Pretrial Bonds Article

Money as a Criminal Justice Stakeholder:
The Judge’s Decision to Release or Detain a
Defendant Pretrial
Timothy R. Schnacke
September 2014
NIC Accession Number: 029517
This document was prepared under technical assistance event number 13CS02GK04 from the
National Institute of Corrections, U.S. Department of Justice. Points of view or opinions stated
in this guide are those of the author and do not necessarily represent the official position or
policies of the U.S. Department of Justice.
Table of Contents
Executive Summary…………………………………………………………………………………………………………………..3
Introduction ………………………………………………………………………………………………………………………………5
Chapter 1. The History and the Law to the Twentieth Century ……………………………………………….11
The First Historical Thread: The Move from Unsecured Bonds Administered by Personal
Sureties to Secured Bonds Administered by Commercial Sureties……………………………………….12
The Second Historical Thread: The “Bail/No Bail” Dichotomy Leading to an In-or-Out
Decision……………………………………………………………………………………………………………………………….13
“Bail” and “No Bail” in England in the Seventeenth Century………………………………………………16
“Bail” and “No Bail” in America………………………………………………………………………………………….18
Chapter 2. How American Pretrial Decision Making Got Off Track in the Twentieth Century ..24
The Collision of Historical Threads ……………………………………………………………………………………..24
The Unfortunate Line of Cases …………………………………………………………………………………………….27
Chapter 3. “Bail” (Release) and “No Bail” (Detention) …………………………………………………………….31
Under the Federal Statute ………………………………………………………………………………………………………..31
Chapter 4. The National Standards on Pretrial Release ……………………………………………………………34
Chapter 5. Effective Pretrial Decision Making………………………………………………………………………….39
The Negative Effects of Not Making an Immediately Effectuated In-or-Out Decision………….40
Research Helping Judges to Avoid the Negative Effects………………………………………………………41
Part One – Risk Assessment Instruments …………………………………………………………………………42
Part Two – Assessing Which Conditions are Effective for Their Lawful Purposes……………43
Chapter 6. The Practical Aspects of Making an Effective………………………………………………………….49
“Release/Detain” or In-or-Out Decision …………………………………………………………………………………..49
Bail or No Bail?…………………………………………………………………………………………………………………….51
Conditions……………………………………………………………………………………………………………………………55
Balance…………………………………………………………………………………………………………………………………57
Step One – Proper Purpose ………………………………………………………………………………………………57
Step Two – Legal Assessment…………………………………………………………………………………………..58
Step Three – The Release and Detention Result………………………………………………………………..62
Conclusion ………………………………………………………………………………………………………………………………62
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Preface
The future of pretrial justice in America will come partly from our deliberative focus on our
judges’ decisions to release or detain a criminal defendant pretrial and from our questioning of
whether our current constitutional and statutory bail schemes are either helping or hindering
those decisions. When I started researching bail, I wrote reams of paper on this particular
decision point, only to be told by an extremely bright judge that the current Colorado statute
seemed to guide him toward a primarily charge and money-based decision-making process. He
was right, and even though people said we could never do it, we changed the entire statute to
create a legal scheme designed to help judges realize the actual release of bailable defendants
by reducing the use of money and bail schedules.
Now, however, we recognize that we also need a fair and transparent scheme allowing the
preventive detention of higher risk defendants without “bail,” or judges will continue to be
forced to use money to accomplish the same thing, albeit unfairly, non-transparently, and,
some would say, unlawfully. A new group of people are now telling us that we can never
change our constitution to allow the creation of this scheme, but the fact is that change is
inevitable. Indeed, moving from a mostly charge and money-based bail system to one based
primarily on empirically-derived risk necessarily means that virtually all American bail laws are
antiquated and must be changed.
This paper is designed to show a somewhat ideal process for making a release or detain
decision, but with the realization that a particular state’s bail laws may hinder that ideal process
to a point where best practices are difficult or even impossible to implement. Nevertheless,
until we know how the pretrial decision-making process should work (i.e., an in-or-out decision,
immediately effectuated), we will never know exactly which changes we must make to further
the goals underlying the “bail/no bail” process.
Timothy R. Schnacke
Executive Director
Center for Legal and Evidence-Based Practices
Golden, Colorado
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Acknowledgements
Many different people contributed to this paper in different ways, and it is not possible to list
and thank them all by name. Nevertheless, a few entities and people warrant special mention.
The first is the National Institute of Corrections, and especially Lori Eville and Katie Green, for
conceiving the idea for the paper, helping to mold it through many enlightening discussions
with me, and allowing me the time to flesh it out. The NIC has been in the forefront of pretrial
justice for many years, and I am honored to be able to add to their long list of helpful pretrial
literature.
I am thankful to Cherise Fanno Burdeen and the National Association of Pretrial Services
Agencies, and especially to Judges Gregg Donat (Tippecanoe County, Indiana) and Matt Osman
(Mecklenburg County, North Carolina), who provided me with invaluable input on the draft. I
am also extremely grateful to Spurgeon Kennedy, who has both inspired me and helped me
down the stretch, and to Dan Cordova and the staff of the Colorado Supreme Court Law Library,
who can seemingly answer any question, no matter how challenging.
In writing about judicial decision making, I am also indebted to the many judges with whom I
have worked over the years. They include Judge Truman Morrison of the Superior Court of the
District of Columbia, Judge Deanell Tacha and the other judges on the Tenth Circuit Court of
Appeals during my employment as both law clerk and staff counsel, the judges of the Colorado
Court of Appeals during my employment with that court, and the inspired and enlightened
judges on the bench in Jefferson County, Colorado. I am especially thankful to Judges Margie
Enquist, Thomas Vance, and Brooke Jackson, who understood the need for pretrial
improvement before most, who worked to implement improvements against great opposition,
and who continue to strive toward an ideal pretrial justice system where I live.
As with everything I have written in bail, I give my deepest thanks and appreciation to Claire
Brooker (Jefferson County, Colorado) and Mike Jones (Pretrial Justice Institute), who helped
with every aspect of this paper. Their contribution to the administration of bail transcends any
particular paper, though, and continues to inspire me daily to think and write about important
issues of pretrial justice.
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Executive Summary
Our best understanding of how to make meaningful improvements to criminal justice systems
points to justice stakeholders cultivating a shared vision, using a collaborative policy process,
and enhancing individual decision making with evidence-based practices. Unfortunately,
however, using secured money to determine release at bail threatens to erode each of these
ingredients. Money cares not for systemwide improvement, and those who buy their
stakeholder status from money have little interest in coming together to work on evidencebased solutions to systemwide issues.
Like virtually no other area of the law, when judges set secured financial conditions at bail, they
are essentially abdicating their decision-making authority to the money itself, which in many
ways then becomes a criminal justice stakeholder, with influence and control over such
pressing issues as jail populations, court dockets, county budgets, and community safety.
Money takes this decision-making authority and sells it to whoever will pay for the transfer,
ultimately resulting in “decisions” that run counter to justice system goals as well as the
intentions of bail-setting judges. The solution to this dilemma – a dilemma created and
blossoming in only the last century in America – is for judges to fully understand the essence of
their decision-making duty at bail, and in their adhering to a process in which they reclaim their
roles as decision makers fully responsible for the pretrial release or detention of any particular
defendant.
Judges can achieve this understanding through a thorough knowledge of history, which
illustrates that bail has always been a process in which bail-setting officials were expected to
make “bail/no bail,” or in-or-out decisions, immediately effectuated so that bailable defendants
were released and unbailable defendants were detained. The history of bail shows that when
bailable defendants (or those whom we feel should be bailable defendants) are detained or
unbailable defendants (or those whom we feel should be unbailable defendants) are released,
some correction is necessary to right the balance. Moreover, the history shows that America’s
switch from a personal surety system using primarily unsecured bonds to a commercial surety
system using primarily secured bonds (along with other factors) has led to abuses to both the
“bail” and “no bail” sides of our current dichotomies, thus leading to three generations of bail
reform in America in the last 100 years.
Judges can also achieve this understanding through a thorough knowledge of the pretrial legal
foundations. These foundations follow the history in equating “bail” with release, and “no bail”
with detention, suggesting, if not demanding an in-or-out decision by judicial officials who are
tasked with embracing the risk associated with release and then mitigating that risk only to
reasonable levels. Indeed, the history of bail, the legal foundations underlying bail, the pretrial
research, the national standards on pretrial release, and the model federal and District of
Columbia statutes are all premised on a “release/detain” decision-making process that is
unobstructed by secured money at bail. Understanding the nuances of each of these bail
fundamentals can help judges also to avoid that obstruction.
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Nevertheless, it is knowledge of the current pretrial research that perhaps provides judges with
the necessary tools to avoid the obstruction of money and to make effective pretrial decisions.
First, current pretrial research illustrates that not making an immediately effectuated release
decision for low and moderate risk defendants can have both short- and long-term harmful
effects for both defendants and society. It is important for judges to make effective bail
decisions, but it is especially important that those decisions not frustrate the very purposes
underlying the bail process, such as to avoid threats to public safety. Therefore, judges should
be guided by recent research demonstrating that a decision to release that is immediately
effectuated (and not delayed through the use of secured financial conditions) can increase
release rates while not increasing the risk of failure to appear or the danger to the community
to intolerable levels. Second, the use of pretrial risk assessment instruments can help judges
determine which defendants should be kept in or let out of jail. Those instruments, coupled
with research illustrating that using unsecured rather than secured bonds can facilitate the
release of bailable defendants without increasing either the risk of failure to appear or the
danger to the public, can be crucial in giving judges who still insist on using money at bail the
comfort of knowing that their in-or-out decisions will cause the least possible harm.
These in-or-out decisions can be hindered by inadequate state bail laws, most of which are
outdated due to their charge-based structure. In particular, states that do not allow detention
based on risk are putting judges at a disadvantage because the existing laws will often force
judges to choose between releasing a high risk yet bailable defendant (thus endangering the
public) or detaining that otherwise bailable defendant to protect the public by using money.
Judges are thus encouraged to follow the recommendation of the Conference of Chief Justices
that they work within the criminal justice system to analyze state laws and to propose revisions
supporting risk-based or risk-informed decisions.
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Introduction
In nearly 50 years, we have greatly strengthened our ability to make meaningful improvements
to the criminal justice system. In 1967, the President’s Commission on Law Enforcement and
Administration of Justice issued its report titled, “The Challenge of Crime in a Free Society.” In
that report, the Commission introduced America to a criminal justice “systems” perspective,
emphasized the role of data-guided or research-based decision making, and stressed the need
for the various criminal justice stakeholders to come together in “planning and advisory
boards” to manage and improve justice systems – all novel concepts to a country accustomed
to the fragmented and decentralized justice system of the first half of the twentieth century.1
Since then, we have re-defined our notions of criminal justice systems, coming to a better
understanding of various discretionary justice system decision points and their relationship to
one another. Moreover, we have begun keeping data and evaluating programs and processes,
activities slowly leading to a base of criminal justice literature and research designed to
illuminate “what works” to achieve our justice system goals. And finally, we have experimented
with, and refined our ideas about, systemwide collaboration by watching both the successes
and failures of various policy planning teams created to put that research to use.
This evolutionary understanding of the principles articulated in 1967 culminated in 2008, when
the National Institute of Corrections (NIC) partnered with the Center for Effective Public Policy,
the Pretrial Justice Institute, the Justice Management Institute, and the Carey Group to create a
criminal justice systemwide “framework.” This framework is designed to maximize
collaboration and research by allowing policy teams made up of criminal justice stakeholders to
apply evidence-based practices to system issues found at the various decision points.2
The framework rests on several premises. One premise is that all criminal justice stakeholders
share a similar vision that focuses on harm reduction and community wellness while embracing
certain core values of the justice system, such as public safety, fairness, individual liberty, and
respect for people’s rights and the rule of law. A second premise is that these stakeholders
work best when they work together, agreeing to apply the research shown best to accomplish
the overall vision at each decision point. A third premise is the need for collaborative policies to
filter down to each person making each decision, creating a “value chain” comprised of multiple
individual decision makers who follow, and ultimately benefit from, professional judgment
enhanced with evidence-based knowledge.3 When these premises are followed, 50 years of
experience shows that criminal justice decision makers can not only manage the overall
operations of a complicated justice system, they can also identify and agree to implement
evidence-based solutions to seemingly insoluble problems such as jail crowding, inefficient
1 See The Challenge of Crime in a Free Society: A Report by the President’s Commission on Law Enforcement and
Administration of Justice (Washington, D.C. 1967). 2 See A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems (NIC 3rd ed. 2010)
[hereinafter NIC Framework]. 3 See id. at 17-29.
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resource allocation, and recidivism. When the premises are not followed, however, justice
system effectiveness and the shared vision itself can suffer. In the field of bail and pretrial
justice, the latter happens most frequently when judges use their professional judgment during
the pretrial release or detention decision point to set secured financial conditions of bail
without fully contemplating their usefulness or effects.
Financial conditions of bail (i.e., money or its equivalent in property) have been a part of the
release process for 1,500 years, but for virtually all of that time whatever financial condition
that existed on any particular bond was typically unsecured, or, like a debenture, secured only
by the general credit of the personal sureties. It was a debt that would be owed only if the
accused did not appear for court; accordingly, no amount of money stood in the way of the
defendant being released immediately from jail. On the other hand, secured financial
conditions – which effectively require money to be paid up-front by a defendant (or his or her
family) or specific collateral to be pledged or obligated in the form of what we now call “cash
bonds,” “surety bonds,” “deposit bonds,” and “property bonds” before that defendant can be
released from jail – have only been used extensively in America since about 1900. Since then,
our emphasis on secured bonds at bail has led to issues that are conceivable only when wealth
and profit become foundational to a process of release. For the most part, these issues all stem
from the puzzling custom of judges routinely abdicating their roles as decision makers by
setting monetary conditions that are largely dependent upon others to effectuate.
Recognition of this abdication of decision-making authority is not new. Indeed, in the 1960s
numerous critiques of the commercial surety industry included the notion that those sureties
were improperly usurping a role best left to judges. For example, in 1963 author Ronald
Goldfarb wrote the following:
A cardinal flaw even with the legitimate aspects of the bondsmen’s present role,
and it could be argued that this is in and of itself a fatal flaw, is his power to
singlehandedly inject himself into the administration of justice and impede or
corrupt it. Once a judge sets bail in a given case, one would hope that the issue
of the bailability of a defendant was settled. But because of the absolute power
of the bondsmen to withhold his services arbitrarily, the matter is not settled by
the judge. In fact the judge’s ruling can be defeated by the caprice of the
bondsman, who can refuse to provide bail for good reasons, bad reasons, or no
reasons.
4
Goldfarb went on to quote a now well-known court opinion, in which D.C. Circuit Court Judge J.
Skelly Wright wrote:
Certainly the professional bondsman system as used in this District is odious at
best. The effect of such a system is that the professional bondsmen hold the keys
to the jail in their pockets. They determine for whom they will act as surety –
4 Ronald Goldfarb, Ransom: A Critique of the American Bail System at 115 (NY Harper & Row 1965).
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who in their judgment is a good risk. The bad risks, in the bondsmen’s judgment,
and the ones who are unable to pay the bondsmen’s fees remain in jail. The
court and the commissioner are relegated to the relatively unimportant chore of
fixing the amount of bail.5
Observations such as these undoubtedly influenced the rationale behind at least one of the
American Bar Association’s (ABA) criminal justice recommendations surrounding pretrial
release. In commentary, the ABA lists “four strong reasons” for its recommendation to abolish
bail bonding for profit. Its second and third reasons are as follows:
Second, in a system relying on compensated sureties, decisions regarding which
defendants will actually be released move from the court to the bondsmen. It is
the bondsmen who decide which defendants will be acceptable risks – based to
a large extent on the defendant’s ability to pay the required fee and post the
necessary collateral. Third, decisions of bondsmen – including what fee to set,
what collateral to require, what other conditions the defendant (or the person
posting the fee and collateral) is expected to meet, and whether to even post the
bond – are made in secret, without any record of the reasons for these
decisions.6
In 1996, authors John Clark and D. Alan Henry provided a compelling rationale for why judicial
delegation to bondsmen of a decision to release or detain can undermine the criminal justice
system: “The goal of the commercial bonding agent – to maximize profits – provides no
reconciliation of the two conflicting goals of the pretrial release decision-making process [i.e.,
to allow pretrial release to the maximum extent possible while trying to assure that the accused
appears in court and will not pose a threat to public safety].”7
By focusing criticism on the for-profit bail industry, however, we are likely now missing a much
broader and more important point. For even in states where bondsmen have been made
unlawful or where they are actively avoided through non-commercial sureties, cash-only
financial conditions, or deposit bond options, judges are still effectively abdicating their
decision-making role by setting secured money bonds. In those states, as in states with
commercial bail bondsmen, judges are often simply setting amounts of money and then
assuming that the money will either facilitate release or detention. In fact, those amounts of
money can lead to opposite, and sometimes tragic or absurd results.
For example, during a 14-week study of over 1,250 cases conducted in 2011, researchers in
Jefferson County, Colorado, documented twenty cases in which defendants were ordered
5 Id. at 115-16 (quoting Pannell v. U.S., 320 F.2d 698, 699 (D.C. Cir. 1963) (concurring opinion)). 6 American Bar Association Standards for Criminal Justice: Pretrial Release (3rd ed. 2007), Std. 10-1.4(f)
(commentary) at 45 [hereinafter ABA Standards]. 7 John Clark & D. Alan Henry, The Pretrial Release Decision Making Process: Goals, Current Practices, and
Challenges, at 21 (Pretrial Res. Servs. Ctr. 1996).
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released but were unable to leave jail on bonds with cash-only financial conditions of $100 or
less. In addition, 120 other defendants were ordered released but remained detained for failure
to post the cash-only financial conditions of $1,000 or less.8 In 2011, National Public Radio
reported on Leslie Chew, who was arrested for stealing blankets and was ordered released with
a $3,500 secured financial condition. At the time of the report, he had been detained for six
months at a cost of over $7,000 to taxpayers for the lack of $350 to pay a for-profit bail
bondsman.9 Finally, in 2013, a Missouri judge set a $2 million secured financial condition on the
bail bond of a college student arrested in connection with the murder of a local bar owner.
When the Saudi Arabian government posted the $2 million, however, the judge refused to
release the student, explaining that the amount of money was meant to detain him, even if that
detention potentially violated the Missouri Constitution.10
In each of these cases, judges have made decisions to release or detain defendants, but by
setting often arbitrary amounts of money as secured financial conditions of bail bonds, they
have handed over the actual decision to release or detain to others – or to no one – thus giving
the money a life of its own. Essentially, judges have elevated money to the status of criminal
justice stakeholder, having influence and control over such pressing issues as jail populations,
court dockets, county budgets, and, most importantly, community safety.
However, money should never be allowed stakeholder status. The NIC’s framework document
defines “stakeholders” as “those who influence and have an investment in the criminal justice
system’s outcomes.”11 Money, albeit influential, has no investment whatsoever in the justice
system’s outcomes. Money simply exists, and is capable of aiding and abetting outcomes (such
as mere profit) running counter to justice system philosophies that more appropriately envision
community wellness and harm reduction.
Moreover, money is content to hand over its stakeholder status to anyone willing and able to
pay for the transfer. The framework document lists the typical key decision makers and
stakeholder groups for any given justice system, and nowhere on the list is a defendant’s
cousin, grandmother, bail bondsman, or foreign government. These persons and entities
certainly have a stake in the particular case, but they rarely have either the interest or
commonality of purpose to be considered stakeholders for criminal justice system issues.
Money as a criminal justice stakeholder erodes the very premises underlying what we know
works to achieve systemwide improvements, including a shared vision, a collaborative policy
8 See Claire M.B. Brooker, Michael R. Jones, & Timothy R. Schnacke, The Jefferson County Bail Project: Impact Study
Found Better Cost Effectiveness for Unsecured Recognizance Bonds Over Cash and Surety Bonds, 9-10 (PJI/BJA
2014).
