that a judicial officer must consider, beginning with release on recognizance — a simple promise to appear when required — followed by various forms of conditional release. The last option listed was obtaining a surety bail through a commercial bail bond.

In 1968, the American Bar Association published the first set of criminal justice standards that addressed the pretrial release decision. These standards and others that followed were virtually identical to the 1966 federal bail reform act with two important additions: first, the standards introduced the issue of potential danger to the community as a factor that should be considered by the judicial officer in making his decision; and second, the standards called for the abolition of surety bail for profit as an option, citing the long history of abuses associated with the practice.

In 1984, the Federal Bail Reform Act was amended to allow consideration of danger and preventive detention. Currently, at least 45 states and the District of Columbia specify a number of factors that must be considered in the release decision; at least 25 states and the District of Columbia, in addition to the Federal system, allow for pretrial detention in certain limited circumstances.

Notwithstanding the advances made in the pretrial release decision making process since the advent of the Bail Reform Movement, in many jurisdictions today pretrial release decisions are made – just as they were over 40 years ago – by the name of the charge instead of facts pertaining to each individual. Moreover, in many jurisdictions there remains an almost exclusive reliance on money bail. In short, the Bail Reform Movement has yet to reach critical mass in its effort to shift the paradigm of pretrial justice from money to individual risk.

Read the latest PJI article on Bail Reform: Solving the Riddle of the Indigent Defendant in the Bail System (pdf) Trial Briefs October 2007

Bail Bondsmen, Bounty Hunters and Private Prisons: Free Enterprise and the Criminal Justice System NPR 4-21-2008 Listen to Executive director Timothy Murray discuss why the bail bond system should be abolished. Download MP3 Version (Right-click and choose "Save As..." from the pop-up menu.)