Bail

Harsh criticism of bail practices occurred during most of the twentieth century, dating at least from the 1920s when Roscoe Pound, Felix Frankfurter, and others studied criminal justice in Cleveland, and Arthur Beeley studied the jail in Chicago. Caleb Foote's classic study of the Philadelphia bail system and his sequel focusing on practices in the New York courts during the 1950s set the stage for the bail reform movement of the early 1960s. The body of criticism that grew over the last century excoriated the traditional cash bail system and the use of pretrial detention it fostered. The criticism questioned the legitimacy of the uses to which the bail decision was put, the existence of its highly discretionary exercise, the fairness of its application, and, even, its effectiveness.

Three purposes of the pretrial release decision are recognized in the United States at the beginning of the twenty-first century (American Bar Association). The two principal aims, to ensure a defendant's appearance in court and to protect the community from dangerous defendants, are related to a third, more general purpose, maintaining the integrity of the judicial process by preventing interference with victims or witnesses. The laws in many but not all American jurisdictions refer to both the appearance and community-protection aims of pretrial release decisions, if not necessarily the third purpose. However, explicit recognition of a community protection or "danger" agenda in law is a relatively recent development and has been the subject of debate discussed later in this entry.

Until the last decades of the twentieth century, judges or magistrates determined whether a defendant would be confined while awaiting trial with little statutory guidance. Moreover, this all-important liberty decision to release or confine the accused person through the device of cash bail was most often made by the lowest ranking local judicial official—sometimes a misdemeanor court judge, but often a quasi-judicial officer, magistrate, commissioner, or justice not trained in law. When guidance for that decision was provided, state and federal law concerned itself more with how (procedure) to decide bail than with why, and did not refer to a community protection goal. The language of the Eighth Amendment of the U.S. Constitution—"excessive bail shall not be required"—offered no guidance as to the purpose of bail.

In the 1960s, early proponents of bail reform argued that the only constitutionally acceptable purpose of bail was to ensure a defendant's appearance in court (Goldkamp, 1979). Reformers were critical of the then-existing bad system that they believed operated sub rosa to confine defendants perceived to be dangerous, an unconstitutional agenda in their view. The sub rosa detention system, framed in financial terms, resulted in the confinement of a great many poor defendants, based on anticipated future unlawful conduct, and on a subjective judicial prediction of dangerousness that broadly prejudged a defendant's guilt. At the same time, critics argued that when defendants were able to post the cash required, the cash-bail mechanism provided little incentive to defendants to return to court because their money was not refundable when paid to a bondman. To critics, cash bail and the bondsman's fee amounted to a way for defendants to purchase their release before trial, a sort of "ransom" for their freedom (Goldfarb), regardless of their intentions relating to court. The petty thief might not be able to raise a small amount of bail, while the drug dealer could produce large amounts of cash quite easily to gain release. Reform-minded critics advocated a system based less on financial considerations and more on nonfinancial methods for encouraging attendance, and rejected the argument that community safety was a legitimate concern for the release decision.

Opponents of the reform position agreed that an essential aim of pretrial release decisions was to ensure court attendance. However, they insisted that the bail decision had always also concerned itself legitimately with the public safety aim of protecting the community from dangerous defendants. Proponents of the public safety agenda asserted that too many "dangerous" defendants were being released to commit serious crimes in the community.

The preceding 1960s debate about the legitimate purpose(s) of bail was based on competing interpretations of the historical origins of bail in English common law. In looking for guidance from case law, both sides drew on Supreme Court decisions from the early 1950s: Stack v. Boyle (342 U.S. 1 (1951)) supported the reformers' appearance view and Carlson v. Landon (342 U.S. 524 (1952)) supported the danger-prevention function.

In Stack, the Supreme Court wrote that release before trial was "conditioned upon the accused's giving assurance that he will stand trial and submit to punishment if found guilty," and that bail "must be based on standards relevant to the purpose of assuring the presence of defendants." In Carlson, a (noncriminal) deportation proceeding involving the detention without bond of aliens, the Supreme Court appeared to condone a "danger" goal by approving the right of the state to designate classes of defendants for whom bail could be denied by statute; it found in the present case that there was a "reasonable apprehension of hurt from the aliens charged with a philosophy of violence against the government" (541, 542). Danger-prevention advocates interpreted the concept of "apprehension of hurt" as supporting their view that judges are justified in weighing estimates of harm or danger to the community in making release decisions before trial in criminal cases. The debate about the legitimacy (and constitutionality) of a danger-prevention purpose of the bail decision reached a crescendo during and after the passage by Congress of the Bail Reform Act of 1966. In that landmark legislation, the only stated purpose of the pretrial release decision for accused persons was to ensure appearance in court (18 U.S.C.A. 3146(a)). A community protection aim ("danger to the community or any other person") appeared for the first time in an American law, but it applied only to the special case of a defendant seeking release after conviction, while awaiting sentencing or appeals (18 U.S.C.A. 3146(b)).

The American Bar Association's Standards Relating to Pretrial Release, published in 1968, mirrored the bail reform tenets and spirit of the federal legislation, but they also signaled a shift in the debate about the purpose of the pretrial release decision. Although draft standards for preventive detention based on danger were not approved by the ABA, they were discussed and included in an appendix as a model for discussion. Then, in 1970, Congress took the historic step of enacting legislation for the District of Columbia that permitted outright pretrial detention in noncapital cases of defendants posing a danger to "any other person or the community" (D.C. Code: 23–1321, 1322(a)). The D.C. Code was a modified version of the model outlined in the ABA's draft preventive detention standards. The "Preventive Detention Code" of the District of Columbia constituted the first enactment of a law in the United States authorizing preventive detention of criminal defendants based on estimations of their possible dangerousness (Goldkamp, 1985). The D.C. preventive detention law could not have been enacted without support from both bail reform advocates as well as supporters of the public safety agenda.

The early reform advocates attacked the discretionary and discriminatory practice of detaining defendants sub rosa through manipulation of financial bail. They demanded more objective and explicit procedures. Public safety advocates demanded that danger be an acknowledged and explicit concern of the bail process. The compromise was to accept community safety as a legitimate concern but only to allow it pursuant to narrowly defined procedures and criteria. Moreover, the D.C. law was notable because it expressly prohibited detention of defendants through the use of financial bail conditions. Thus, early reformers lost the argument against the public safety agenda, but gained more explicit procedures and a detention-decision mechanism that responded more to due process concerns, and a system that did not authorize confinement on the basis of cash.

Between 1970 and 1984, a growing number of states revised their laws to permit the consideration of dangerousness at the bail stage. No court ruled authoritatively on the constitutionality of the danger agenda until the D.C. Circuit of Appeals in U.S. v. Edwards (430 A.2d. 1321 (1981)) approved the provisions of the D.C. law (Goldkamp, 1985). Shortly thereafter, Congress enacted the Federal Bail Reform Act of 1984 (18 U.S.C.A.: 3141–3156). Adapting provisions and concepts from the D.C. law, Congress revised federal law to permit detention of defendants who pose a danger "to the community or any other person." In 1987 in U.S. v. Salerno (481 U.S. 739), the U.S. Supreme Court upheld the constitutionality of pretrial detention under the "danger" provision of the Federal Bail Reform Act of 1984. It declared "preventing danger to the community" to be "a legitimate regulatory goal." Although laws in all states do not explicitly recognize a community safety agenda for pretrial release or have preventive detention statutes, the effect of this legal history—the second transformation of bail—has been to make danger concerns at the bail stage legally acceptable.