9 Laura Sullivan, Bail Burden Keeps U.S. Jails Stuffed With Inmates, found at
http://www.npr.org/2010/01/21/122725771/Bail-Burden-Keeps-U-S-Jails-Stuffed-With-Inmates. 10 Sarah Rae Fruchtnicht, Missouri Judge Refuses to Release Saudi Student After He Posted $2M Bond, found at
http://www.freerepublic.com/focus/f-news/3027702/posts; Bill Draper, Saudi Remains Behind Bars After $2M
Bond Posted, found at http://news.yahoo.com/saudi-remains-behind-bars-2m-bond-posted-071009002.html. 11 NIC Framework, supra note 2, at 36.
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process, and evidence-based enhancement of individual decisions. If fifty years of research,
experimentation, and implementation have taught us how to best achieve legal and evidencebased criminal pretrial practices, the continued casual use of money at bail threatens to erode
if not erase those lessons from our memory.
The solution to this dilemma is not as simple as eliminating money from the bail process, but
the solution is potentially simple nonetheless. The solution comes from judges fully
understanding the essence of their decision-making duty at bail, and in their adhering to a
process in which they reclaim their roles as decision makers responsible for the pretrial release
or detention of any particular defendant. Following the history of bail, the foundational legal
principles of bail, the national best practice standards on release and detention, and the pretrial
research, the judge’s decision to release should be an “in-or-out,” “release/detain” decision,
immediately effectuated, with conditions (including, albeit rarely, financial conditions) set in
lawful ways that do not impede or otherwise defeat the intent of the decision. To move
forward in pretrial justice, we must examine this most important part of the bail process – the
judge’s decision to release or detain – and come to agreement on how that decision must be
made using legal and evidence-based knowledge of the administration of bail.
This is not a paper that seeks to blame judges for “doing it wrong;” instead, it applauds judges
for doing so well for so long, given a bail system with so many limitations. Indeed, throughout
the history of bail, from the Middle Ages until the 1960s in America, bail-setting officials were
only able to use one condition of release – money – to provide reasonable assurance of only
one valid purpose for limiting pretrial freedom – court appearance. Our culture today is still one
in which many persons equate the process of bail with money, and it is the rare judge who can
see beyond the blurring of these two very different concepts. Moreover, judges are in no way
assisted by prosecutors who continually request secured bonds in arbitrarily high amounts,
defense attorneys who acquiesce and merely argue for lesser amounts, and public pressure,
which can force judges to focus on the monetary condition of bail at the expense of all other
conditions. Judges are often also hindered by bad bail statutes, some of which mandate
secured financial conditions or even the use of monetary bail bond schedules. And finally,
judges are given little training in bail and pretrial issues, leaving them with no alternative but to
study the perhaps antiquated but customary practices of their colleagues when learning how to
make effective bail decisions.
But since the 1960s America has embarked on a journey of infrastructure improvements in bail,
including the creation and implementation of non-financial conditions and other alternatives to
money-based releases, the development and refinement of transparent detention processes,
and even a second constitutionally valid purpose for limiting pretrial freedom – public safety.
These improvements, coupled with recent and significant research showing what works to best
attain the goals of bail, give judges the foundation for making effective pretrial release and
detention decisions despite whatever hurdles might stand in the way.
The remainder of this paper describes this new infrastructure by exploring how the history, law,
model statutes, national pretrial standards, and pretrial research all support and encourage an
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in-or-out, or “bail/no bail,” decision as well as how and when to incorporate money into that
decision. In the last section, I will explore how judges should view risk at bail and use the kind of
tools specifically created for them to follow a more effective decision-making process leading to
decisive and immediately effectuated orders to release or detain defendants pretrial.
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Chapter 1. The History and the Law to the Twentieth
Century
The history of bail and the law evolving through that history are intertwined. Historical events
are often the catalyst for new laws, and the new laws often generate new practices, which, in
turn, necessitate changes to the laws. In 1676 England, for example, officials arrested an
individual known as Jenkes for making a speech upsetting to the King, charged him with
sedition (a charge that technically required release on bail), and held him for two years using
various procedural loopholes. His case, and other cases in which defendants were given a
similar procedural “runaround” so that they remained detained, led parliament to pass the
Habeas Corpus Act of 1679, which provided a procedure that “plugged the loopholes and made
even the king’s bench judges subject to penalties for noncompliance.”12 Unfortunately,
recalcitrant judges quickly learned that they could obtain the same result by setting bonds in
unattainable financial amounts, a practice ultimately leading to the English Bill of Rights, which
prohibited excessive bail.13 In these cases, historical events led to laws, which, in turn, affected
historical events. Accordingly, it is logical and practical to discuss history and the laws together
in terms of their authority for, and effect on, judicial decision making.
When discussing the history and law surrounding bail, they may be recounted either as a series
of singular events or as phenomena or trends shaping the way we administer the bail process
today. For purposes of this paper, it is most helpful to do the latter. Accordingly, viewed as
historical phenomena, we see two main threads running through history that have the largest
impact on current practices and judicial decision making.
12 Caleb Foote, The Coming Constitutional Crisis in Bail I, 113 U. Pa. L. Rev 959, 967 (1965) [hereinafter Foote]. 13 Id. at 967-68.
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The First Historical Thread: The Move from Unsecured Bonds Administered by
Personal Sureties to Secured Bonds Administered by Commercial Sureties
The first historical thread is the gradual transformation, starting from the beginning of bail itself
and moving through the Middle Ages to the present, from using mostly unsecured bonds
administered through a personal surety system to using mostly secured bonds administered
through a commercial surety system.14 Fully understanding this thread is crucial because the
trend toward using secured bonds has led to significant hindrances to the judges’ decisions to
release or detain once those decisions have been made. For purposes of this paper, however, it
should suffice to say that the historical practice of using unsecured bonds administered through
a personal surety system (i.e., a system in which the surety was a person or persons who were
willing to take responsibility over the accused for no money and for no promise of
reimbursement upon default) was the predominant practice from the beginning of our modern
notions of bail in the Middle Ages until the 1800s in America. When thinking about the personal
surety system, we focus on the significant differences in the ways in which money was used. In
addition to the prohibition of profit and indemnification for the bail transaction in the personal
surety system, any financial condition set at bail was always what we might call today an
unsecured financial condition, meaning that it was not tied to any particular collateral; instead,
it was secured only by the promise of the personal surety, and it was payable only upon default
of the accused to come back to court.
In the mid-to-late 1800s, however, that practice gave way to using mostly secured bonds
administered primarily through a commercial surety system when America began running out
of willing personal sureties. Unlike unsecured financial conditions, secured financial conditions,
such as in “cash bonds” or “surety bonds,” mean that someone (typically a defendant or his
family) must pay some amount of money up-front for the privilege of leaving the jail. Even
when a bond is technically secured through bail insurance company assets, the defendant or
the defendant’s family must typically pay a fee and sometimes collateralize the bond to obtain
a bondsman’s assistance. Because secured bonds tend to cause pretrial detention for those
unable to pay the up-front money, we have continually seen pretrial detention due to money
throughout the twentieth century to the present time.15 As we will see later, the collision of
this historical thread with the second historical thread, discussed next, explains why America
has had to endure two generations of bail reform in the twentieth century and is currently in
the middle of a third.
14 See Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for
American Pretrial Reform (NIC 2014) [hereinafter Fundamentals]. 15 Though some who oppose bail reform doubt the premise, the history of American bail in the twentieth century is
replete with literature describing pretrial detention due to the inability to pay the up-front costs of secured bonds.
Most recently, the Bureau of Justice Statistics reported that, “About 9 in 10 detained defendants had a bail amount
set but were unable to meet the financial conditions required to secure release. Those with a bail amount set
under $5,000 (71%) were nearly 3 times as likely to secure release as defendants with a bail amount of $50,000 or
more (27%).” Brian A. Reaves, Felony Defendants in Large Urban Counties, 2009-Statistical Tables, at 15 (BJS 2013).
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The Second Historical Thread: The “Bail/No Bail” Dichotomy Leading to an In-orOut Decision
The second historical thread is more relevant to the decision to release or detain and thus
requires more explanation, for it involves the creation and nurturing through the centuries of a
division of defendants into two mutually exclusive groups – what I have termed the “bail/no
bail,” or “release/detain” dichotomy. This historical and legal thread, once understood, is the
thread that instructs judges that their pretrial decisions must not depend on the caprice of
outside factors, and that their release and detention decisions should be in-or-out decisions
that are immediately effectuated. The genesis of this thread takes us back to England in the
Middle Ages.
After the Normans invaded Britain in 1066, they gradually established a criminal justice system
beginning to resemble the one we see today. Once completely a private process, justice slowly
became public. This was due to several important movements, but most relevant to the judge’s
decision to release or detain was the crown’s initiation of crimes against the state by
designating certain felonies “crimes of royal concern” (or “pleas of the crown”) and by placing
persons accused of those particular felonies under the control and jurisdiction of itinerant royal
justices.16 According to bail historian William Duker, “The writ de homine replegiando, which
commanded the sheriff to release the individual detained unless he were held for particular
reasons, probably dates from this point [and] although the writ is famous for being the first
‘writ of liberty,’ it actually established the first written list of nonbailable offenses.”17 This
began a “code of custom” (akin to our notions of common law) surrounding bail that
established bailable and nonbailable offenses.
18
By the 1270s, however, the crown began to scrutinize this customary “bail/no bail” dichotomy
and quickly found areas of abuse. As a result of the Hundred Inquests of 1274, the crown
became aware that sheriffs (who at that time were responsible for release and detention of
bailable and unbailable defendants) were committing two primary abuses: (1) they were
extracting money from bailable defendants before releasing them (and sometimes even
arresting innocent people for no reason to demand payment); and (2) they were releasing
otherwise unbailable defendants, also for “considerable sums of money.”19 At the time, these
16 See Elsa De Haas, Antiquities of Bail, at 24-25, 60-63 (AMS Press, NY 1966) [hereinafter De Haas]; June Carbone,
Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, 34 Syr. L.
Rev. 517, 521 (1983) [hereinafter Carbone].
17 William F. Duker, The Right to Bail: A Historical Inquiry, 42 Alb. L. Rev. 33, 44 (1977-78) (internal footnotes
omitted) [hereinafter Duker].
18 Id. at 45; see also Hermine Herta Meyer, Constitutionality of Pretrial Detention, 60 Geo. L. J. 1139, 1154 (1971-
72) [hereinafter Meyer].
19 De Haas, supra note 16, at 91-97. A pure “release/no release” system structured around bailability through the
local sheriffs was made more complex, however, through numerous exceptions based on who could later impact
the bail decision (especially the Court of King’s Bench) and the various writs that governed release, which also
often required payment. See Meyer, supra note 18, at 1155-56; De Haas, supra note 16, at 51-127.
14 | Page
abuses were likely considered equally egregious to the crown. However, while the history of
bail is occasionally punctuated with abuses leading to unlawful releases, it is abundant with
instances of unlawful detention, leading to the following more typical scenario, as recounted by
author Hermine Herta Meyer:
The poor remained in prison. Thus, it is reported that Ranulfo de Rouceby
remained in prison for eight years, until he paid forty shillings to be pledged,
although he could have been released on bail from the beginning. The answer to
these abuses was the Statute of Westminster I, which was the first statutory
regulation of bail. It was a reform statute, addressed to the sheriffs,
undersheriffs, constables, and bailiffs and intended to give them definite
guidelines in handling release on bail.20
The Statute of Westminster, enacted in 1275, sought to correct these abuses primarily by
establishing criteria governing bailability, largely based on a prediction of the outcome of the
trial by examining the nature of the charge, the weight of the evidence, and the character of
the accused. While doing so, the Statute expressly categorized bailable and unbailable offenses,
creating the first express legislative articulation of a “bail/no bail” scheme.
More importantly, however, the Statute also made it clear that bailable defendants were to be
released and unbailable defendants were to be detained. Thus, the “bail/no bail” dichotomy
was mutually exclusive – if an accused were deemed bailable, he could not also be unbailable
or treated as unbailable by being detained. Likewise, an accused who was deemed unbailable
could not also be bailable or treated as bailable by being released. Sheriffs who disobeyed or
abused this aspect of the dichotomy, especially by collecting money, did so at their peril. The
following language was specifically written into the Statute:
And if the Sheriff, or any other, let any go at large by Surety, that is not
replevisable [i.e., unbailable], if he be Sheriff or Constable or any other Bailiff of
Fee, which hath keeping of Prisons, and thereof be attainted, he shall lose his
Fee and Office for ever: And if the Under-Sheriff, Constable, or Bailiff of such as
have Fee for keeping of Prisons, [do it] contrary to the Will of his Lord, or any
other Bailiff . . . , they shall have Three Years Imprisonment, and make Fine at
the King’s Pleasure. And if any withhold prisoners replevisable [i.e., bailable],
after that they have offered sufficient Surety, he shall pay a grievous
Amerciament to the King; and if he take any Reward for the Deliverance of such,
he shall pay double to the Prisoner, and also shall [be in the great mercy of] the
King.21
In sum, the Statute “eliminated the discretionary power of the sheriffs and local ministers by
carefully enumerating those crimes which were not replevisable and those crimes which were
20 Meyer, supra note 18, at 1155 (internal footnotes omitted). 21 De Haas, supra note 16, at 95-96 (quoting Statute of Westminster I, 3 Edward I, c. 15 (1275)).
15 | Page
replevisable by sufficient sureties without further payment.”22 Thus, if bailable, the person
“had to be released upon sufficient surety [i.e., persons],23 without any additional payment to
the sheriff.”24 At least so far as the sheriffs were concerned, nonbailable persons were to
remain detained.25
For the next 400 years, major bail reforms grew in response to other abuses, many of which
also hindered the release of bailable defendants.26 For example, when the sheriffs again began
charging for release, author William Duker reports that Parliament enacted a law in 1444
declaring that,
[S]heriffs and their subordinates were not to accept anything ‘by Occasion or
under Colour of their office’ for their ‘Use, Profit or Avail’ offered by anyone
subject to arrest or from anyone seeking mainprise or bail, under pain of fine . . .
[and that] said officials were required to set at large those held for bailable
offenses offering sufficient surety.27
In 1483, another statute gave justices complete discretion to release prisoners detained by the
sheriffs “to remedy the great abuse of incarceration without opportunity for bail or
mainprise.”28 In 1554, Parliament extended the reform provisions of the Statute of
Westminster to those justices as well, apparently due to their own susceptibility to “the same
22 Duker, supra note 17, at 46 (internal footnotes omitted). 23 The term “sufficient surety” had a particular meaning in thirteenth century England that we tend to forget today.
As briefly mentioned previously, and as more fully described infra, it did not mean paying money up-front, what
we might today call a secured bond or through any kind of commercial surety. Indeed, collecting money from an
accused to pay for his or her release up-front was considered one of the abuses – essentially a bribe – that
hindered release and that thus necessitated statutory remedy. Instead, “sufficient surety” referred specifically to
the personal surety system then in place, which included the use of one or more reputable persons willing to take
responsibility for the defendant’s appearance in court without remuneration or indemnification.
24 Meyer, supra note 18, at 1156. 25 The crown and the crown’s royal justices were still given wide latitude to continue granting bail to those deemed
unbailable, typically through various technical writs governing release. See De Haas, supra note 16, at 96. Later, as
the power to initially grant or deny bail was transferred from sheriffs to justices of the peace, Parliament enacted
laws similar to the Statute of Westminster for judges. See Meyer, supra note 18, at 1155-56. These complicating
factors, along with other complex exceptions to all rules regarding the administration of bail in early England
(albeit, importantly, all exceptions allowing discretion to release the unbailable, not to detain the bailable, see
Carbone, supra note 16, at 522 n. 29), make the concept of a “bail”/“no bail” dichotomy in England an accurate yet
admittedly simplified notion that was more fully realized in America.
26 The period was also occasionally marked by laws designed to eliminate any right to bail. See Duker, supra note
17, at 56-57 (“Beginning in the latter part of the fourteenth century, statutes, ordinances, and proclamations, that
made new offenses punishable by imprisonment, forbade bail or mainprise in such cases. . . . Thus, although the
right to bail was on a progressive course, it existed in a rather precarious state.”). 27 Id. at 54 (quoting 23 Hen. 6, c. 9 (1444)). 28 Id. at 55. This statute also attempted to curb the abuse of sheriffs allowing prisoners to escape upon payment of
a fee. The statute apparently proved unsuccessful, however, and thus was repealed in 1486. Id.
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corrupting influences which operated on the sheriffs in earlier periods.”29 But the most notable
reforms came in the seventeenth century, primarily to “address[] circumvention of the bail
process to detain individuals in disfavor with the Crown.”30
“Bail” and “No Bail” in England in the Seventeenth Century
One of the first reforms came in the 1620s, when Charles I ordered five knights to be jailed
without a charge, essentially circumventing the Statute of Westminster (and the Magna Carta,
upon which the Statute was based) that triggered a bail determination based on the alleged
charge. Responding to this particular abuse, Parliament passed the Petition of Right, which
prohibited detention “without being charged with anything to which they might make answer
according to law.”31 Likewise, as previously noted, when the crown’s sheriffs and justices used
procedural delays to avoid setting bail, Parliament responded by passing the Habeas Corpus Act
of 1679, which provided procedures designed to prevent delays prior to bail hearings.32
Specifically, the Act set strict time limits for acting on writs governing release, and stated that
officials,
‘shall discharge the said Prisoner from his Imprisonment, taking his or their
Recognizance, with one or more Surety or Sureties, in any Sum according to their
Discretion, having regard to the Quality of the Prisoner and Nature of the
Offense, for his or their Appearance in the Court of the King’s Bench . . . unless it
shall appear . . . that the Party [is] . . . committed . . . for such Matter or Offenses
for which by law the Prisoner is not bailable.’33
Unfortunately, by specifically acknowledging discretion, the Habeas Corpus Act effectively
allowed financial conditions of bail to be set in unattainable amounts.34 According to author
William Holdsworth, the justices began setting high bail amounts only after James II failed in his
attempts to repeal Habeas Corpus, which he considered to be a “destruction . . . of royal
authority,”35 and it appears to be the first time that a condition of bail, rather than the fact of
29 Id. 30 Carbone, supra note 16, at 528. 31 Duker, supra note 17, at 64 (quoting Petition of Right of 1650, 3 St. Tr. 221-24). For in-depth discussions of the
Five-Knights Case, also known as Darnell’s case, see id at 58-65; Meyer, supra note 18, at 1181-85. 32 See Duker, supra note 17, at 66. 33 Id. at 65-66 (quoting 31 Car. 2, c. 2. (1679)); See Carbone, supra note 16, at 528. A discussion of the illustrative
case of Francis Jenkes is found in various sources. See Duker, supra note 17, at 65-66 (citing Jenkes Case, 6 St. Tr.
1190 (1676)); Carbone, supra note 16, at 528 (citing same); William Searle Holdsworth, A History of English Law, at
116-18 (Methuen, London, 1938) [hereinafter Holdsworth]. 34 See Duker, supra note 17, at 66. 35 Holdsworth, supra note 33, at 118-19.
17 | Page
bail itself, became a concern.36 In response, William and Mary consented to the English Bill of
Rights, which declared, among other things, that “excessive bail ought not to be required,”37
a
clause that appears in similar form in the Eighth Amendment to the United States Constitution.
In terms of practicality, it must be remembered that this prohibition on excessive bail in
England existed within the context of the personal surety system. In England (and America until
the late 1800s) the personal surety system operated by decision makers assigning a surety (i.e.,
a person or several people) to act as a “private jailer” 38 for the accused and to make sure the
accused faced justice. The personal surety system had three essential elements: (1) a reputable
person (the surety, sometimes called the “pledge” or the “bail”); (2) this person’s willingness to
take responsibility for the accused under a private jailer theory and with a promise to pay the
required financial condition on the back-end – that is, only if the defendant forfeited his
obligation; and (3) this person’s willingness to take the responsibility without any initial
remuneration or even the promise of any future payment after forfeiture. Thus, the accused
was not required (or even permitted) to pay a surety or jailor prior to release. Excessiveness
under a personal surety system meant that the financial condition was in a prohibitively high
amount such that no person, or even group of persons, would willingly take responsibility for
the accused.
