Bail reform is increasingly being considered by state legislatures and many cases challenging bail practices continue to wind their way through federal courts. Understanding the significance of these developments requires examining the role of constitutional rights, the negative effects of pretrial detention, and how recent reforms in several states are reshaping the pretrial justice landscape.

Any discussion of bail reform must begin with the constitutional bulwark that all Americans are innocent until proven guilty. Former Chief Justice William Rehnquist stated: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” This presumption of innocence is not just a theory. Unfortunately, about 20 percent of those booked into jail are never charged or have their cases dismissed.

Just as the constitutional right to due process demands individualized release determinations, the constitutional guarantee of equal protection under the law requires that defendants who pose a similar flight and public safety risk have a corresponding similar opportunity for release, regardless of ability to pay. In other words, detaining people before trial who do not pose a significant risk to public safety simply because they cannot afford bail is wrong.

There are numerous types of pretrial release, including different forms of bail. First, a court may release a defendant on his or her own recognizance, which means a simple promise to reappear for court proceedings without any other condition. Second, a court may release a defendant with non-financial conditions, which could include text reminders of court dates, drug treatment and testing, or electronic monitoring. Many of these conditions are typically enforced by a pretrial services agency through which the defendant reports to a pretrial supervision officer. Another option is an unsecured bond in which the defendant agrees that if they abscond, some money or property will pass to the government such as title to a car.

Furthermore, there are a few types of secured bonds, which involve an upfront conveyance of something of value to the government. First, with a cash deposit bond, a defendant posts money upfront with county which is returned at conclusion of case if they do not abscond. Similarly, with collateral, the defendant posts some type of property with the county that is returned when they reappear. Finally, there is commercial bail where a bail bondsmen agrees to pay the county if the defendant does not show up and the defendant pays the bondsman a non-refundable fee that is typically 10 percent of the total bond amount.

In some cases, multiple options are used, such as a financial condition coupled with pretrial supervision. Importantly, the use of commercial bail does not have any connection with public safety, as the bondsman forfeits their bond only if the defendant absconds. If the defendant is re-arrested, the bondsman may actually benefit, since that typically terminates his responsibility for the case. Even forfeitures for failure to appear are theoretical, since many jurisdictions from Texas to New York are unsuccessful in forcing bondsmen or their insurers to pay up. In fact, the treasurer in one Texas county said that bail bondsmen usually only pay 5 percent of the total owed when a client absconds.

Fortunately, in recent years, risk assessment tools have been developed that have been proven to be better predictors of flight and re-arrest than ability to pay. These tools do not replace judicial discretion, but inform it. Some such tools require interviewing the defendant, while others — such as the Public Safety Assessment — do not because they examine factors based on the defendant’s record, such as prior failures to appear and prior serious offenses.

In most jurisdictions, courts do not have the option simply to deny release. That is because state constitutions typically preclude denial of bail, also known as preventive detention. Therefore, setting high bail amounts, often without much due process such as a hearing with counsel, evolved as a method of de facto preventive detention. In practice, this often means a wealthy defendant goes free prior to trial while a poor defendant, even if they pose less of a flight or public safety risk, stays in jail. Indeed, studies commissioned by the top state courts in California and Texas found that using wealth-based detention results in higher crime rates, because it releases defendants more likely to be re-arrested for serious new offenses while keeping lower-risk defendants in jail. In fact, in November 2018, a registered Texas sex offender who had previously been incarcerated  for buying a 15 year-old girl and now faces charges for aggravated sexual assault of a child under age 14, was released on a $100,000 bond after initially being detained for months because his parents suddenly won $15 million in the Texas Lottery. This illustrates the random outcomes of a system focused on money rather than public safety.

