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The State of Bail

A Breakthrough Year for Bail Reform

For decades, money—and therefore wealth—has been at the crux of the American bail system.Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform (Washington, DC: U.S. Department of Justice, National Institute of Corrections, 2014). Money Bail serves to unjustly punish people who cannot afford to pay for their liberty and acts as leverage to exact pleas from people who face the empty choice of pleading guilty in order to go home or insisting on their innocence and staying in jail. In 2017, judges, defenders, advocates—and even prosecutors and law enforcement—took up bail and other pretrial reforms in an unprecedented way.One of the early catalysts of recent momentum was the National Symposium on Pretrial Reform, convened a half-decade earlier by the Department of Justice and the Pretrial Justice Institute, which featured prominent leaders including then Attorney General Eric Holder. Pretrial Justice Institute, “National Symposium on Pretrial Justice: Summary Report of Proceedings,” (New York: Pretrial Justice Institute, August 11, 2011). Reform came from external forces, such as litigation, grassroots organizing, and media attention; and from official system actors, including the judiciary, legislators, and policymakers.

Numerous lawsuits were filed challenging the money bail system, both in large cities that process tens of thousands of arrests each year, and small towns and municipalities that handle a fraction of that volume.

The highest courts in several states issued new rules requiring the bench to consider alternatives to bail designed to end detention based on a person’s finances. Grassroots organizations and advocates created charitable bail funds and used strategic “bail out” campaigns to shine a light on the harms of money bail, especially as it impacts poor communities and communities of color. Celebrities, including football players Malcolm Jenkins and Anquan Boldin, took up the cause of ending cash bail. And at the state and federal level, new legislation was introduced to reform bail practices and pretrial justice in local courts across the country.

Top Things to Know

  1. By choice and by force, courts are reckoning with their use of money bail
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  2. Charitable bail funds and “bail outs” are freeing people who cannot afford bail.
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  3. New Jersey enacts landmark bail reform; other states follow suit.
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  4. The for-profit bail bond industry—and the insurers who back it—are coming under scrutiny.
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  5. Sessions revokes Obama-era guidance on criminal justice fines and fees.
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Facts and Figures

On Our Radar

  • Debate continues over risk assessment tools.
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  • Pilot programs in New York explore strategies to limit the deprivations of cash bail.
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  • Bail bond companies and others push back on reform.
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  • Litigation seeks teeth in “ability to pay.”
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Discussion

Best of 2017

Contributors

Vera Staff

External Reviewers

  • Alec Karakatsanis
  • Pilar Weiss
  • Cherise Fanno Burdeen