Even before the prohibition on excessive amounts, however, financial conditions of bail were
often beyond the means of any particular defendant or a single surety, thus requiring
sometimes several sureties to provide “sufficiency” for the bail determination. Accordingly, it is
likely that some indicator of excessiveness at a time of relatively plentiful sureties for any
particular defendant was merely continued detention despite the amount of the condition
being set. Nevertheless, before the abuses leading to the English Bill of Rights and Habeas
Corpus Act, there was no real historical indication that high amounts required of the surety led
to detention in England, and this trend followed into America: “although courts had broad
authority to deny bail for defendants charged with capital offenses, they would generally
release in a form of pretrial custody defendants who were able to find willing custodians.”39
36 This was a monumental shift, given that money was the only means of securing release at that time, and
remained so until the advent of “pure” (i.e., no money) personal recognizance bonds and non-financial conditions
in America in the twentieth century. Nevertheless, money, when ordered in secured form, is typically the only
limitation that acts as a condition precedent to release. Most bail bond conditions are conditions subsequent –
that is, release is obtained, but if the condition occurs (or fails to occur, depending on its wording), it will trigger
some consequence, and sometimes bring pretrial freedom to an end. Secured money at bail is the quintessential,
and typically the only condition precedent. Unlike other conditions, some or all of a secured financial condition
often must be paid first in order to initially obtain release.
37 English Bill of Rights, 1 W. & M., 2d Sess., ch. 2 (1689). 38 Reese v. United States, 76 U.S. (9 Wall.) 13, 21 (1869). 39 Betsy Kushlan Wanger, Limiting Preventive Detention Through Conditional Release: The Unfulfilled Promise of the
1982 Pretrial Services Act, 97 Yale L. J. 320, 323-24 (1987-88); Jonathan Drimmer, When Man Hunts Man: The
Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. 731, 748 (1996-97)
(same).
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“Bail” and “No Bail” in America
Indeed, this notion that bailable defendants should necessarily obtain release naturally
followed from England to America, a country founded on principles of liberty and freedom.
Author F.E. Devine wrote as follows:
Blackstone, writing in the last decade of America’s colonial period, explains the
workings of the bail system known to the founders of the United States. A
suspected offender who was arrested was brought before a justice of the peace.
After examining the circumstances, unless the suspicion was completely
unfounded, the justice could either commit the accused to prison or grant bail. A
justice of the peace who refused or delayed bail in the case of a suspect who was
legally eligible for it committed an offense. Requiring excessive bail was also
prohibited by the common law. However, Blackstone explained, what
constituted excessive bail was left to the court upon considering the
circumstances. Granting bail consisted of a delivery of the suspect to sureties
upon their giving sufficient security for appearance. The individual bailed merely
substituted, Blackstone remarked, their friendly custody for jail.40
Moreover, in colonial America excessiveness rarely played a factor in hindering that release to
“friendly custody.” In a review of the administration of bail in colonial Pennsylvania (1682-
1787), author Paul Lermack concluded that “bail . . . continued to be granted routinely . . . to
persons charged with a wide variety of offenses . . . [and ] [a]though the amount of bail
required was very large in cash terms and a default could ruin a guarantor, few defendants had
trouble finding sureties.”41 This is likely because “[t]he form of bail in criminal cases, all of the
common law commentators agree, was by recognizance,”42 that is, with no requirement for
anyone to pay money up-front. Sufficiency was often determined by requiring sureties (i.e.,
persons) to “perfect” or “justify” themselves as to their ability to pay the amount set, but they
were not required to post an amount prior to release. Instead, the sureties were held to a debt
that would become due and payable only upon their inability to produce the accused.43
Because the sureties were not allowed to profit, or even be indemnified against potential loss,
bonding fees and collateral also did not stand in the way of release.
40 F.E. Devine, Commercial Bail Bonding: A Comparison of Common Law Alternatives, at 4 [hereinafter Devine] (citing William Blackstone, Commentaries on the Laws of England, at pp. 291, 295-97, Chitty ed. (Philadelphia: J.P.
Lippincott, 1857) (Praeger Publishers, 1991)). 41 Paul Lermack, The Law of Recognizances in Colonial Pennsylvania, 50 Temp. L.Q. 475, 497, 505 (1977)
[hereinafter Lermack].
42 Devine, supra note 40, at 5. See also Lermack, supra note 41, at 504 (“Provision was sometimes made for posting
bail in cash, but this was not the usual practice. More typically, a bonded person was required to obtain sureties to
guarantee payment of the bail on default.”). 43 See Devine, supra note 40, at 5.
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For the most part, the American colonies applied English law verbatim, but differences in
beliefs about criminal justice, differences in colonial customs, and even differences in crime
rates between England and the colonies led to more liberal criminal penalties and, ultimately,
changes in the laws surrounding the administration of bail.44 Indeed, the differences between
America and England at the time of Independence included fundamental dissimilarities in how
to effectuate the “bail/no bail” or “release/detain” dichotomy. While England gradually enacted
a complicated set of rules, exceptions, and grants of discretion that governed bailability,
America leaned toward more simplified and liberal application by granting a nondiscretionary
right to bail to all but those charged with the gravest offenses and by settling on bright line
demarcations to effectuate release and detention.
According to Meyer, early American statutes “indicate that [the] colonies wished to limit the
discretionary bailing power of their judges in order to assure criminal defendants a right to bail
in noncapital cases.” 45 This is a fundamental point worth explaining. In England, the Statute of
Westminster listed bailable and unbailable offenses, but bailability was to be finally determined
by officials also looking at things like the probability of conviction and the character of the
accused, which were, themselves, carefully prescribed in the Statute. Accordingly, there was,
even then, discretion left in the “bail/no bail” determination, which was ultimately retained
throughout English history. America, on the other hand, chose bright line demarcations of
bailable and unbailable offenses, gradually moving the consideration of things like evidence or
character of the accused to determinations concerning conditions of bail or release,
presumably so they would not interfere with bailability (or release) itself.
Thus, even before some of England’s later reforms, in 1641 Massachusetts passed its Body of
Liberties, creating an unequivocal right to bail for non-capital cases, and re-writing the list of
capital cases. In 1682, “Pennsylvania adopted an even more liberal provision in its new
constitution, providing that ‘all prisoners shall be Bailable by Sufficient Sureties, unless for
capital Offenses, where proof is evident or the presumption great.’”46 While this language
introduced consideration of the evidence for capital cases, “[a]t the same time, Pennsylvania
limited imposition of the death penalty to ‘willful murder.’ The effect was to extend the right to
bail far beyond the provisions of the Massachusetts Body of Liberties and far beyond English
law.”47 The Pennsylvania law was quickly copied, and as America grew “the Pennsylvania
provision became the model for almost every state constitution adopted after 1776.”48 The
Continental Congress, too, apparently copied the Pennsylvania language when it adopted the
Northwest Territory Ordinance of 1787.49
44 See Carbone, supra note 16, at 529-30. 45 Meyer, supra note 18, at 1162. 46 Carbone, supra note 16, at 531 (quoting 5 American Charters 3061, F. Thorpe ed. 1909) (internal footnotes
omitted).
47 Id. at 531-32 (internal footnotes omitted). 48 Id. at 532. 49 Meyer, supra note 18, at 1163-64 (citing 1 Stat. 13).
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In addition to their liberality, the commonality of these provisions is that they rested upon the
Statute of Westminster’s original template of a “bail/no bail” dichotomy.50 In fact, the language
that “all persons are bailable . . . unless or except,” which is used in various forms in most state
constitutions or statutes today, is the classic articulation of that dichotomy. Moreover, even in
state bail schemes without constitutional right to bail provisions and with statutes that have
tended to erode the notion that bail equal release, the “bail/no bail” dichotomy still exists
because at the end of the enacted process, one can typically say that any particular defendant
is considered either bailable or unbailable under the scheme. Today, it is more appropriately
expressed as “release” or “detention,” whether that language is constitutional or statutory,
because the notion that bailability should lead to release was foundational in early American
law.
Indeed, language from the United States Supreme Court supports the notion that bailability
should equal release. In 1891, the Supreme Court described bail as a mechanism of release,
even as the Court likely struggled with the potential for detention due to the declining number
of personal sureties during the nineteenth
century. In United States v. Barber, the Court wrote as follows:
It is true that the taking of recognizance or bail for appearance is primarily for
the benefit of the defendant, and in civil cases it is usual to require the costs of
entering into such recognizances to be paid by the defendant or other person
offering himself as surety. But in criminal cases it is for the interest of the public
as well as the accused that the latter should not be detained in custody prior to
his trial if the government can be assured of his presence at that time, and as
these persons usually belong to the poorest class of people, to require them to
pay the cost of their recognizances would generally result in their being detained
in jail at the expense of the government, while their families would be deprived
in many instances of their assistance and support. Presumptively they are
innocent of the crime charged, and entitled to their constitutional privilege of
being admitted to bail, and, as the whole proceeding is adverse to them, the
expense connected with their being admitted to bail is a proper charge against
the government.51
Four years later, the Court similarly explained in Hudson v. Parker that the “power to permit
bail to be taken” rests on grounds associated with release:
The statutes of the United States have been framed upon the theory that a
person accused of a crime shall not, until he has been finally adjudged guilty in
50 See Iowa v. Briggs, 666 N.W. 2d 573, 579 n. 3 (Iowa 2003) (“The initial recognition of a right to bail of the Statute
of Westminster underlies the language of a majority of state constitutions and successive forms of federal
legislation guaranteeing bail in certain cases.”).
51 United States v. Barber, 140 U.S. 164, 167 (1891).
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the court of last resort, be absolutely compelled to undergo imprisonment or
punishment, but may be admitted to bail not only after arrest and before trial,
but after conviction and pending a writ of error.52
Indeed, it was Hudson upon which the Supreme Court relied in Stack v. Boyle in 1951,53 when
the Court wrote its memorable quote equating the right to bail with the right to release and
freedom:
From the passage of the Judiciary Act of 1789, to the present Federal Rules of
Criminal Procedure, Rule 46 (a)(1),54 federal law has unequivocally provided that
a person arrested for a non-capital offense shall be admitted to bail. This
traditional right to freedom before conviction permits the unhampered
preparation of a defense, and serves to prevent the infliction of punishment
prior to conviction. Unless this right to bail before trial is preserved, the
presumption of innocence, secured only after centuries of struggle, would lose
its meaning.55
In his concurring opinion, Justice Jackson elaborated on the Court’s reasoning:
The practice of admission to bail, as it has evolved in Anglo-American law, is not
a device for keeping persons in jail upon mere accusation until it is found
convenient to give them a trial. On the contrary, the spirit of the procedure is to
enable them to stay out of jail until a trial has found them guilty. Without this
conditional privilege, even those wrongly accused are punished by a period of
imprisonment while awaiting trial, and are handicapped in consulting counsel,
searching for evidence and witnesses, and preparing a defense. To open a way of
escape from this handicap and possible injustice, Congress commands allowance
of bail for one under charge of any offense not punishable by death . . .
providing: ‘A person arrested for an offense not punishable by death shall be
admitted to
bail’ . . . before conviction.56
Among other things, Stack has been read to stand for the proposition that bail may not be set
to achieve invalid state interests,57 and has been similarly cited by courts and scholars for the
52 Hudson v. Parker, 156 U.S. 277, 285 (1895). 53 Stack v. Boyle, 342 U.S. 1 (1951). 54 In addition to the statutory grant of a right to bail, at that time Rule 46 required the bail bond to be set to
“insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the
weight of the evidence against him, the financial ability of the defendant to give bail and the character of the
defendant.” Id. at 6 n. 3. 55 Id. at 4 (internal citations omitted). 56 Id. at 7-8.
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proposition that bail set with a purpose to detain would be invalid.58 Support for that
proposition also comes from Justice Douglas, who had occasion to also write about bail in cases
in which he sat as Circuit Justice.59 In one such case, he commented on the interplay between
the clear unconstitutionality of setting bail with the purpose to detain and de-facto detention:
It would be unconstitutional to fix excessive bail to assure that a defendant will
not gain his freedom. Stack v. Boyle, 342 U.S. 1, 72 S. Ct. 1, 96 L. Ed. 3. Yet in the
case of an indigent defendant, the fixing of bail in even a modest amount may
have the practical effect of denying him release. See Foote, Foreword: Comment
on the New York Bail Study, 106 U. of Pa. L. Rev. 685; Note, 106 U. of Pa. L. Rev.
693; Note, 102 U. of Pa. L. Rev. 1031. The wrong done by denying release is not
limited to the denial of freedom alone. That denial may have other
consequences. In case of reversal, he will have served all or part of a sentence
under an erroneous judgment. Imprisoned, a man may have no opportunity to
investigate his case, to cooperate with his counsel, to earn the money that is still
necessary for the fullest use of his right to appeal.
In the light of these considerations, I approach this application with the
conviction that the right to release is heavily favored and that the requirement
of security for the bond may, in a proper case, be dispensed with. Rule 46 (d)
indeed provides that ‘in proper cases no security need be required.’ For there
may be other deterrents to jumping bail: long residence in a locality, the ties of
57 See, e.g., Galen v. County of Los Angeles, 477 F.3d 652, 660 (2007) (“The state may not set bail to achieve invalid
interests.”) (citing Stack, 342 U.S. at 5, and Wagenmann v. Adams, 829 F.2d. 196, 213 (1st Cir. 1987) (finding no
legitimate state interest in setting bail with a purpose to detain)).
58 See, e.g., Duker, supra note 17, at 69 (citing cases); Daniel J. Freed & Patricia M. Wald, Bail in the United States:
1964, at 8 (Dept. of Just. & Vera Foundation 1964) [hereinafter Freed & Wald] (“In sum, bail in America has
developed for a single lawful purpose: to release the accused with assurance he will return at trial. It may not be
used to detain, and its continuing validity when the accused is a pauper is now questionable.”). Stack held that
“Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose [court appearance] is
‘excessive’ under the Eighth Amendment.” 342 U.S. at 5. In his concurrence, Justice Jackson addressed a claim that
the trial court had set bail in that case with a purpose to detain as follows: “[T]he amount is said to have been fixed
not as a reasonable assurance of [the defendants’] presence at the trial, but also as an assurance they would
remain in jail. There seems reason to believe that this may have been the spirit to which the courts below have
yielded, and it is contrary to the whole policy and philosophy of bail.” Id. at 10. While the Court in Salerno upheld
purposeful pretrial detention pursuant to the Bail Reform Act of 1984, it did so only because the statute contained
“numerous procedural safeguards” that are rarely, if ever, satisfied merely through the act of setting a high
secured financial condition. See United States v. Salerno, 481 U.S. at 742-43, 750-51 (1987). 59 In the most notable of these decisions, Justice Douglas uttered language that indicated his desire to invoke the
Equal Protection Clause. See Bandy v. United States, 81 S. Ct. 197, 198 (1960) (“Can an indigent be denied freedom,
where a wealthy man would not, because he does not happen to have enough property to pledge for his
freedom?”); Bandy v. United States, 82 S. Ct. 11, 13 (1961) (“[N]o man should be denied release because of
indigence. Instead, under our constitutional system, a man is entitled to be released on ‘personal recognizance’
where other relevant factors make it reasonable to believe that he will comply with the orders of the Court.”).
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friends and family, the efficiency of modern police. All these in a given case may
offer a deterrent at least equal to that of the threat of forfeiture.60
If “it would be unconstitutional to fix excessive bail to assure that a defendant will not gain his
freedom,” as Justice Douglas so wrote, then how is a judge to effectuate a decision to detain?
The Supreme Court answered that question in United States v. Salerno,61 in which the Court
approved the federal detention statute (a new articulation of a “no bail” scheme) against facial
due process and 8th Amendment challenges. Among other things, the Salerno Court
purposefully mentioned Stack as a valid part of bail jurisprudence, thus retaining the relevance
of Stack’s language equating bail with release. More importantly, however, the Salerno opinion
teaches us how exactly to implement the “no bail” side of the “bail/no bail” dichotomy. In
particular, Salerno instructs that when examining a law with no constitutionally-based right to
bail parameters (such as the federal law), the legislature may enact statutory limits on pretrial
freedom (including detention) so long as they are not excessive in relation to the government’s
legitimate interests, they do not offend due process (either substantive or procedural), and
they result in bail practices through which pretrial liberty is the norm and detention is the
carefully limited exception to release.62
60 Bandy v. United States, 81 S. Ct. 197, 198 (1960) (internal footnote omitted). 61 481 U.S. 739 (1987). 62 Id. (“In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited
exception.”).
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Chapter 2. How American Pretrial Decision Making Got
Off Track in the Twentieth Century
If the history of bail and the law that grew up around the history suggest, if not demand, a
“release/detain” decision, then the critical questions become: “How did we get to where we
are today – a point in time when decisions to release result in detention and decisions to detain
result in release? How did we get to a point when judges are allowed to make ‘decisions’ that
are not immediately effectuated or that are only effectuated through others with differing
goals?” The answers to these questions are found in the collision of the two main historical
threads in America in the nineteenth and twentieth centuries, and in a line of cases that was
created out of necessity due to that collision.
The Collision of Historical Threads
As previously noted, until the 1800s America had adopted England’s personal surety system to
administer bail, a system with three primary elements: (1) a person, or surety, preferably
known to the court; (2) willing to take responsibility for any particular defendant; and (3) for no
money or even the promise of reimbursement upon default. Because the law required the
release of bailable defendants, this personal surety system posed few barriers to the release
decision because of these essential elements. Even though amounts of financial conditions
might be chosen arbitrarily, and even though the amounts were often high, they were amounts
that only needed to be paid on the back-end – that is, they were what we now call unsecured
bonds, with financial conditions due and payable only upon default of the defendant. Because
sureties were not allowed to profit from the bail transaction or to be indemnified, there were
also no fees or any other front-end financial barriers to release. Finding a person or persons
sufficient to cover the amount simply meant stacking sureties to the point that the decision
maker had reasonable assurance of court appearance. This system worked so long as there
were plentiful personal sureties, but in the 1800s, those sureties began to disappear.63
It is widely accepted that the personal surety system flourished for some time in England due to
that country’s limited geography and somewhat close-knit populace. But in America in the midnineteenth century, various factors were at play causing the demand for personal sureties to
quickly outgrow the supply. Those factors included (1) “Americans’ pursuit of the rapidly
expanding frontier as well as the growth of impersonal urban areas [that] diluted the strong,
small community ties and personal relationships supporting the personal surety system,” and
(2) “the unsettled frontier [that] increased the risks of a defendant’s flight and created a further
disincentive to the undertaking of a personal surety obligation.”64 On the other hand, demand
63 See generally, Fundamentals, supra note 14 and sources cited therein. 64 Peggy M. Tobolowsky & James F. Quinn, Pretrial Release in the 1990s: Texas Takes Another Look at Non-financial
Release Conditions, 19 New Eng. J. on Crim. And Civ. Confinement 267, 274, n 38 (1993) [hereinafter Tobolowsky &
25 | Page
for sureties in America was increased by an overall decline in the death penalty, and thus an
expansion of the right to bail in noncapital cases after 1789.65 These factors, coupled with everrising arbitrary bail bond amounts (financial conditions), meant that an alternative to the
personal surety system was necessary to effectuate bail as a mechanism for release and to
reduce the growing jail populations due to the detention of bailable defendants. Accordingly,
states began experimenting with new ways to administer bail.
Interestingly, albeit for different reasons, England faced the same dilemma of unnecessary
pretrial detention of defendants due to lack of personal sureties in the 1800s, but chose a
different path toward correcting it. Author Hermine Herta Meyer recounts as follows:
At about the same time, the English became aware of the fact that a system
which inseparably connected freedom with money was harsh and unfair to those
who were not able to pay the price. To remedy this injustice, the Bail Act of 1898
was enacted. The preamble recites that accused persons were sometimes kept in
prison for a long time because of their inability to find sureties, although there
was no risk of their absconding or other reason why they should not be bailed.
The Act then provided that ‘[w]here a justice has power . . . to admit to bail for
appearance, he may dispense with sureties, if, in his opinion, the so dispensing
will not tend to defeat the ends of justice.’66
In addition, England and other common law countries created laws to solidify their rules
designed to keep commercial sureties out of the criminal justice system. According to author
F.E. Devine,
[D]uring the same period . . . courts in England, India, Ireland, and New Zealand
had variously held agreements to indemnify bail sureties to constitute illegal
contracts, and the likelihood of indemnification to be grounds to reject sureties
and even to deny bail. They had also established that payment of any amount on
behalf of the accused to a surety constituted partial indemnification. Thus any
commercial development was effectively precluded. Agreement for any payment
constituted an illegal contract, unenforceable in the courts, and suspicion of any
payment was reason to reject the surety and sometimes to deny the bail.
Eventually these become crimes.67
America, on the other hand, chose a different solution to the problem of unnecessary detention
of bailable defendants for lack of sureties. For varying reasons throughout the nineteenth

Quinn]; see also Wayne H. Thomas, Jr., Bail Reform in America, at 11-12 (Univ. CA Press 1976); Freed & Wald,
supra note 58, at 2-3. 65 See Carbone, supra note 16, at 534-35; Tobolowsky and Quinn, supra note 64, at 274 n. 38. 66 Meyer, supra note 18, at 1159 (quoting the Bail Act of 1898, 61 & 62 Vic., c. 7 (1898)) (internal footnote
omitted).
67 Devine, supra note 40, at 6-7.
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century, American courts began eroding historic rules against profiting from bail and
indemnifying sureties, slowly ushering in the commercial bail bonding business at the end of
the century.68 By 1898, the first commercial bail bonding company opened for business, and by
1912, the U.S. Supreme Court had announced in Leary v. United States that “the distinction
between bail and [personal suretyship] is pretty nearly forgotten. The interest to produce the
body of the principal in court is impersonal and wholly pecuniary.”69
The differences in solutions between America and these other countries are significant, and
illustrate an even more fundamental departure from the historic personal surety system. In
England and nearly everywhere else, allowing judges to dispense with sureties allowed courts
to continue releasing defendants without requiring any security paid or promised up-front.70 In
America, however, the introduction of commercial bail bondsmen virtually assured the
continued unnecessary detention of bailable defendants because even though bondsmen
would provide a promise to pay the full amount of the financial condition upon a defendant’s
failure to appear, the bondsmen themselves would charge up-front fees and later require
collateral for their services. The bondsmen chose defendants for their ability to pay these fees
and offer collateral, and those who could not do so typically stayed in jail.71
Worldwide, America and the Philippines stand alone in their decision to introduce profit into
pretrial release. As author Divine observed, except for those two countries, “the rest of the
common law heritage countries not only reject [bail for profit], but many take steps to defend
against its emergence. Whether they employ criminal or only civil remedies to obstruct its
68 See generally James V. Hayes, Contracts to Indemnify Bail in Criminal Cases, 6 Fordham L. Rev. 387 (1937)
[hereinafter Hayes]. This article describes the slow evolution from America’s use of unsecured bonds administered
through a personal surety system to its use of secured bonds administered through a commercial surety system
primarily by courts questioning and eventually rejecting the historic policy against indemnifying sureties.
69 Leary v. United States, 224 U.S. 567, 575 (1912). 70 In their 1964 study, Freed and Wald observed that, “In England today, the bail surety relationship continues to
be a personal one. At the same time, the discretionary nature of bail is sufficiently flexible to permit denial in cases
where the magistrate believes that the defendant is likely to tamper with the evidence or commit new offenses if
released.” Freed & Wald, supra note 58, at 2. 71 Research documenting the negative effects of the for-profit bail system (including effects on victims, taxpayers,
and criminal justice system employees in addition to defendants and their families) date back to the 1920s and are
too numerous to list here. An overview of some of those effects is found in the American Bar Association’s
Standards for Criminal Justice on Pretrial Release (3rd Ed. 2007). Recent publications highlighting the negative
aspects of the traditional money bail system include a three-part series from the Justice Policy Institute: Melissa
Neal, Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail; Spike Bradford, For Better or For
Profit: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pretrial Justice; Jean Chung, Bailing on
Baltimore: Voices from the Front Lines of the Justice System (2012) found at
http://www.justicepolicy.org/research/4459, and in the following document authored by the Pretrial Justice
Institute and the MacArthur Foundation: Rational and Transparent Bail Decision Making; Moving From a CashBased to a Risk-Based Process (2012) at http://www.pretrial.org/download/pjireports/Rational%20and%20Transparent%20Bail%20Decision%20Making.pdf.
27 | Page
development, the underlying view is the same. Bail that is compensated in whole or in part is
seen as perverting the course of justice.”72
Accordingly, starting in the twentieth century, the historical thread toward using secured bonds
administered through a commercial surety system directly collided with the historical thread
creating and nurturing a “bail/no bail” dichotomy in which bailable defendants were expected
to be released and nonbailable defendants were expected to be detained. Instead of being a
solution to the problem of unnecessary detention of bailable defendants due to the lack of
sureties, the advent of commercial bail in America virtually guaranteed that the problem would
continue. Moreover, the reliance upon secured bonds proved also to interfere with the notion
of an optimal “no bail” side of the dichotomy; in addition to causing the unnecessary pretrial
detention of bailable defendants, the traditional money-based bail system tended to allow for
the release of persons who most would agree should be unbailable based on their risk to public
safety or for failure to appear for court. In sum, the traditional money-based bail system in
America has interfered with the historic notions of a “bail/no bail” system in which bailable
defendants are released and unbailable defendants are detained. The traditional money bail
system has little to do with actual risk, and expecting money to effectively mitigate risk,
especially risk to public safety, is historically unfounded.
As previously discussed, the history of bail reveals that any interference with the “bail/no bail”
dichotomy typically leads to reform. Unfortunately, however, the pace of twentieth century
reform in America has been slow. One of the reasons for that slow pace is due to our courts,
which, when confronted with the continued problem of bailable defendants being detained due
to secured money bonds, created an unfortunate line of cases that has enabled judges to avoid
making effective and immediately effectuated pretrial release and detention decisions.
The Unfortunate Line of Cases
That line of cases is well known and rarely questioned, but is actually a historical perversion of
the idea that bail should equal release. Although worded differently by different courts, it is
essentially the jurisprudential principle that bail is not excessive simply because the defendant
is unable to pay it.73 Bail scholars believe that this line of American decisions found its genesis
in a case decided in 1835.
72 Devine, supra note 40, at 201; See also Adam Liptak, Illegal Globally, Bail for Profit Remains in U.S., New York
Times (January 29, 2008), found at http://www.nytimes.com/2008/01/29/us/29bail.html?pagewanted=all&_r=0.
Bail bonding for profit is also illegal in several American jurisdictions, including Wisconsin, which in 2013 once
again rejected an attempt by commercial sureties to work in that state.
73 See United States v. McConnell, 842 F.2d 105 (1988) (“But a bail setting is not constitutionally excessive merely
because a defendant is financially unable to satisfy the requirement.”). Interestingly, the McConnell court
concluded the unattainable financial condition was not excessive despite language in the federal statute
articulating that, “The judicial officer may not impose a financial condition that results in the pretrial detention of
the person.” Relying on the legislative history of the federal law, however, the court wrote that while unattainable
conditions of release may lead to detention, they should also trigger higher scrutiny and procedural processes such
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That case, United States v. Lawrence, 74 requires at least minimal background. Because it did
not require up-front payments, the personal surety system in both England and America
functioned so that bail could be set despite an accused’s financial inability to pay. Indeed, as
late as 1820, “[l]ower bonds for the poor were considered to violate, not vindicate, the
principle of equal justice.”75 As the numbers of willing personal sureties declined in the 1800s,
however, and as jurisdictions began to consider the notion of expanding allowances for
defendants to self-pay, courts quickly realized that a defendant’s inability to pay had direct
relevance to the issue of detention. Thus, according to author June Carbone, it was Lawrence in
which a federal court provided “the first recognition that prohibitive bond for the poor might
be ‘excessive,’” when it commented on the dilemma posed by monetary conditions on persons
of limited means.76
In Lawrence, the bail-setting judge set a $1,000 financial condition for a defendant accused with
attempting to kill President Andrew Jackson, and recited the following: “to require larger bail
than the prisoner could give would be to require excessive bail and to deny bail in a case clearly
bailable by law.”77 When the government objected, however, the court increased the amount
to $1,500 and stated: “This sum, if the ability of the prisoner only were to be considered, is
probably too large; but if the atrocity of the offense were alone considered, might seem too
small.”78
The judge’s consideration of defendant Lawrence’s ability to pay his own financial condition
predated any formal federal declaration that the relevant statute did not require the giving of
common law bail – i.e., personal surety with no remuneration or indemnification. That
recognition came only after the Supreme Court’s decision in Leary v. United States, mentioned
previously, declaring that the personal surety system had given way to the commercial one.
According to author James Hayes, it was because of Leary that at least one federal appeals
court held eight years later that a federal judge had no right to refuse cash bail offered by a
prisoner under the federal statue.79 Nevertheless, because defendant Lawrence remained in
jail, the case became known as the first to stand for the proposition that inability to pay does

as those provided in the detention hearing. Despite its recognition of the need for a due process detention
hearing, however, it appears that the McConnell court did not remand for that hearing because arguments
concerning its absence were not raised on appeal. See id. n. 5 and accompanying text. 74 26 Fed. Cas. 887 (C.C. D.D. 1835) (No. 15,577). 75 Carbone, supra note 16, at 549. 76 Id. at 549; see also id. at 550. 77 Id. at 549 (quoting 26 F. Cas. 887 (C.C. D.C. 1835) (No. 15,557)). 78 Duker, supra note 17, at 90 (quoting 26 F. Cas. 887 (C.C. D.C. 1835) (No. 15,557)). 79 See Hayes, supra note 68, at 403 (citing Rowan v. Randolph, 268 Fed. 529 (C.C.A. 7th, 1920)). In Lawrence, the
judge mentioned the existence of “reputable friends” of the defendant, “who might be disposed to bail him,”
indicating, still, the existence of the personal surety system as the primary means of administering bail at that
time. Caleb Foote wrote that “[t]he opinion is ambiguous as to whether the 1,500 dollars was designed to make it
possible or impossible for Lawrence’s ‘reputable friends’ to bail him; in either event, the bail issue was soon
mooted when Lawrence was committed on the ground of insanity.” Foote, supra note 12, at 992.
29 | Page
not make a financial condition excessive per se.80 Later in the nineteenth century, states began
to counter this somewhat harsh outcome through legislative or judicial fiats requiring courts to
consider the pecuniary circumstances of the accused as a measure of the reasonableness of any
particular financial condition. This lessened the impact of the rule that monetary conditions
need not be attainable, but the rule remained nonetheless.
Courts frequently cite to the rule with no rationale. When they do, the most frequent rationale
is simply that the constitutional test for excessiveness is whether the condition provides
reasonable assurance of a lawful purpose (or, in other words, whether the condition is greater
than necessary to achieve a lawful purpose), not necessarily whether it is or is not attainable.81
“Reasonable assurance,” however, implies the requirement of some decently objective way of
determining whether the amount is unconstitutional, and, ironically it is likely attainability that
best provides that objective standard. Comparison of the amount of the financial condition,
which is largely arbitrary to begin with, to other largely arbitrary amounts associated with other
charges, or to the subjective notions of reasonableness of any particular judge, should not be
deemed to meet any objective test. Too often judges choose an amount of money, declare it to
be “reasonable assurance” without rationale, and then move to the next case. In his dissent in
Allen v. United States, Judge Bazelon complained of this practice when he gave the following
reason for why a district court bail decision to set a financial condition at $400 should not be
affirmed when the defendant argued that he could only afford to pay $200:
Nothing in the record supports the determination that a $400 deposit will insure
appellant’s appearance while a $200 deposit will not. Without such support, it
appears that he is being deprived of pretrial release solely because he cannot
raise the additional $200. This deprivation plainly violates both the letter and
basic purpose of the Bail Reform Act.82
80 See Carbone, supra note 16, at 549-51; Duker, supra note 17, at 90-92. 81 See, e.g., Galen v. County of Los Angeles, 468 F.3d 563, 572 (2006). Other rationales include the fact that the
various statutory factors do not include “financial condition of the defendant” or that the other factors outweigh
the financial condition factor. Occasionally, a court will explain that permitting defendants to be released simply
based on their lack of resources would place the defendants in control of the bail process. In 1965, Caleb Foote
reported on the “barren state of the case law” surrounding how to reconcile excessive bail in the case of an
indigent defendant. He noted the “circular reasoning” employed by current legal encyclopedias in attempting to
reflect the “unfortunate” state of the law in which, simultaneously, it was said that bail may not be set in a
prohibitory amount lest it deny one of the right to bail, but that setting an amount in a prohibitory amount was not
necessarily excessive. See Foote, supra note 12, at 992-94. 82 Allen v. United States, 386 F.2d 634 (D.C. Cir. 1967). There appear to be few, if any, good reasons for setting a
financial condition just beyond the reach of a defendant’s stated limits. When a judge knows the financial limit of
any particular defendant, and nonetheless sets a financial condition either much higher or even slightly above that
limit without some record adequately explaining the difference, appellate courts should presume that the
condition to release was set with an improper purpose to detain, which should lead to analysis for excessiveness
and denial of due process. Interestingly, both the federal and D.C. bail statutes have attempted to eliminate the
need for this line of cases by making it unlawful for a secured financial condition to result in the pretrial detention
of the accused.
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Putting aside the idea that a judge’s decision to set an amount with an intention to detain is
likely unconstitutional for lack of a proper purpose to limit pretrial freedom, the inability of any
particular judge to articulate why one amount is adequate while another amount, either higher
or lower, is not, is a hallmark of an arbitrary financial condition, and arbitrariness in the law is
rarely, if ever, reasonable. Moreover, as we will later see, pretrial research is beginning to show
that secured money amounts are not only arbitrary and unfair, but also that they might not
even further the constitutional purposes for which they are set; in those cases, the
reasonableness of any particular financial condition must similarly be questioned. Accordingly,
even if inability to post a financial condition is not a part of the test of excessiveness, a closer
look at “reasonable assurance,” which is a part of that test, requires us to radically rethink the
use of secured financial conditions at bail when doing so is arbitrary or irrational, and thus likely
unreasonable.
This line of cases, which sprung from necessity to address the dilemma of indigent defendants,
is unfortunate because it enables judges to set virtually any amount and declare that to be their
release “decision.” But setting a secured financial condition only creates an illusion of a
decision, for the actual posting of that amount is now left to others – indeed, it is often left to
chance – and a decision left to chance is no decision. This line of cases does not recognize that a
judge’s responsibility to decide matters before him or her is the essence of the judicial role in
America, and it thus encourages decisions that rely on random forces to attain the desired
result. Accordingly, the entire line of cases should be viewed as aberrations to the legal and
historic notions that bail should equal release, and that a decision to release should be
immediately effectuated.
In sum, the history of bail and the law that grew up around that history generally supports
judicial decision making that equates “bail” with release and “no bail” with detention, strongly
suggesting, if not necessitating, an in-or-out decision by judges in any particular case. If there
were any doubts about the continuation of this trend from England to America, those doubts
should have been erased by Stack, which emphasized release – i.e., the “bail” side of the
dichotomy – and Salerno, which emphasized detention – i.e., the “no bail” side. Indeed, it is
Salerno that provides the blueprint to properly effectuate the Stack ideal, in which those who
are given a right to bail are in fact released. It does this through its approval of the federal
preventive detention scheme, which itself is part of a statutory “bail/no-bail” or
“release/detain” system, and which is appropriately titled “Release and Detention Pending
Judicial Proceedings.”83 Understanding the federal statute’s in-or-out scheme, as approved by
the Supreme Court, is crucial to a full understanding of effective judicial decision making.
83 The current version is codified at 18 U.S.C. § § 3141-56. The District of Columbia bail statute is significantly
similar to the federal statute, and, like the federal statute, is often cited as a model release and detention
template.
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Chapter 3. “Bail” (Release) and “No Bail” (Detention)
Under the Federal Statute
Section 3141 of Title 18 U.S.C. provides that, “A judicial officer authorized to order the arrest of
a person . . . before whom an arrested person is brought shall order that such person be
released or detained, pending judicial proceedings, under this chapter.”84 This foundational
release or detain mandate is effectuated through Section 3142, which requires the judge to
order that the defendant be either: (1) released on personal recognizance or upon execution of
an unsecured appearance bond; (2) released on a condition or combination of conditions; (3)
temporarily detained to permit revocation of conditional release, deportation, or exclusion; or
(4) fully detained.85
On the “bail” side of the release or detain dichotomy, the statute creates a presumption of
release on personal recognizance or with an unsecured appearance bond unless the judge finds
that such release “will not reasonably assure the appearance of the person as required or will
endanger the safety of any other person or the community.”86 In that case, the statute requires
the judge to release the defendant on the conditions of not committing new crimes and
participating in DNA testing, and “subject to the least restrictive further condition, or
combination of conditions, that such judicial officer determines will reasonably assure the
appearance of the person as required and the safety of any other person and the
community.”87
The statute then lists various conditions available to the judge to mitigate the risk for failure to
appear or to public safety. Of the conditions listed, it is notable that the first condition is most
like the historic personal surety system based on continued custody
with a known and reputable person. That condition allows judges to order the defendant to:
[R]emain in the custody of a designated person, who agrees to assume
supervision and to report any violation of a release condition to the court, if the
designated person is able reasonably to assure the judicial officer that the
84 18 U.S.C. § 3141 (a). This mandate to either release or detain any given defendant is superior to many state
statutes, which do not contain such explicit requirements, and which lead to complacency over the puzzling but alltoo-common situations in which defendants are ordered released and yet remain detained. 85 Id. § 3142 (a). 86 Id. § 3142 (b), (c) (1). 87 Id. §3142 (c) (1) (A), (B). The notion of least restrictive conditions is fundamental to an in-or-out decision and an
overall presumption of release. See ABA Standards, supra note 6, Std. 10-1.2 (commentary) at 39-40.
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person will appear as required and will not pose a danger to the safety of any
other person or the community.88
It is equally notable that two of the last conditions listed in the statute deal with money, the
second being a bail bond with solvent sureties. It is widely accepted by all but the for-profit bail
industry that secured financial conditions, including so-called “surety bonds,” are typically the
most restrictive conditions at bail, and thus the statutory placement and order of the conditions
themselves indicates further a federal preference to consider secured financial conditions last,
in addition to its explicit preference for release on personal recognizance and unsecured
appearance bonds.89
Perhaps the most significant provision concerning release in the federal statute, however, is
found in Section 3142 (c) (2), which states, “The judicial officer may not impose a financial
condition that results in the pretrial detention of the person.”90 This language is critical for
assuring that secured money, as typically the only condition precedent to release,91 does not
cause unnecessary pretrial detention, or any detention whatsoever, without the sort of
procedural due process safeguards approved by the Supreme Court in United States v. Salerno.
Those safeguards, as articulated in the Salerno opinion, are incorporated into the “no bail” side
of the “release/detain” dichotomy of the federal statute.92 Section 3142 (e) provides that, “If,
after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer
finds that no condition or combination of conditions will reasonably assure the appearance of
the person as required and the safety of any other person and the community, such judicial
officer shall order the detention of the person before trial.”93 This early articulation of a
gateway finding that “no conditions or combination of conditions” suffice for release is
significant, as it guides judges toward thinking about the tools enabling those judges to release
defendants before considering detention.
88 18 U.S.C § 3142 (c) (1) (B) (i). 89 The Bail Reform Act of 1966 mandated least restrictive conditions through a more explicit preferential order of
conditions by requiring judicial officials to “impose the first of the following conditions of release” (emphasis
added). That list started with personal supervision and ended with money and a catchall provision. See Bail Reform
Act of 1966, Pub. L. 89-465, 80 Stat, 214 (1966). The ABA Standards have retained the “first of the following”
language when recommending options for release on financial conditions. See ABA Standards, supra note 6, Std.
10-5.3, at 110. 90 18 U.S.C. § 3142 (c) (2). The District of Columbia statute’s similar provision, which was implemented in 1992 in
the form of a mandate, was “critical to the success of the eradication of money in the District of Columbia.” See
Remarks of Susan Weld Shaffer, National Symposium on Pretrial Justice: Summary Report of Proceedings, at 35
(BJA/PJI May 23, 2011) [hereinafter National Symposium Report].
91 As noted previously, secured money at bail is typically the only condition that must be met prior to release, and
is the condition that typically causes unnecessary pretrial detention of bailable defendants. Although other
conditions sometimes require money to administer, many pretrial services programs across America have created
ways for indigent defendants to remain free even when they cannot pay all of the administrative costs for certain
“non-financial” conditions, such as pretrial services supervision, drug and alcohol testing, and GPS monitoring. 92 The federal statute also has temporary detention provisions, which are unnecessary to discuss here. 93 18 U.S.C. § 3142 (e) (1).
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The rest of the federal detention provisions create a process that provides a relatively broad
gateway based on offenses and risk and uses rebuttable presumptions toward detention for
certain preconditions, but incorporates procedural safeguards designed to then limit detention
to only those defendants who cannot be adequately supervised in the community. In Salerno,
the United States Supreme Court summarized those statutory safeguards as follows:
[The statute] operates only on individuals who have been arrested for a specific
category of extremely serious offenses. Congress specifically found that these
individuals are far more likely to be responsible for dangerous acts in the
community after arrest. Nor is the Act by any means a scattershot attempt to
incapacitate those who are merely suspected of these serious crimes. The
Government must first of all demonstrate probable cause to believe that the
charged crime has been committed by the arrestee, but that is not enough. In a
full-blown adversary hearing, the Government must convince a neutral
decisionmaker by clear and convincing evidence that no conditions of release
can reasonably assure the safety of the community or any person.94
The Court also commented favorably on the detention hearing itself, in which it found relevant
that the defendant could request counsel, could testify and present witnesses or even proffer
evidence, and could cross-examine any adverse witnesses. Moreover, the Court noted, the
judges setting bail were required to follow certain statutory criteria in making their decisions
and to articulate their reasons for detention in writing. Finally, the decision to detain was, and
still is, immediately appealable.95
94 United States v. Salerno, 481 U.S. 739, 750 (1987) (internal citations omitted). Despite these safeguards, there
are some who argue, often convincingly, that the detention rates in some federal courts have nonetheless grown
to unacceptable levels.
95 See id. at 742-43; 18 U.S.C. § 3145.
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Chapter 4. The National Standards on Pretrial Release
In 1968, the American Bar Association combined the law, the history of bail, and the existing
pretrial research to create its first edition of Standards Relating to Pretrial Release,96 which
contained specific recommendations on virtually every criminal pretrial issue and was designed
to help decision makers lawfully and effectively administer bail. The second edition standards,
approved in 1979, were written, in part, “to assess the first edition in terms of the feedback
from such experiments as pretrial release projects . . . and similar developments that had been
initiated largely as a result of the influence of the first edition.”97 The second edition was
revised in 1985, “primarily to establish criteria and procedures for preventive detention in
limited category of cases.”98Among other things, the most recent edition, completed in 2002
and published in 2007, includes discussion of public safety in addition to court appearance as a
valid constitutional purpose for limiting pretrial freedom, and addresses pretrial release and
detention in the wake of the United States Supreme Court’s opinion in United States v. Salerno,
which upheld the federal detention scheme against facial due process and Eighth Amendment
claims.99
Overall, the current Standards make clear that the decision to release or detain is just that – an
in-or-out or “bail/no bail” decision – that is expected to be effectuated at the time the decision
is made. The Standards do this primarily by recommending a drastic reduction in the use of
money at bail.
The Standards consider the judicial decision to release or detain a defendant pretrial to be a
“crucial” decision, albeit complicated by the need to “strike an appropriate balance” between
competing societal interests of individual liberty, public safety, and court appearance.100
Indeed, this is the fundamental complexity of bail, which requires judges to simultaneously
maximize release, court appearance, and public safety. Nevertheless, this is also why bail is
inherently a judicial function. Some entities, such as for-profit bail bondsmen or bail insurance
companies, may show concern only for court appearance, even to the point of incorrectly
stating that court appearance is the sole function of bail. Other criminal justice actors rightfully
focus on public safety as a primary goal in striking the balance, just as defenders might
emphasize liberty. Judges, however, are the only criminal justice actors who are required to
96 American Bar Association Project on Standards for Criminal Justice, Standards Relating to Pretrial Release –
Approved Draft, 1968 (New York: American Bar Association, 1968). 97 Martin Marcus, The Making of the ABA Criminal Justice Standards, Forty Years of Excellence, 23 Crim. Just. 2-3
(2009). This article also illustrates the ABA Standards as important sources of authority by courts (including the
United States Supreme Court and numerous state supreme courts) and legislatures across the country.
98 ABA Standards, supra note 6, at 30 n. 3. 99 Id. passim. 100 See id., Introduction, at 29-30. The Standards reflect a similar balance in their statement of the purpose of the
release decision, which includes providing due process, avoiding flight, and protecting the public. See id, Std. 10-
1.1 at 36.
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make decisions (and, indeed, have those decisions reviewed for error) that incorporate all three
goals of bail decision making – individual liberty, public safety, and court appearance.
Nevertheless, the Standards recognize that striking this balance is made most difficult when
money is involved. Indeed, the Standards stress that “the problems with the traditional surety
bail system undermine the integrity of the criminal justice system and are ineffective in
achieving key objectives of the release/detention decision.”101 Even in the most recent edition,
the Standards quote with approval the introduction to the 1968 version, which read as follows:
The bail system as it now generally exists is unsatisfactory from either the
public’s or the defendant’s point of view. Its very nature requires the practically
impossible task of transmitting risk of flight into dollars and cents and even its
basic premise – that risk of financial loss is necessary to prevent defendants from
fleeing prosecution – is itself of doubtful validity. The requirement that virtually
every defendant must post [financial conditions of] bail causes discrimination
against defendants and imposes personal hardship on them, their families, and
on the public which must bear the cost of their detention and frequently support
their dependents on welfare. Moreover, bail is generally set in such a routinely
haphazard fashion that what should be an informed, individualized decision is in
fact a largely mechanical one in which the name of the charge, rather than the
facts about the defendant, dictates the amount of bail.102
According to the Standards, the high stakes to the defendant and the community are best
reflected in the two kinds of mistakes that can be made at bail: “a defendant who could safely
be released may be detained or a defendant who requires confinement may be released.”103
And thus, the Standards are designed to meet two interrelated needs: “the need to foster safe
pretrial release of defendants whenever possible, and the need to provide for pretrial
detention of those who cannot be safely released.”104 It is a “release/detain” scheme,
effectuated rightfully by judges making in-or-out decisions.
The ABA Standards emphasize in commentary the importance of the in-or-out decision by
articulating foundational principles upon which the relevant recommendations are made. The
Standards summarize these principles as follows:
[T]hese Standards view the decision to release or detain as one that should be
made in an open, informed, and accountable fashion, beginning with a
presumption (which can be rebutted) that the defendant should be released on
personal recognizance pending trial. The decision-making process should have
101 Id., Introduction, at 30. 102 Id. at 31 (quoting American Bar Association Project on Standards for Criminal Justice, Standards Relating to
Pretrial Release – Approved Draft, 1967 (New York: American Bar Association, 1968), at 1. 103 Id. at 35. 104 Id. at 33.
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defined goals, clear criteria, adequate and reliable information, and fair
procedures. When conditional release is appropriate, the conditions should be
tailored to the types of risks that a defendant poses, as ascertained through the
best feasible risk assessment methods. A decision to detain should be made only
upon a clear showing of evidence that the defendant poses a danger to public
safety or a risk of non-appearance that requires secure detention. Pretrial
incarceration should not be brought about indirectly though the covert device of
monetary bail.
The strong presumption in favor of pretrial release is tied, in a philosophical if
not a technical sense, to the presumption of innocence. It also reflects a view
that any unnecessary detention is costly to both the individual and the
community, and should be minimized. However, the Standards make it clear that
under certain circumstances the presumption of release can be overcome by
showing that no conditions of release can appropriately and reasonably assure
attendance in court or protect the safety of victims, witnesses, or the general
public.105
In this recommended release and detention model, the Standards emphasize the fundamental
legal principle of release on “least restrictive conditions,” which, as illustrated in the above
quotation, translates first into an explicit recommendation that judges adopt a presumption of
release on recognizance. That presumption may be rebutted by evidence that there is: (1) a
substantial risk of nonappearance or the need for additional release conditions; or (2) evidence
that the defendant should be detained through an open and transparent detention process or
on conditions while awaiting diversion or some other alternative adjudication program.106
Overall, the Standards create a recommended scheme in which the decision to release is
effectuated through the use of least restrictive conditions, and the decision to detain is
effectuated through a transparent detention process designed to work when no condition or
combination of conditions suffice to reasonably assure court appearance or public safety. The
Standards’ underlying premise is that a defendant’s perceived risk of nonappearance or public
safety can typically be addressed after release through conditions that are designed to
reasonably mitigate that risk.
The crux of the presumption of release under least restrictive conditions, however, as well as
the notion that judges should make the final in-or-out decision for any particular defendant, is
found in the Standards’ recommendations dealing specifically with financial conditions.
Commentary to the ABA Standards’ general recommendation dealing with release on
conditions states that, “Financial conditions . . . are to be imposed only to ensure court
appearance and under the limits described more fully in Standard 10-5.3. The amount of bond
105 Id. at 35-36. 106 See id., Std. 10-5.1 at 1; see also id., Stds. 10-5.8, 5.9, 5.10 (grounds, eligibility, and procedures for pre-trial
detention), at 124-38.
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should take into account the assets of the defendant and financial conditions imposed by the
court should not exceed the ability of the defendant to pay.”107
Standard 10-5.3, in turn, is specifically designed to effectuate a foundational premise “that
courts . . . should make the actual decision about detention or release from custody.”108 Thus,
while the Standards allow the use of secured financial conditions, they “greatly restrict”109 their
use through Standard 10-5.3, which is quoted here in full:
Standard 10-5.3 Release on financial conditions
a) Financial conditions other than unsecured bond should be imposed only
when no other less restrictive condition of release will reasonably ensure the
defendant’s appearance in court. The judicial officer should not impose a
financial condition that results in the pretrial detention of the defendant
solely due to an inability to pay.
b) Financial conditions of release should not be set to prevent future criminal
conduct during the pretrial period or to protect the safety of the community
or any person.
c) Financial conditions should not be set to punish or frighten the defendant or
to placate public opinion.
d) On finding that a financial condition of release should be set, the judicial
officer should require the first of the following alternatives thought sufficient
to provide reasonable assurance of the defendant’s reappearance: (i) the
execution of an unsecured bond in an amount specified by the judicial
officer, either signed by other persons or not; (ii) the execution of an
unsecured bond in an amount specified by the judicial officer, accompanied
by the deposit of cash or securities equal to ten percent of the face amount
of the bond. The full deposit should be returned at the conclusion of the
proceedings, provided the defendant has not defaulted in the performance
of the conditions of the bond; or (iii) the execution of a bond secured by the
deposit of the full amount in cash or other property or by the obligation of
qualified, uncompensated sureties.
e) Financial conditions should be the result of an individualized decision taking
into account the special circumstances of each defendant, the defendant’s
ability to meet the financial conditions and the defendant’s flight risk, and
should never be set by reference to a predetermined schedule of amounts
fixed according to’ the nature of the charge.
107 Id., Std. 10-5.2 (commentary) at 109. 108 Id., Std. 10-5.3 (commentary) at 111. 109 Id., Std. 10-1.4 (commentary) at 43.
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f) Financial conditions should be distinguished from the practice of allowing a
defendant charged with a traffic or other minor offense to post a sum of
money to be forfeited in lieu of any court appearance. This is in the nature of
a stipulated fine and, where permitted, may be employed according to a
predetermined schedule.
g) In appropriate circumstances, when the judicial officer is satisfied that such
an arrangement will ensure the appearance of the defendant, third parties
should be permitted to fulfill these financial conditions.110
In 1965, Professor Caleb Foote called the central problem of a money-based bail system
administered to mostly poor defendants an insoluble “riddle.”111 In 2007, however, author
John Clark correctly wrote that solving the riddle is now within our grasp simply by following
the ABA Standards, and especially Standard 10-5.3, quoted above. Indeed, Clark wrote,
changing judicial decision making to reduce reliance on money bail is essential to effectuating
an in-or-out decision that is the essence of good government:
While such cherished concepts as equal justice and due process should always
be stressed, the public also needs to understand the implications for society of a
system that relies on money bail. When a judicial officer sets a money bail, the
outcome of whether the defendant is released or held is out of the hands of that
judicial officer. It is then left to the defendant, his or her family, or any of the bail
bondsmen working in the community to determine if the defendant stays in jail
or goes home.
From a public policy perspective, this flies in the face of good government,
because the result is that public officials have little control over the use of one of
the most expensive and limited resources in any community – a jail bed.112
110 Id. Std. 10-5.3 at 17-18; 110-111. 111 National Conference on Bail and Criminal Justice, Proceedings and Interim Report at 226-27 (Washington, D.C.
Apr. 1965).
112 John Clark, Solving the Riddle of the Indigent Defendant in the Bail System, Trial Briefs (Oct. 2007) at 34.
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Chapter 5. Effective Pretrial Decision Making
If the history of bail and the law support a “bail/no bail” decision, and if the national best
practice standards similarly recommend and justify through the law and research a
“release/detain” or in-or-out decision, a decision through which virtually all bailable defendants
are immediately released, and unbailable defendants are detained through a fair and
transparent process of detention, then why do judges persist in setting secured financial
conditions, the only condition known to significantly interfere with this decision-making
process? Like dealing with indigent defendants, it is a riddle more complicated than it appears.
Indeed, as recently as 2010 a single jurisdiction reported the difficulty in changing judicial
decision making to better support legal and evidence-based practices at bail as reflected in the
ABA Standards.
That year, judges in Jefferson County, Colorado, decided to spend 14 weeks setting bail by
following, in the main, the ABA’s National Standards on Pretrial Release as well as specific local
recommendations for making judicial decisions that paralleled those Standards.113 A report
filed after the project showed progress toward adherence to certain best practices, but also
showed “much room to improve” because, even despite trying to follow the ABA Standards,
judges still insisted on: (1) using commercial sureties; (2) using money to protect the public; (3)
avoiding release on unsecured bonds for a myriad of customary, albeit illogical or arbitrary
reasons; and (4) setting secured financial conditions without any recorded rationale indicating
that the judge considered the defendants’ ability to meet them.114 The study is significant for
many reasons, but the fundamental point for purposes of this paper is that these judges were
trying faithfully to follow the Standards during the study period, and yet, in many cases they
still could or would not. Later studies of the same jurisdiction showed that despite the ABA’s
recommendation to use money only as a last resort due to its inequality and tendency to detain
otherwise bailable defendants, the judges in Jefferson County were still considering money
first, and still setting unattainable secured financial conditions resulting in defendants who
were ordered released but who remained detained.
This is the historical dilemma concerning the Standards; despite their reputation as bestpractice recommendations, courts have had difficulty in actually implementing them –
especially those parts of the Standards that seek to reduce reliance on money at bail. Until
recently, there was perhaps no answer to this dilemma. But that is beginning to change due to
113 Many of the local recommendations were reflected in a Chief Judge Order creating the 14 week study. A
general overview of the Jefferson County Bail Project may be found in the document presented at the National
Symposium of Pretrial Justice. See Timothy R. Schnacke, Michael R. Jones, Claire M.B. Brooker, and Hon. Margie
Enquist, The Jefferson County Bail Project: Project Summary Presented to the Attorney General’s National
Symposium on Pretrial Justice (May 23, 2011) found at
http://www.pretrial.org/download/research/The%20Jefferson%20County%20CO%20Bail%20Project%20Summary
%20May%202011.pdf. 114 See The Jefferson County Bail Impact Study: Initial Report on Process Data for the System Performance
Subcommittee (July 23, 2010), available from Jefferson County public records or through the author.
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the current direction in pretrial research. While pretrial research has proceeded down a variety
of substantive paths throughout the twentieth and into the twenty-first centuries, the research
being conducted during this third generation of bail reform115 is most relevant to helping
judges make decisions to release or detain that are immediately effectuated and not contingent
upon any other person or entity. That relevance comes from the research: (1) showing judges
the negative effects of not making a “bail/no bail” or in-or-out decision; and (2) showing judges
how to make a more effective “bail/no bail” or in-or-out decision so as to avoid those negative
effects.
The Negative Effects of Not Making an Immediately Effectuated In-or-Out
Decision
Research over the last several decades has consistently shown that compared to defendants
released pretrial, defendants detained during the entirety of their pretrial phase fare
considerably worse. Overall, “the research shows that defendants detained in jail while
awaiting trial plead guilty more often, are convicted more often, are sentenced to prison more
often, and receive harsher prison sentences than those who are released during the pretrial
period. These relationships hold true when controlling for other factors, such as current charge,
prior criminal history, and community ties.”116
Most recently and more specifically, the Laura and John Arnold Foundation funded significant
research examining a large, multi-state data set and ultimately showing that, controlling for all
other relevant factors, defendants detained for their entire pretrial period are over four times
more likely to be sentenced to jail and over three times more likely to be sentenced to prison
(and for longer periods in both cases) than defendants released at some point, and the results
were even more pronounced for low risk defendants.117 This is powerful new research, but only
confirms what judges and others have presumably known for decades about the outcomes for
defendants confined for their entire pretrial period.
More important, then, is additional Arnold Foundation research that is beginning to determine
the public safety costs of keeping defendants in jail for even short periods of time. In a separate
study, though again with a large data set, researchers found “strong correlations between the
115 Professor John Goldkamp first categorized twentieth century efforts at American pretrial reform in terms of
“generations.” See John S. Goldkamp, Judicial Responsibility for Pretrial Release Decisionmaking and the
Information Role of Pretrial Services, 57 Fed. Probation 28, 34 n.3 (1993). For a brief description of the third
generation, see Timothy R. Schnacke, Claire M.B. Brooker, and Michael R. Jones, The Third Generation of Bail
Reform, D.U. Law Rev. Online (Mar. 14, 2011), found at http://www.denverlawreview.org/onlinearticles/2011/3/14/the-third-generation-of-bail-reform.html. 116 Rational and Transparent Bail Decision Making: Moving From a Cash-Based to a Risk-Based Process, at 2
(PJI/MacArthur Found. 2012).
117 Christopher Lowenkamp, Marie VanNostrand, & Alexander Holsinger, Investigating the Impact of Pretrial
Detention on Sentencing Outcomes (LJAF 2013).
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length of time low- and moderate-risk defendants were detained before trial, and the likelihood
that they would reoffend in both the short- and long-term.”118 Specifically, the researchers
found that when compared to defendants held no more than 24 hours, low risk defendants
who were held for two to three days were 40% more likely to commit new crimes before trial
and 22% more likely to fail to appear, and if held for 31 days or more were 74% more likely to
commit new crimes pretrial and 31% more likely to fail to appear. Moderate risk defendants
showed the same correlations, albeit at different rates. Moreover, the researchers found, low
risk defendants held two to three days were more likely to commit a new crime within two
years, and defendants held for eight to fourteen days were 51% more likely to recidivate longterm than defendants detained less than 24 hours.119 Interestingly, for high risk defendants
there was no relationship between pretrial detention and increased crime, “suggest[ing] that
high-risk defendants can be detained before trail without compromising, and in fact enhancing,
public safety and the fair administration of justice.”120
Pretrial detention has always had costs (including jail bed costs, public welfare costs, such as for
lost jobs or for money needed to support defendant families, and other, difficult to quantify
social costs, such as denying the defendant the ability to help with his or her defense), but this
research illuminates costs going to the very function of bail itself. Since we have known for
some time that secured money bonds lead to detention – keeping some defendants in jail for
the duration of their pretrial period and keeping some in for shorter periods of time until they
can gather the money necessary for release121 – this new research shows how a judge’s
decision to set a secured bond can actually lead to increased danger to public safety both in the
short- and long-term. Concomitantly, because detaining high risk defendants does not lead to
the same bad outcomes shown for low and moderate risk defendants, the research shows the
importance of (1) determining defendants’ risk; and (2) doing everything possible to make clear
in-or-out decisions so that low to moderate risk defendants are released as quickly as possible
and the highest risk defendants are detained.
Research Helping Judges to Avoid the Negative Effects
An in-or-out bail decision can be best effectuated using the other strand of pretrial research,
which is a two-part strand that seeks to help judges make an effective “release/detain”
determination. The first part of this strand is found in research developing empirical pretrial risk
assessment instruments. The second part is found in the research dedicated to assessing
118 Pretrial Criminal Justice Research at 2 (LJAF 2013) found at http://www.arnoldfoundation.org/wpcontent/uploads/2014/02/LJAF-Pretrial-CJ-Research-brief_FNL.pdf. 119 See Christopher Lowenkamp, Marie VanNostrand, & Alexander Holsinger, The Hidden Costs of Pretrial
Detention (LJAF 2013). 120 Pretrial Criminal Justice Research, supra note 118 at 4. 121 See Thomas H. Cohen & Brian A. Reaves, Pretrial Release of Felony Defendants in State Courts (BJS 2007)
[hereinafter Cohen & Reaves]; see also Michael R. Jones, Unsecured Bonds: The As Effective and Most Efficient
Pretrial Release Option (PJI 2013).
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whether certain conditions of bail or limitations on pretrial freedom are effective in furthering
the various purposes underlying the bail process.
Part One – Risk Assessment Instruments
The majority of the most recent risk assessment instrument research is too new to be included
in the ABA Standards. The Standards mention various attempts to assess predictors of pretrial
performance, even going back to the 1920s, and over the years single jurisdictions, such as
counties, have occasionally created risk instruments using generally accepted social science
research methods, but their limited geographic influence and sometimes their lack of data from
which to test multiple variables meant that research in this area spread slowly. That changed
significantly in 2003, when the first multijurisdictional instrument, the Virginia Pretrial Risk
Assessment Instrument,122 was developed, only one year after the last edition of the Standards
was approved.123 Since then, other multi-jurisdictional risk instruments have been developed,
including in Kentucky, Ohio, Colorado, Florida, and the federal system, and now other American
jurisdictions, including single cities and counties, are working on similar instruments or
borrowing other instruments while validating them to their own populations. As recently as
2013, the Laura and John Arnold Foundation developed a risk instrument created with enough
cases to be generalizable across the United States.124
The Pretrial Justice Institute describes a pretrial risk assessment instrument as follows:
A pretrial risk assessment instrument is typically a one-page summary of the
characteristics of an individual that presents a score corresponding to his or her
likelihood to fail to appear in court or be rearrested prior to the completion of
their current case.
* * *
Responses to the questions are weighted, based on data that shows how
strongly each item is related to the risk of flight or rearrest during pretrial
release. Then the answers are tallied to produce an overall risk score or level,
122 See Marie VanNostrand, Assessing Risk Among Pretrial Defendants In Virginia: The Virginia Pretrial Risk
Assessment Instrument (Va. Dept. Crim. Just. Servs. 2003). 123 The Standards nonetheless cite to Dr. VanNostrand’s Virginia study as the latest in a long line of studies
designed to empirically identify predictors of defendant pretrial performance. See ABA Standards, supra note 6, at
57 n. 22. 124 See Developing a National Model for Pretrial Risk Assessment (LJAF 2013) found at
http://arnoldfoundation.org/sites/default/files/pdf/LJAF-research-summary_PSA-Court_4_1.pdf.
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which can inform the judge or other decisionmaker about the best course of
action.125
The creation and dissemination of these types of instruments across the country are part of the
critical infrastructure judges need to set bail in a legal and evidence-based manner, which
includes making an in-or-out decision that is immediately effectuated.
Stated simply, we know that out of every one hundred released defendants, some number of
them will fail to appear for court or commit some new offense after being released. This has
been true throughout history, and will continue to be true for as long as we allow pretrial
release because human behavior cannot be completely predicted, and even someone whom we
consider the lowest possible risk is still risky nonetheless. Moreover, we cannot avoid pretrial
release, for the American system of criminal justice demands it, and, in fact, demands it in such
a way that “liberty is the norm.”126 A judge’s job, then, is to attempt to predict who these
pretrial failures likely will be, recognizing that he or she will never predict them all. In the past,
judges were given their discretion and a number of somewhat intuitive statutory factors to
make this prediction, but these factors may or may not have been actually predictive of pretrial
success or failure, and they certainly were not weighted to tell those judges which factors were
statistically more predictive than others. In the past, then, judges would often make decisions
that may have been no better (and perhaps sometimes worse) than flipping a coin.
With the advent of the newest versions of statistical pretrial risk instruments that test the
interrelated predictability of numerous variables, however, research has added an
indispensable tool to allow any particular judge to do his or her job of trying to predict the
inevitable failures. And while complete predictability will never be attained, a pretrial risk
assessment tool nevertheless allows a judge to say, for example, “This defendant is scored as
‘low risk’ or ‘category one,’ and accordingly I know that his performance should look like that of
other defendants in the past who have been scored the same, which means that he likely has a
95% chance of showing up for court and a 91% chance of not committing a new crime.” This is
not absolute assurance, but absolute assurance is not required by the law. Instead, the law
requires us to embrace risk so that release is the norm, and then to mitigate that risk only to
the level of reasonable assurance. Pretrial risk assessment instruments are tools that allow
judges to both embrace and mitigate risk.
Part Two – Assessing Which Conditions are Effective for Their Lawful Purposes
The second part of the strand of research that helps judges make better “release/detain”
decisions is the part that looks into which conditions of release, or limitations on pretrial
125 Pretrial Risk Assessment 101: Science Provides Guidance on Managing Defendants (PJI/BJA 2012), found at
http://nicic.gov/library/027577. 126 United States v. Salerno, 481 U.S. 739, 755 (1987).
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freedom, are the most successful for achieving the various purposes of the bail decision-making
process.
Researchers, bail historians, and even the National Judicial College state that the purpose of an
effective bail decision is to maximize release while maximizing public safety and court
appearance.
127 The ABA Standards state that the purposes of the release decision “include
providing due process to those accused of crime [e.g., protecting one’s liberty interest],
maintaining the integrity of the judicial process by securing defendants for trial, and protecting
victims, witnesses, and the community from threats, danger or interference.”128 The similarity
of these two statements of purpose is not surprising; the history of bail and the law intertwined
with that history demonstrate that the primary purpose of bail is to provide a mechanism of
release or pretrial freedom, and that the purposes for limitations on that freedom are to
further court appearance and public safety. Release, court appearance, and public safety are
the three interrelated interests that must be balanced, whether one looks at the
“effectiveness” or the “lawfulness” of any particular pretrial decision. Therefore, research that
demonstrates how to maintain high release rates while maintaining high court appearance and
public safety rates is superior to research that does not address all three.
Accordingly, the test today is whether any particular pretrial research helps judges to make an
in-or-out decision so as to avoid the negative effects of pretrial detention (i.e., maximizing
release, and, if possible, maximizing immediate release) that also maintains high court
127 Researchers have previously articulated a purpose of bail to include maximizing release in varying ways. See
Stevens H. Clarke, Pretrial Release: Concepts, Issues, and Strategies for Improvements, 1 Research In Corrections 3
(NIC 1988) (“Pretrial Release Policy in the American criminal justice system has two goals: (1) to allow pretrial
release whenever possible and thus avoid jailing a defendant during the period between his arrest and court
disposition, and (2) to control the risk of failure to appear and of new crimes released by defendants.”); John
Goldkamp, Judicial Responsibility for Pretrial Release Decisionmaking and the Information Role of Pretrial Services,
57 Fed. Probation 1 (1993) (“Effective release may be most simply defined as decision practices that foster the
release of as many defendants as possible who do not fail to appear in court at required proceedings or commit
crimes during the pretrial period.”); John S. Goldkamp, Michael R. Gottfredson, Peter R. Jones, & Doris Weiland,
Personal Liberty and Community Safety: Pretrial Release in the Criminal Court (New York: Plenum Press 1995) (“An
effective pretrial release occurs when a defendant is released from jail, does not commit a new crime, and makes
all court appearances.”); John Clark, A Framework for Implementing Evidence-Based Practices in Pretrial Services,
Topics in Community Corrections 4 (2008) (“The goal of pretrial services is to maximize rates of pretrial release
while minimizing pretrial misconduct through the use of least restrictive conditions.”). Most recently, researchers
have hinted at a legal justification behind these statements favoring release beyond mere “effectiveness.” See
Kristin Bechtel, John Clark, Michael R. Jones, & David J. Levin, Dispelling the Myths: What Policy Makers Need to
Know about Pretrial Research 2 (PJI 2012) (“Judges, prosecutors, defense attorneys, law enforcement, jail officials,
victims’ advocates, pretrial services programs, researchers, grantors, foundations, and national professional
organizations have been working to determine the most legal, research-based, and cost-effective way to further
the purpose of bail: to maximize the release of defendants on the least restrictive conditions that reasonably
assure the safety of the public and defendants’ appearance in court.”). The ABA Standards articulate the “purposes
of the release/detention decision,” and not the purpose of bail itself, but state that “the law favors the release of
defendants pending adjudication of charges,” noting that the statement is “consistent with Supreme Court
opinions [i.e., Stack v. Boyle and United States v. Salerno] emphasizing the limited permissible scope of pretrial
detention.” ABA Standards, supra note 6, Std. 10-1.1 (commentary) at 37, 38. 128 ABA Standards, supra note 6, Std. 10-1.1, at 1, 36.
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appearance and public safety rates. In the 2011 document titled, State of the Science of Pretrial
Release Recommendations and Supervision,129 judges can read about the effectiveness of
various release conditions and supervision techniques, such as court date notifications, drug
testing, electronic monitoring, and pretrial supervision, which all have varying literatures
supporting their ability to achieve one or more of the interrelated purposes. Research in these
areas is ongoing. For example, as recently as late 2013 researchers studying pretrial supervision
found that “supervised defendants [especially moderate to high risk defendants] were
significantly more likely to appear for court” and that “[p]retrial supervision of more than 180
days may also decrease the likelihood of NCA [new criminal activity].”130 To the extent that
pretrial supervision helps judges to maximize release, then this study is an especially good one
because it provides useful information that furthers the threefold purpose of the bail process.
Nevertheless, non-financial conditions, like those mentioned above, rarely cause unnecessary
pretrial detention. Secured financial conditions, on the other hand, do cause unnecessary
pretrial detention because they are typically the only condition precedent to release. As noted
previously, the research has consistently shown what logic should suffice to tell us: secured
financial conditions cause detention, with higher amounts of money leading to higher detention
rates. Accordingly, what has been needed in the pretrial field is research that specifically
addresses money, and, more particularly, addresses how judges who still believe that they must
set financial conditions of bail can do so in ways that simultaneously maximize quick release,
public safety, and court appearance rates.
Generally speaking, the relevant research looking at money releases up to now has focused on
“bond types” or “release types” because historically bail bonds have been labeled or “typed”
based on their use of money. For example, a “surety bond” is a type of bond that is written
through and backed by a for-profit surety company. An “unsecured personal recognizance
bond” is a bond that requires no money up-front, but which requires the defendant to pay
some amount of money if he or she fails to appear for court. Creating and defining bond
“types” based on how they use a single condition of release – i.e., money – represents an
antiquated way of describing a process of release or detention, but because it is prevalent in
our current administration of bail, the relevant research typically discusses findings based on
types.
Moreover, generally speaking, the relevant research up to now has suffered from serious
drawbacks. As reported by Marie VanNostrand, et al. in 2011, “Nearly all state court research
conducted on a national level in an attempt to identify the most effective term of release
(release on own recognizance, unsecured bail, secured bail), has been completed using the
State Court Processing Statistics (SCPS) data.”131 Unfortunately, however, and as noted by the
129 Marie VanNostrand, Kenneth J. Rose, & Kimberly Weibrecht, State of the Science of Pretrial Release
Recommendations and Supervision (PJI/BJA 2011) [hereinafter State of the Science]. 130 Christopher Lowenkamp & Marie VanNostrand, Exploring the Impact of Supervision on Pretrial Outcomes at 17
(LJAF 2013).
131 State of the Science, supra note 129, at 33-34.
46 | Page
Bureau of Justice Statistics itself (which compiles the SCPS information), the SCPS data contains
several significant limitations that preclude any ability to meaningfully compare release or bond
types.132 For this and other reasons, researchers Kristen Bechtel, et al., explain that previous
research attempting to make these comparisons has suffered from methodological limitations,
has not accounted for alternative explanations, or, most importantly for purposes of this paper,
has only focused on one purpose underlying the bail process – court appearance – at the
expense of public safety and release rates.133
To date, only one study specifically focusing on the use of money at bail has accounted for all of
the limitations previously unaccounted for and has measured effectiveness of the studied
phenomenon on all three purposes of the release decision. Published in 2013, Michael R. Jones,
Ph. D., compared release on unsecured bonds (meaning that money was promised by a
defendant but did not have to be paid unless and until the defendant failed to appear) versus
secured bonds (meaning that money was required to be paid prior to release, either through
the defendant, the defendant’s friends and family, or to a bail bondsman for a fee) in
approximately 2,000 Colorado cases consisting of defendants in all known risk categories.
Controlling for all other factors, including risk, Dr. Jones reported the following:
[T]he type of monetary bond posted [secured versus unsecured] does not affect
public safety or defendants’ court appearance, but does have a substantial effect
on jail bed use. Specifically, when posted, unsecured bonds (personal
recognizance bonds with a financial condition) achieve the same public safety
and court appearance results as do secured (cash and surety) bonds. This finding
holds for defendants who are lower, moderate, or higher risk for pretrial misconduct. However, unsecured bonds achieve these public safety and court
appearance outcomes while using substantially (and statistically significantly)
fewer jail resources. That is, more unsecured bond defendants are released than
are secured bond defendants, and unsecured bond defendants have faster
release times than do secured bond defendants.134
As noted previously, secured bonds tend to keep some defendants in jail for the entire pretrial
period and keep others in for some shorter amount of time until they find the money to pay for
release. Measuring this particular phenomenon, Dr. Jones found that it took four days longer
for defendants with secured bonds to reach a given release threshold as defendants with
unsecured bonds due to delays likely inherent in a money-based release process:
After judicial officers set defendants’ bonds, unsecured bonds enable defendants
to be released from jail more quickly than do secured bonds. This finding is
132 See Thomas Cohen & Tracey Kyckelhahn, Data Advisory: State Court Processing Statistics Data Limitations (BJS
2010).
133 See Kristin Bechtel, John Clark, Michael R. Jones, & David J. Levin, Dispelling the Myths, What Policy Makers
Need to Know About Pretrial Research, passim (PJI, 2012). 134 Michael R. Jones, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option, at 19 (PJI 2013).
47 | Page
expected because nearly all defendants who receive unsecured bonds can be
released from custody immediately upon signing their bond, whereas
defendants with secured bonds must wait in custody until they or a family
member or friend negotiates a payment contract with a commercial bail
bondsman or their family member or friend posts the full monetary amount of a
cash bond at the jail. This finding indicates that the process of posting a secured
bond takes much longer than the process of posting a unsecured bond for
released defendants. Furthermore, this finding is consistent with previous
research using data from across the United States that shows released
defendants with secured bonds remained in jail longer than did released
defendants with bonds that did not require a pre-release payment (Cohen &
Reaves, 2007).135
Recent data from Kentucky similarly indicates that judicial decisions that rely less on secured
bonds can, in fact, positively affect all three purposes underlying the bail process. In 2012,
Kentucky Pretrial Services released a report on the impact of House Bill 463, a law substantially
altering the bail statute to better incorporate risk while including presumptions for release on
recognizance and unsecured bonds as well as an overall decrease in the use of money.
136 The
report found that these changes in the administration of bail in Kentucky led not only to higher
release rates, but also higher court appearance and public safety rates for those who were
released.137 These data, along with the virtually moneyless administration of bail performed
each day in the District of Columbia,138 strongly suggest that secured financial conditions are
not necessary for public safety and court appearance, and should make judges seriously
question altogether the continued use of money as the prime determinate of release.
Secured financial conditions have always been unfair, and so even without research judges
should avoid ordering them due to their tendency to cause unnecessary pretrial detention.
Nevertheless, the impact of research showing the effectiveness of unsecured compared to
secured financial conditions, combined with research documenting the negative effects
associated with even short-term detention, is potentially monumental. Specifically, it provides a
solution for those judges who are not completely comfortable with eliminating the use of
money, but who nonetheless want to make a release decision that: (1) is immediately
effectuated; (2) avoids creating any additional risk to public safety, court appearance, or any
135 Id. at 15. 136 See Pretrial Reform in Kentucky (Kentucky Pretrial Services, Jan. 2013) at 13, found at
http://www.pretrial.org/download/infostop/Pretrial%20Reform%20in%20Kentucky%20Implementation%20Guide
%202013.pdf. 137 See Report on Impact of House Bill 463: Outcomes, Challenges, and Recommendations (KY Pretrial Servs. June
2012).
138 See The D.C. Pretrial Services Agency: Lessons From Five Decades of Innovation and Growth, found at
http://www.pretrial.org/download/pji-reports/Case%20Study-%20DC%20Pretrial%20Services%20-
%20PJI%202009.pdf. According to the D.C. Pretrial Services Agency website, 89% of released defendants were
arrest-free during their pretrial phase in 2012 (with only 1% of those arrested for violent crimes) and 89% of
defendants did not miss a single court date. See at http://www.psa.gov/.
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other number of deleterious effects caused by even short amounts of unnecessary pretrial
detention; (3) follows the law and the history by promoting the actual release of bailable
defendants (indeed, through a centuries-old method of using unsecured financial conditions);
(4) follows the ABA’s Standards by using a fairer and less-restrictive form of financial condition;
and (5) avoids money taking on a life of its own and becoming a stakeholder or decision maker
in an otherwise rational pretrial bail process. The solution is for judges simply to use unsecured
financial conditions instead of secured financial conditions whenever they deem that money is
absolutely necessary.
The question of whether money motivates at bail is still largely unknown. The ABA Standards
state that the premise is doubtful, and supply ample recommendations to steer judges from
release decisions that require money to effectuate them. For those judges who still believe
money to be some motivation, however, making the financial condition an unsecured one –
one that requires nothing to gain release and that is due and payable only upon forfeiture of
the condition – is one that will avoid virtually every problem associated with the traditional
money bail system when it comes to the release of bailable defendants. In fact, a release
decision using unsecured financial conditions coupled with pretrial services supervision is the
closest thing we have today to the historic system of personal surety release that worked in
both England and America for centuries.
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Chapter 6. The Practical Aspects of Making an Effective
“Release/Detain” or In-or-Out Decision
Effective bail decisions maximize release while simultaneously maximizing public safety and
court appearance. They apply the law to embrace pretrial risk so that liberty is the norm, but
with the understanding that extreme pretrial risk can and should lead to pretrial detention in
carefully limited situations. They take advantage of the law and the pretrial research to
properly mitigate known risk for released defendants when risk mitigation is necessary.
Effective “no bail” decisions are comparably simpler, but require judges to use transparent and
due process-laden procedures to ensure that those rare cases of detention are done fairly. If
judges are lucky, then their guiding bail laws will contain a framework that allows them to make
effective release and detention decisions. If they are not so lucky, they can still attempt to
make reasonable decisions while, as recommended by the Conference of Chief Justices,
“analyz[ing] state law and work[ing] with law enforcement agencies and criminal justice
partners to propose revisions that are necessary to support risk-based release decisions . . . and
assure that non-financial release alternatives are utilized and that financial release options are
available without the requirement for a surety.”139
The need for judges to help seek revisions to the law (or to practices, such as money bail
schedules, that can be mandated by law or simply thrust upon judges through court tradition)
that will support risk-based or risk-informed decisions cannot be overstated. Most, if not all, of
American bail laws today are antiquated simply because they are based primarily on charge and
not risk. For example, in Colorado the Constitution provides a right to bail for all except certain
defendants who may be detained if they are charged with certain crimes along with various
preconditions, such as being on probation or parole, along with a finding of “significant peril” to
the community. It is a “bail/no bail” scheme, albeit based mostly on top charge, which means
that an extremely high risk defendant charged with a serious crime not listed in the constitution
or with a crime listed but without the preconditions, for example, cannot lawfully be detained
without bail. Instead, judges are forced to order those high risk defendants released, set
conditions of release, and hope that they cannot pay whatever secured financial condition
might lead to de facto detention. Judges in Colorado routinely set extremely high cash-only
bonds for high risk defendants, presumably in an attempt to detain them. Unfortunately, as
mentioned previously, that practice is likely unlawful under more than one legal theory. Until
states like Colorado create a more effective “release/detain” framework based on risk,
however, judges will be forced to use money. Moreover, as long as money is necessary for at
least one purpose, it will be used for others. Accordingly, much of the necessary future work of
bail reform must include discussions on changing our bail statutes to better incorporate risk.
Judges should lead these discussions.
139 Conference of Chief Justices, Resolution Endorsing the Conference of State Court Administrators Policy Paper on
Evidence-Based Pretrial Release (2013).
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Assessing any particular bail statute for such a risk-based framework can be done by holding it
up to what pretrial legal experts currently consider to be model bail laws. In 2014, the federal
statute and the District of Columbia statute (which is substantially similar to the federal law),
are considered to be the closest we have to “model” American bail laws, representing to a good
degree the embodiment of the ABA’s National Pretrial Standards as well as much of what we
know to date concerning the history of bail and the law flowing from that history.140 Both are
based on historic notions of a “bail/no-bail” or “release/detain” dichotomy. Both incorporate
pretrial services program supervision, which can be viewed as a twentieth century re-creation
of the personal surety system through its placement of responsible persons in charge of
defendants for no profit, and which today provides assurance of both court appearance and
public safety for all defendants despite their amount of wealth. Moreover, both statutes
dramatically restrict the role of secured money at bail, which has proven to be a disappointing
experiment in our attempt not only to maximize release, but also to provide reasonable
assurance of court appearance for those who are released.
The following illustration represents how these statutes and the ABA Standards lead to a
framework for an effective “release/detain” pretrial decision.

140 Historically, the 1966 federal statute served as a national model during the first generation of bail reform and
the 1971 Court Reform and Criminal Procedure Act for the District of Columbia, along with the 1984 Federal Bail
Reform Act, served as models during the second generation of bail reform. In 2011, the National Symposium on
Pretrial Justice recommended using the federal law as a model law for current pretrial reform. See National
Symposium Report, supra note 90, at 42. Nevertheless, recent pretrial research, such as research better
illuminating defendant risk, has caused persons interested in pretrial justice to further assess those models, and
has led to interest in creating a new national model based on the most recent pretrial studies.
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BAIL
“Right to Release
Before Trial;” “Right to
Freedom Before
Conviction”
(Stack v. Boyle)
NO BAIL
“[D]etention prior to trial . . . is
the carefully limited exception.”
(U.S. v. Salerno)
Is Defendant
Legally
Eligible for
Pretrial
Detention?
Consider only an individual’s
risk of committing a new crime
and not appearing in court in
setting release conditions or
limitations on pretrial freedom.
The “Bail” (Release)/”No Bail” (Detain) Decision
No
Yes
Step 1:
Proper
Purpose
Balance
The judge must balance the government’s constitutionally valid interests in public safety and court appearance with the defendant’s liberty interest through the Due Process Clause. American law
demands that judges embrace the risk that is inherent in pretrial liberty, and then allows them to mitigate that risk for reasonable, rather than complete, assurance of public safety and court appearance.
Step 2:
Further
Legal
Assessment
Assess the order of detention or
the various conditions of release
against the relevant law.
Consider the rationality and
efficacy of release conditions.
Step 3:
Assess
Release and
Detention
Release on Recognizance
Release with Non-Financial Conditions — Might Be
More Restrictive Than Unsecured Financial
Conditions in Certain Cases
Release with Unsecured Financial Conditions
Release with Secured Financial Conditions
*There may be instances in which the law does not allow for a defendant’s detention (the defendant is technically bailable) but a judicial officer believes that no
condition or combination of release conditions will provide reasonable assurance of court appearance or public safety. This is happening with increasing
frequency in America as states are recognizing the benefits of using pretrial risk assessment instruments to gauge a defendant’s risk of pretrial failure despite his
or her top charge or other precondition for detention. Seeing these instances would suggest the need for any particular state to re-structure its “bail/no bail”
dichotomy to designate the appropriate ratio of bailable to unbailable defendants based on risk or risk combined with charge. If this is not done, judges will
continue to feel pressure to bypass their current, lawfully enacted processes for detention by using a condition of release (i.e., money) to obtain the same result.
Continuum of Release Condition Categories From
Least to Most Restrictive Release or Detention Result
Pretrial Release
Ensure that conditions of release
result in the immediate pretrial
release for the vast majority of
defendants. Bailable defendants
should not be detained, and
release should not be
Eligibility Leading to
Bailability/Unbailability
Judicial Process for Setting Appropriate and Least Restrictive Conditions of
Release to Mitigate Risk of Committing a New Crime and Not Appearing
for Court During the Pretrial Period
Assess the release decision for
its contribution to, or deviation
from, a scheme in which “liberty
is the norm” and detention is
the “carefully limited
exception.”
Arrest Leads to
Presumption of Release
Pretrial
“Liberty is the norm.”
(U.S. v. Salerno)
Pretrial Detention
Ensure that the appropriate
defendants are detained.
Unbailable defendants should not
be released.*
Follow Lawful
Procedure for
Detention
Presumption of
Release

Bail or No Bail?
The initial determination flowing from this illustration involves evaluating which defendants are
bailable and which are not bailable in any particular jurisdiction. Most states have
constitutional language articulating some right to bail, and those that do not typically have
statutory language either granting the right to all “except” some class of defendants, by
presuming release, or by separating defendants based on whether they should be released or
detained, all of which are indicative of a “bail/no bail” dichotomy. The “bail/no bail” or
“release/detain” dichotomy, in turn, drives the judicial decision.
Bailablility is often separated into two main inquiries: (1) eligibility; and (2) bailability, with
defendants thus said to be eligible for either bail or no bail, but with some procedure in place to
finalize the determination. For example, in my state of Colorado, the constitutional scheme
articulates that “all persons shall be bailable except,” and then lists various crimes,
preconditions, and findings that must be present in order to detain defendants without bail.
Under that scheme, there is a clear presumption for bailability or release (following the
Supreme Court’s admonition that pretrial liberty be the norm), with relatively few persons even
eligible for detention. Moreover, even if one is eligible for detention in Colorado, the process
required by the constitution may nonetheless lead to a determination that the defendant is
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actually bailable – for example, if there is no finding of “significant peril” to the community.
Likewise, the federal statute includes a relatively broad category of offenses that make one
eligible for detention, but the detention hearing process itself may nonetheless lead to a
determination of bailability or release.
There are variations on these themes in bail schemes across the United States (from schemes
with bright-line bailability determinations to schemes that, like their earlier English
counterparts, infuse significant judicial discretion into the determination), and often there may
be considerable overlap of processes. For example, when a judge must determine whether a
person is unbailable because “no condition or combination of conditions” may suffice to
protect the public, that judge is necessarily analyzing conditions normally used for bailability,
which involves assessing them for proper purpose, lawfulness, and effectiveness – an
assessment that is discussed in more detail under the decision-making process for bailable
defendants. In the end, however, after using whatever process is in place to determine
bailability, one can typically look at any particular defendant and say that the defendant is
either bailable or unbailable.
In an appropriately structured “bail/no bail” dichotomy, all bailable defendants would be
released and all unbailable defendants would be detained, with exceptions only in extremely
rare cases. The dichotomy is just that – a division of defendants into two mutually exclusive
groups. One should not be treated as bailable and unbailable at the same time. If an accused is
bailable, the process moves toward release. If he or she is presumptively unbailable, it moves
toward detention but can result in release if ultimately determined to be bailable.
Following a particular state’s existing dichotomy is crucial to following the law, even when that
law is considered in need of amendment. Thus, whenever judges (1) purposefully or carelessly
treat a bailable defendant as unbailable by setting unattainable release conditions, or (2) treat
an unbailable defendant as bailable in order to avoid the lawfully enacted detention provisions,
they are not faithfully following the existing “bail/no bail” dichotomy, and should therefore be
compelled to do so. Such digressions, however, also suggest that the balance of the dichotomy
should be changed. Indeed, in the second American generation of bail reform, judges were
treating technically bailable defendants as unbailable by setting unattainable financial
conditions to protect public safety. They were not following the law, but they were not faulted
and instead the laws were changed. Overall, the second generation of bail reform led to
changes in “bail/no bail” dichotomies of many states by better defining classes of defendants so
that judges could ultimately detain the right persons (i.e., very high risk) through a transparent
and moneyless process of detention.
Judges are expected to follow the law, but the lessons for state legislators are these: If the
proper “bail/no bail” balance has not been crafted through a particular state’s constitutional or
statutory preventive detention provisions, and if money is left as an option for conditional
release, history has shown that judges will use that money option to purposefully detain
53 | Page
defendants through the use of unattainable secured financial conditions.141 On the other hand,
if the proper balance is created so that high risk defendants can be detained through a fair and
transparent detention scheme, money can be virtually eliminated from the bail process without
negatively affecting public safety or court appearance rates.142 Such a scheme can also prevent
the unnecessary detention of lower and moderate risk defendants who can be effectively
managed in the community, thus saving the government from wasting taxpayer funds and
preventing the unwitting contribution to increased criminal activity and failures to appear for
court.
The Right to Bail
As indicated in the illustration, and as previously discussed, the “bail/no bail” dichotomy is
largely based on the right to bail, and the right to bail should equate to the “right to freedom
before conviction” and the “right to release before trial,” as articulated by the Supreme Court
in Stack v. Boyle.
143 Any other interpretation of the right to bail would run counter to the
history of bail (which has always considered someone who is bailable to be entitled to release),
and the law (which desires, presumes, and very nearly demands release, but which has for too
long tolerated bail’s opposite effect). Properly defining the right to bail will naturally lead
jurisdictions to further question how they define the term “bail” itself. Accordingly, if the right
to bail is properly defined as the right to release and freedom, jurisdictions that define the term
“bail” as money will be seen as erroneous. As shown in the illustration, money at bail is a
condition of bail – a limitation on pretrial release and not release itself – which, like all
conditions of release or limitations on freedom, must be assessed for lawfulness and
effectiveness in any individual defendant’s case. And although money has been used for
centuries as the primary means for obtaining release, it should never be equated with the
overall concept of bail, which is most appropriately defined as a process of conditional
release.144 Concomitantly, the purpose of any particular condition of bail, or limitation on
pretrial freedom, can only be associated with court appearance and/or public safety, and
141 As mentioned earlier, using money to intentionally detain bailable defendants is likely unconstitutional. In
addition, when money is tolerated for high risk defendants, it appears to grow more tolerable for lower risk
defendants, which then leads to the unintentional detention of bailable defendants, which poses legal and social
problems beyond the un-effectuated decision. 142 The District of Columbia appears content with its balance between bailable and unbailable defendants
(resulting in the release of approximately 85% of pretrial defendants), which has allowed it to virtually eliminate
money from the bail process and thus allow the release of nearly every bailable defendant with high public safety
and court appearance rates. See Remarks of Susan Weld Shaffer, National Symposium Report, supra note 90, at 25. 143 342 U.S. 1, 4. At the date of this writing, nine states do not have constitutional right-to-bail clauses, and thus, as
in the federal system, any substantive right to bail or release would have to originate within those states’ statutory
schemes. 144 Bail defined as a process of conditional release is in accord with Supreme Court language, modern dictionary
definitions, and various state laws that have redefined the term to take into account changes in the administration
of bail in the twentieth century such as release without financial conditions, the use of non-financial conditions of
release, public safety as a constitutionally valid purpose for limiting pretrial freedom, and preventive detention.
54 | Page
therefore should not be confused with the purpose of bail, which is to provide a mechanism for
that conditional release.145
When assessing the overall right to bail, the ABA Standards remind us that the law favors
release, relying on Stack and Salerno as opinions “emphasizing the limited permissible scope of
pretrial detention.”146 Explicit guidance for that notion comes from a single sentence in the
Salerno opinion: “In our society, liberty is the norm, and detention prior to trial or without trial
is the carefully limited exception.”147 This statement provides at least some outer boundary to
keep jurisdictions from slowly eroding the right to pretrial freedom by over-expanding the “nobail” side of the dichotomy through either the use of money or even a more lawful, transparent
detention process.
Using the rest of the Salerno opinion as a guide, however, one can look at any particular
jurisdiction’s bail scheme to assess whether that scheme appears, at least on its face, to
presume liberty and restrict detention by incorporating the numerous elements from the
federal statute that were approved by the Court. For example, if a particular state has enacted
a provision in either its constitution or statute opening up the possibility of detention for all
defendants no matter what their charges, the scheme should be assessed for its potential to
over-detain based on Salerno’s articulated approval of a statute that instead limited detention
to defendants “arrested for a specific category of extremely serious offenses.”148 Likewise, any
jurisdiction that does not “carefully” limit detention – that is, it detains carelessly, arbitrarily, or
irrationally through the casual use of money in any amount or form affecting traditional bond
types – is likely to be seen as running afoul of this foundational principle.
By favoring release, the law necessarily commands judges to embrace the risk that is inherent
in our American system of bail, and to recognize that mitigation of that risk can never provide
complete insurance of public safety or court appearance due to the unpredictability of human
behavior. The late Supreme Court Justice Robert H. Jackson summed it up as follows:
Admission to bail always involves a risk that the accused will take flight. That is a
calculated risk which the law takes as the price of our system of justice. We
know that Congress anticipated that bail would enable some escapes, because it
provided a procedure for dealing with them.149
145 A review of historical documents reveals that the original purpose of bail in Medieval England was to avoid a
blood feud or private war. Later, as jails were erected, the purpose of bail evolved as a means to effectuate the
defendant’s release from jail while maintaining some control over him. See Duker, supra note 17, at 41-42; Meyer,
supra note 18, at 1175-76. 146 ABA Standards, supra note 6, Std. 10-1.1 (commentary) at 38. 147 481 U.S. 739 at 755. 148 Id. at 750. A similar overall limitation would be a constitutional or statutory provision that allowed detention
only for certain high risk individuals. Given that risk is a better indicator of pretrial misbehavior than charge, it is
unlikely that the Supreme Court would oppose a scheme using risk instead of charge as the gateway toward
detention.
149 Stack v. Boyle, 342 U.S. 1, 8 (1951) (Jackson, J., concurring).
55 | Page
It must be remembered that this statement was made when America had only one
constitutionally valid purpose for limiting pretrial freedom – court appearance – but the same
concept holds true today. There is also always some risk that defendants may commit new
offenses while on pretrial release. Nevertheless, lawmakers in America have specifically
anticipated this by providing provisions dealing with those situations as well. To be an American
means to live in a country that favors, if not demands liberty before trial, and reasonable
assurance, rather than complete assurance of public safety and court appearance when limiting
pretrial freedom. We follow the legal and evidence-based pretrial practices so as to hold on to
those fundamental precepts.
Following legal and evidence-based pretrial practices is not necessarily complicated, either. To
move from a largely arbitrary, charge and money-based bail system to an individualized, riskinformed bail system, judges setting bail must only answer the following question: “Is this
defendant someone who should remain in jail or be released pending trial?” To answer this
question, the judge must determine whether that defendant’s risk to public safety and for
failure to appear for court is manageable within the community and outside of a secure facility.
All defendants pose risk – the question is whether that risk is manageable. Some defendants
pose such a great risk that they are unmanageable in the community – i.e., no condition or
combination of conditions of a bail bond can provide reasonable assurance of public safety or
court appearance. However, the great majority of defendants only pose risks that are
manageable to reasonable levels outside of the jail.
Conditions
As seen in the illustration, release through the bail process is always conditional. Every bond is
an appearance bond, and thus has at least one condition: the defendant must show up for
court at a time and date certain. Even the broadest definition of bail, which would include
release by law enforcement on a summons, includes this basic condition. Virtually every state
also incorporates as a standard condition the requirement that the defendant not commit any
more offenses, and these two conditions are illustrative of the only constitutionally valid
purposes thus far for limiting pretrial freedom, which are court appearance and public
safety.150 Technically, detention also has conditions, which is likely why the Supreme Court
150 There are some who have said that “integrity of the judicial process” is a third constitutionally valid purpose for
limiting pretrial freedom, but that particular phrase is a term of art in the field of bail that is typically articulated
without definition or that has been further defined as, or sums up, a number of variables related to risk affecting
court appearance and public safety. For example, the American Bar Association states that the purpose of the
pretrial release decision includes “maintaining the integrity of the judicial process by securing defendants for trial.”
ABA Standards, supra note 6, Std. 10-1.1. Other jurisdictions use the phrase when describing the threat of
intimidating or harassing witnesses, arguably clear risks to public safety. The phrase “ensure the integrity of the
judicial process” was used in United States v. Salerno, 481 U.S. 739, 753 (1987), but only in a passing reference to
the argument on appeal. Reviewing the court of appeals ruling, however, sheds some light on that argument. The
principle contention at the court of appeals level was that the Bail Reform Act of 1984 violated due process
56 | Page
spoke of “conditions of release or detention” in articulating a new test for excessiveness in
United States v. Salerno.151 Nevertheless, conditions of detention are typically only the two
primary conditions – appear for court and abide by the law – which, along with a myriad of
other behaviors, are adequately monitored and effectuated by secure detention. Indeed, when
a defendant is detained, often these two primary conditions are assumed and thus
unarticulated. Accordingly, when we speak of conditions, we speak almost exclusively of
conditions of release.
As also shown by the illustration, conditions can be either “financial” or “non-financial,” and the
financial conditions can also be broken down into secured and unsecured conditions. As
discussed previously, secured financial conditions typically require some up-front payment as a
condition precedent to release. Unsecured financial conditions, like virtually all non-financial
conditions, are conditions subsequent – that is, release is obtained, but if the condition occurs
(or fails to occur, depending on its wording), it will trigger some consequence, and sometimes
bring pretrial freedom to an end. Moreover, as noted previously, when conditions of release
are set, it should be assumed that the judge is operating under the “bail” side of the dichotomy,
thus indicating a decision to release. Finally, in a bail scheme that aspires to follow Salerno’s
directive that pretrial freedom be the norm, financial conditions should be recognized as the
most restrictive conditions and used only when other, non-financial conditions cannot provide
adequate assurance of court appearance. Finally, financial conditions should never be set to
provide reasonable assurance of public safety.
This last concept is crucial to understand. There is no empirical evidence for using money to
provide assurance of public safety. Indeed, some jurisdictions make it unlawful to set financial
conditions for public safety, and the laws in virtually every state make money forfeitable only
for failure to appear for court, meaning that there is no legal basis in those states for using
money for public safety purposes. In those cases, using money for public safety would be
irrational and thus potentially unlawful.
It is critical that judges understand what “tools” they have in the way of non-financial bail
conditions to provide reasonable assurance of public safety and court appearance. Judges with
few tools, such as the supervision methods and techniques discussed in the ABA’s national

because it permitted pretrial detention of defendants when their release would pose a danger to the community
or any person. See United States v. Salerno, 794 F.2d 64 (2d Cir. 1986), rev’d, 481 U.S. 739, 753 (1987). As the
appeals court noted, this contention was different from what it considered to be the clearly established law that
detention was proper to prevent flight or threats to the safety of those solely within the judicial process, such as to
witnesses or jurors. The appeals court found the idea of potential risk to the broader community “repugnant” to
due process and, had the Supreme Court not reversed, the distinction between those within the judicial process,
such as witnesses and jurors, and those outside of it might have remained. However, by upholding the Bail Reform
Act’s preventive detention provisions, the Supreme Court forever expanded the notion of public safety to
encompass consideration of all potential victims, whether in or out of the judicial process. Today, use of the phrase
“protecting the integrity of the judicial process” typically requires further definition so as to clarify whether judicial
integrity means specifically court appearance or public safety, more general compliance with all court-ordered
conditions of one’s bail bond, or some other relevant factor. 151 See 481 U.S. 730, 754 (1987).
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standards, are at a disadvantage and will often resort to money when it appears that their
jurisdiction lacks the sort of infrastructure designed to implement those methods and
techniques. But judges should also understand two fundamental points. First, just as we are
beginning to see that money at bail may be ineffective at achieving its lawful purpose of
deterring flight, non-financial conditions also may or may not be effective to achieve their
proper purposes based on the current research literature. Unless they are effective, there is no
advantage to having them as tools, and thus they may also be deemed excessive or at least
irrational, thereby triggering due process analysis. Second, across America, we tend to oversupervise defendants, and the research is becoming clear that unnecessary supervision of lower
risk defendants can actually harm both those defendants and society at large (also implicating
excessiveness and due process).152 It is thus important for judges and other pretrial
practitioners to stay abreast of the pretrial research so that they can determine which tools
actually work best to achieve the purposes underlying the bail process.
Balance
Overall, the decision to release or detain a defendant pretrial involves a judicial officer
balancing the government’s constitutionally valid interests in court appearance and public
safety with the defendant’s liberty interest through the Due Process Clause. It is this balance
that makes bail a quintessentially judicial function, for no other criminal justice actor is required
in such a degree to fully incorporate the law and constitutional rights of defendants into his or
her bail decisions.153 Indeed, this balance is often lacking in systemwide attempts to improve
the administration of bail, where there is an overabundance of concern for public safety but
little attention paid to the rights of defendants.
Step One – Proper Purpose
According to the illustration, the first step toward lawful and effective bail decision making
involves judges articulating a proper purpose for detention or the release conditions, and this is
likely true whether analyzed under the Eighth Amendment, the Due Process Clause, or even the
Equal Protection Clause. In bail, motive matters, and so it makes a difference what Congress or
152 See. e.g., Marie VanNostrand & Gena Keebler, Pretrial Risk Assessment in the Federal Court, at 6 (U.S. DOJ
2009). Many jurisdictions are learning that an effective (and evidence-based) supervision method for all
defendants is simple court date reminders, through phone calls, text messages, or emails. Other jurisdictions are
experimenting with motivating defendants by conditioning appearance through the defendant exchanging his or
her driver’s license for a letter from the court allowing conditional driving privileges during the pretrial phase.
There is much research on the former method, see, e.g., Increasing Court Appearance Rates and Other Benefits of
Live-Caller Telephone Court Date Reminders, 48 Court Rev. 86 (AJA 2013), but very little, if any, research on the
latter.
153 While prosecutors are duty bound to seek justice, which may hint at the same sort of balance, there are
significantly different checks on prosecutorial discretion than those applied to judicial decision making to assure
adequate consideration of the defendant’s liberty interest.
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a state legislature intended when it passed any particular bail law,154 or what a judge intended
when he ordered detention or any particular condition of release.155 Certain state interests are
clearly invalid, such as setting bail to punish a defendant.156 Others are inferentially so, such as
setting a financial condition with a purpose to detain the defendant.157 This makes the
existence of a written record of bail hearings indispensable, which is why the federal law
requires (and the ABA national standards recommend) judges to provide explicit reasons on the
record for detaining any particular defendant.158
Step Two – Legal Assessment
The second step toward lawful and effective bail decision making involves further assessing
(beyond its lawful purpose) the order of detention or the various conditions of release against
the relevant law. This step involves holding them up against both federal and state law, or
occasionally against court rules, and it is typically the step in which jurisdictions not faithfully
following the “bail/no bail” dichotomy get into trouble. If a person is bailable, and thus
presumed to have a right to release, his or her conditions of release will be less likely to foster
objection, appeal, remand, or reversal under the law when they actually lead to release. But
when judges set unattainable release conditions that cause a bailable defendant to more
resemble someone who is legally unbailable under the law, those conditions of release are
more likely to run afoul of the law. This happens particularly frequently when judges set
secured financial conditions of release, which can trigger due process, excessiveness, and even
equal protection analysis when they lead to the detention of bailable defendants.
Steps one and two are somewhat interrelated. For example, if a judge was to set a secured
financial condition with a purpose to detain a bailable defendant outside of a lawful process of
detention, the improper purpose itself would likely drive analysis for excessiveness or
fundamental unfairness. On the other hand, if a judge was to set a secured financial condition
to protect public safety (technically a proper purpose even though it might, in fact, lead to
detention) in a state that does not allow the forfeiture of money for breaches in public safety
(virtually all states), the condition would make no sense and thus might offend legal principles
that require rationality as their basis, such as excessiveness or due process. Moreover, in either
case (proper purpose or not), detention caused by money set in a perfunctory bail hearing will
invite procedural due process analysis to determine whether that decision sidestepped the sort
154 See Salerno, 481 U.S. 739, 746-752 (assessing Congress’ intent in determining a facial due process challenge);
752-55 (assessing Congress’ intent on in determining facial 8th Amendment challenge). 155 See Galen v. County of Los Angeles, 477 F. 3d 652, 660 (2007). 156 See Salerno, 481 U.S. at 746; Bell v. Wolfish, 441 U.S 520, 535 – 537 and n. 16 (1979). 157 See notes 57-60, supra, and accompanying text. 158 See 18 U.S.C. § 3142 (i) (1); ABA Standards, supra note 6, Std. 10-5.10 (g).
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of due process safeguards attendant to a proper detention scheme, such as the one approved
by the Supreme Court in Salerno.
159
Even when detention is unintentional, a relatively low secured money bond can have the effect
of detaining a bailable defendant, again implicating excessiveness and due process
deprivations. Moreover, when a judge is apprised of the continued detention based on a
relatively low monetary amount, that judge’s decision not to alter the amount could be seen as
intentional detention of a bailable defendant. In a well-crafted “bail/no bail” legal scheme, not
only does the law reflect the principle that liberty is the norm, it also reflects the courts’ and
the general public’s satisfaction with the ratio of defendants (bailable to unbailable) as
reflected in the dichotomy. In the end, most defendants will be bailable and thus released, and
some unusually high risk defendants will be deemed unbailable and thus detained.
It is also during this second step that judges should keep in mind the rationality required under
traditional analyses for due process, equal protection, and excessive bail. Additionally, judges
should be especially mindful of the principle of using “least restrictive” bond conditions, a
principle often articulated by the appellate courts as using the “least onerous” means or
imposing the “least amount of hardship” on a particular defendant during his or her pretrial
release. The phrase “least restrictive conditions” is a term of art, which has a particular
meaning in bail.
The ABA Standard recommending release under the least restrictive conditions states as
follows:
This Standard’s presumption that defendants should be released under the least
restrictive conditions necessary to provide reasonable assurance they will not
flee or present a danger is tied closely to the presumption favoring release
generally. It has been codified in the Federal Bail Reform Act and the District of
Columbia release and pretrial detention statute, as well as in the laws and court
rules of a number of states. The presumption constitutes a policy judgment that
restrictions on a defendant’s freedom before trial should be limited to situations
where restrictions are clearly needed, and should be tailored to the
circumstances of the individual case. Additionally, the presumption reflects a
practical recognition that unnecessary detention imposes financial burdens on
the community as well as on the defendant.160
159 See 481 U.S. at 752 (“Given the legitimate and compelling regulatory purpose of the [Bail Reform] Act and the
procedural protections it offers, we conclude that the Act is not facially invalid under the Due Process Clause of the
Fifth Amendment.”). As indicated by the quote, Salerno involved a facial challenge; an “as applied” challenge to
any particular bail decision could theoretically present a stronger case for arguing that the detention or conditions
of release were unlawful.
160 ABA Standards, supra note 6, Std. 10-1.2 (commentary) at 39-40 (internal footnotes omitted).
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This principle is foundational, and is expressly reiterated throughout the Standards when, for
example, those Standards recommend citation release versus arrest,161 and the use of
nonfinancial over financial conditions.162 Moreover, the Standards’ overall scheme creating a
presumption of release on recognizance,163 followed by release on non-financial conditions,164
and finally, release on financial conditions,165 is directly tied to the premise of release on least
restrictive conditions. Indeed, the least restrictive principle transcends the Standards and flows
from even more basic understandings of criminal justice, which begins with presumptions of
innocence and freedom, and which correctly imposes increasing burdens on the government to
incrementally restrict one’s liberty.
More specifically, however, the ABA Standard’s commentary on financial conditions makes it
clear that the Standards consider secured money bonds to be a more restrictive alternative to
both unsecured bonds and non-financial conditions: “When financial conditions are warranted,
the least restrictive conditions principle requires that unsecured bond be considered first.”166
Moreover, the Standards state, “Under Standard 10-5.3(a), financial conditions may be
employed, but only when no less restrictive non-financial release condition will suffice to
ensure the defendant’s appearance in court. An exception is an unsecured bond because such a
bond requires no ‘up front’ costs to the defendant and no costs if the defendant meets
appearance requirements.”167 These principles are well founded in logic: setting aside, for now,
the argument that money at bail might not be of any use at all, it at least seems reasonable that
secured financial conditions (requiring up-front payment) are always more restrictive than
unsecured ones, even to the wealthiest defendant. Moreover, in the aggregate, we know that
secured financial conditions, as typically the only condition precedent to release, are highly
restrictive compared to virtually all non-financial conditions and unsecured financial conditions
in that they tend to cause pretrial detention. Like detention itself, any condition causing
detention should be considered highly restrictive.168
This second step would necessarily require judges to also question the continued use of
traditional monetary bail bond schedules, which list amounts of money as presumptive secured
financial conditions of release for all persons arrested on any particular charge. Despite
whatever good intentions existed for creating them, traditional money bail schedules are the
antithesis of an individualized bail setting,169 unfairly and irrationally separate defendants
161 See id., Std. 10-1.3, at 41. 162 See id., Stds. 10-1.4 (commentary) at 43, 44; 10-5.3 (commentary) at 111-14. 163 Id., Std. 10-5.1 at 101. 164 Id., Std. 10-5.2 at 106-107. 165 Id., Std. 10-5.3 at 110-111. 166 Id., Std. 10-1.4 (c) (commentary) at 43-44. 167 Id., Std. 10-5.3 (a) (commentary) at 112. 168 See Cohen & Reaves, supra note 121, at 3 (“There was a direct relationship between the bail amount and the
probability of release . . . The higher the bail amount the lower the probability of pretrial release.”). 169 According to LaFave, et al., the ruling and language of Stack v. Boyle “would indicate that use of a bail schedule,
wherein amounts are set solely on the basis of the offense charged, violates the Eighth Amendment except when
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based on wealth,170 are typically arbitrary,171 and displace judicial discretion at bail172 if not
unlawfully delegate judicial authority altogether. Whether judges have helped to create these
schedules or have simply had the schedules thrust upon them, all judges should find ways
around them while working toward their ultimate revision or elimination.
Finally, this second step includes analysis to assure the efficacy of any particular condition,
financial or non-financial, because conditioning release upon something that does not work to
achieve its own purpose would be irrational and thus likely unlawful. Setting a seemingly
rational condition of GPS monitoring, for example, would be no different than requiring a
defendant to wear a particular color of shoes if it is ultimately shown that GPS monitoring does
not further the purposes underlying the bail process.173 Likewise, but perhaps less intuitively, if
a secured financial condition does not work to achieve its lawful purpose, or if it works no
better than less restrictive alternatives, then the condition should be assessed under any
variety of legal principles that guide judges toward non-arbitrary and rational decision making.
Finally, and most importantly, if a condition actually works to further an outcome that is the
opposite of its intended outcome, it should be avoided altogether. This can be the case with
secured financial conditions, which, in causing even short-term detention, can actually increase
the risk to public safety and failure to appear for court.

resorted to as a temporary measure pending prompt judicial appearance for a particularized bail setting.” Wayne
R. LaFave, Jerold H. Israel, Nancy J. King, & Orin S. Kerr, Criminal Procedure (5th ed., West Pub. Co. 2009) § 12.2 (a),
at 681. Indeed, some high courts have invalidated money bail schedules because they conflict with individualized
bail schemes. See, e.g., Clark v. Hall, 53 P.3d 416 (Okla. Crim. App. 2002) (“[The provision] sets bail at a
predetermined, nondiscretionary amount and disallows oral recognizance bonds under any circumstances. We find
the statute is unconstitutional because it violates the due process rights of citizens of this State to an individualized
determination to bail.”).
170 The relevant ABA Standard “flatly rejects the practice of setting bail amounts according to a fixed schedule
based on charge. . . . The practice of using bail schedules leads inevitably to the detention of some persons who
would be good risks but are simply too poor to post the amount required by the bail schedule. They also enable
the unsupervised release of more affluent defendants who may present real risks of flight or dangerousness, who
may be able to post the required amount.” ABA Standards, supra note 6, Std. 10-5.3(f) (commentary) at 113. 171 The use of round numbers alone prompted bail researcher Arthur Beeley to call using standard amounts for
specific offenses arbitrary as early as 1927. See Arthur L. Beeley, The Bail System in Chicago, at 31-32 (Univ. of
Chicago Press, 1927). Further illustrating the arbitrary nature of the numbers themselves, jurisdictions have made
both blanket increases and decreases to their schedules. See Fewer to Get Out of Jail Cheap, Colorado Springs
Gazette (May 27, 2007) (reporting that the 4th Judicial District was raising the bond amounts for all crimes so that
they would be more aligned with those in other judicial districts throughout the state); see also Supreme Court
Lowers Amount Iowans Need to Get Out of Jail, Des Moines Register (August 16, 2007) (reporting blanket bond
reductions for non-violent felonies and misdemeanors with no explanation for the reductions); see also Lowered
Bail Bonds Make System More Equitable, Quad City Times (Aug. 31, 2007). 172 See Lindsey Carlson, Bail Schedules: A Violation of Judicial Discretion? 26 Crim. Just. (ABA 2011).
173 As noted by researchers Marie VanNostrand, Kenneth J. Rose, and Kimberly Weibrecht, while studies have not
shown electronic monitoring, including GPS monitoring, to increase court appearance or public safety rates, the
studies so far indicate that electronic monitoring might nonetheless increase release rates while maintaining the
same court appearance and public safety rates. See State of the Science, supra note 129, at 27.
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Step Three – The Release and Detention Result
The third and final step toward lawful and effective bail decision making involves assessing the
decision for its contribution to, or deviation from, a legal scheme in which “liberty is the norm”
and detention is the “carefully limited exception” pursuant to Salerno. If judges, looking at the
jail data, see that high numbers of defendants are detained pretrial for even short periods of
time, then those judges must purposefully question what is hindering pretrial liberty. The
requirement that detention be “carefully limited” is especially important as it guards against
judicial decision making that is arbitrary, irrational, or random. It is at this point that money at
bail becomes especially acute, for there is little that is “careful” about a decision that is
unintended or that may or may not be effectuated by others depending on their access to
money or perhaps their desire to yield an acceptable profit.
Conclusion
The judicial decision to release or detain a defendant pretrial is the core of the bail process,
often the focal point of the defendant’s first appearance, and the moment at which the law and
research come together for practical implementation with critically important short- and longterm ramifications to both defendants and the public. The decision is inherently a judicial
function because judges are in the best position (and with the proper appellate checks) to
simultaneously balance the defendant’s liberty interest with the broader societal interests of
public safety and court appearance.
The history of bail, the law intertwined with that history, the pretrial research, the national
pretrial best-practice standards, and the model federal and District of Columbia statutes all
point to a judicial decision that is an in-or-out decision, based on any particular jurisdiction’s
“bail/no bail” or “release/detain” dichotomy. Moreover, they point to judicial decision making
that is immediately effectuated, with nothing unnecessarily hindering or delaying either the
release or detention of any particular defendant. Finally, they point to a decision that is not left
to outside persons to effectuate, despite its potential for immediacy. The history of bail
illustrates that when a decision to release is left to others, typically because of the existence of
a secured financial condition, that decision is either delayed or thwarted altogether in a
significant number of cases for reasons not necessarily shared by the criminal justice system or
society at large.
While many of the historical, legal, and research-related concepts underlying the decision might
seem complicated, the decision-making process itself involves simply trying to determine which
defendants can be safely managed outside of a secure facility and which cannot. Nevertheless,
it involves judges fully understanding the history and law so that they are comfortable
embracing the risk inherent in the decision. Moreover, it involves judges fully understanding
the research so that they are comfortable with how and when to mitigate that risk through
lawful and effective conditions of release by following a few relatively simple steps designed to
faithfully pursue the correct release or detention path based on defendant bailability. Finally,
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the decision-making process involves radically re-thinking about how to use money at bail –
possibly to the extent of using only unsecured bonds whenever money is deemed to be
absolutely necessary. Unsecured financial conditions were used for centuries in England and in
America up until the 1800s, and so they should never be considered as “alternatives” to
secured financial conditions. Historically, unsecured financial conditions came first; similarly,
they should come to mind first whenever a judge is considering the need to use money at bail.
Secured financial conditions, on the other hand, have shown in their relatively short history to
undermine the entire bail decision-making process. Put simply, secured financial conditions at
bail skew judges’ understanding of risk, delay and sometimes prohibit the release of bailable
defendants, do not always prohibit the release of defendants who should rightfully be detained
pretrial, and often are ineffective at achieving the very purposes for which they are ordered.
Finally, if allowed the status of criminal justice stakeholder by allowing it to have influence over
the case, secured money fails because it cares nothing for the system’s vision or goals and is
quick to hand over its stakeholder status to anyone willing to pay the price.
The best pretrial infrastructure, the best overall understanding of pretrial risk, and even the
best bail laws can be rendered meaningless without effective judicial decision making at the
criminal justice system’s pretrial release and detention decision point. Our society has given
judges the extraordinary role as arbiters of liberty and justice, but those judges have only
recently been given the tools they need to adequately fulfill that role at bail. To take full
advantage of our current knowledge of legal and evidence-based pretrial practices, we must
now work together to help judges fully understand risk, mitigation of risk through lawful and
effective conditions of release, and the appropriateness of money at bail, and to help judges to
reclaim their roles as sole decision makers responsible for the pretrial release or detention of
any particular defendant. Bail belongs to judges, and we must all do our part to help judges
take back their responsibility for it. American pretrial justice hangs in the balance.