Since 1983, the jail population of pretrial defendants has tripled, resulting $13.6 billion in costs to taxpayers. This tremendous expense in most cases actually makes us less safe. Research commissioned by the Laura and John Arnold Foundation examining more than 66,000 cases found that, after controlling for other variables, low-risk defendants held for just two to three days were 40 percent more likely to be re-arrested than those who were released after no more than 24 hours behind bars. Although overall numbers are higher for moderate-risk defendants, the same pattern holds true. These findings are likely attributable to the instability that detention creates, often fraying positive influences such as employment and family. Additionally, pretrial detention has downstream effects, as research shows it exponentially increases the chance that the defendant will ultimately be sent to state prison. Alternatively, if a defendant is succeeding in the community, perhaps under pretrial supervision or in a treatment program, a prosecutor and court could be less inclined to sentence them to prison.

While pretrial incarceration has fallen in urban and suburban areas since 2009, it has grown 436 percent since 1970 in rural counties. Possible explanations which we explored in our 2018 research paper on rural jail growth include reliance on unaffordable bail, the opioid crisis, lack of accessible alternatives to detention such as pretrial supervision and treatment, and unavailability of defense counsel.

Across the country, commercial bail is the most common form of release. However, four states don’t use it: Kentucky, Illinois, Oregon, and Wisconsin. These states still detain people who cannot afford to post secured money bail with the county. Even after pioneering a statewide pretrial assessment and supervision system, Kentucky lawmakers are looking at reforms in 2019 to promote more affordable bail amounts.

Taking it a step further, the District of Columbia not only eschews commercial bail but also the detention of defendants who cannot afford to post funds with the court — requiring money to be posted as a condition of release with the court in only five percent of cases. This does not mean everyone is released. D.C. judges are empowered to impose preventive detention after a hearing where the defendant is represented by counsel, taking into account several factors relevant to public safety, including the violent and dangerous nature of the crime, weight of the evidence against the defendant, past failures to appear, and criminal history.

The results have been impressive, with 94 percent of defendants released prior to trial and 88 percent successfully completing their period of pretrial supervision without being re-arrested. A critical question is whether the success in D.C. can be replicated.

In 2016, two states decided to find out: New Jersey and New Mexico. Neither state abolished money bail, but they adopted voter-approved preventive detention constitutional amendments coupled with statues and court rules requiring bail amounts be affordable. Previously in New Jersey, 12 percent of defendants remained in county jails because they could not post bail of $2,500 or less, which is indicative of a low-level charge. Now, courts are utilizing risk assessment and considering evidence from both sides at a hearing in an effort to ensure pretrial detention is limited to those who truly pose a danger. Since the reforms became effective at the start of 2017 in each state, only limited evidence of the results is available, but it is encouraging.

In New Jersey, pretrial detention has fallen 20 percent. While 18 percent of defendants statewide are being preventively detained, nearly a third of defendants prior to the reform languished in jail because they could not afford bail. While not prohibited, judges are only imposing money bail as a condition of release in less than 1 percent of cases.

Since the adoption of New Mexico’s constitutional amendment that required that bail be affordable and provided for preventive detention where no set of release conditions could protect public safety, the number of defendants held pending trial in Bernalillo County (Albuquerque) has declined and failures to appear in court as a percentage of total cases have also declined.

Judges are still using commercial bail, but in 84 percent fewer cases. In the first year, the number of surety bonds posted in Bernalillo County (Albuquerque) went from 2,225 to 351. Combined with the even more pronounced decline in New Jersey, this suggests that money bail was mostly being used as a de facto means of detention prior to reforms and perhaps even being intentionally set an amount the judge did not think the defendant could afford, rather than for its original purpose of being a method of release that would increase the odds the defendant would return to court.

It remains open to debate in New Mexico whether judges are overusing or underutilizing preventive detention. Of 959 petitions for preventive detention in Bernalillo County through July 2018, 359 were granted, 503 were denied, and 97 were withdrawn or dismissed. Naturally, prosecutors complain judges are not granting enough while defense lawyers say too many petitions are granted, which could mean judges are largely getting it right.

California also recently passed major legislation, which went beyond other states by abolishing money bail and adopting a particularly expansive preventive detention provision. Given that it will not go into effect, if at all, until approved by voters in a 2020 referendum and leaves many decisions to counties and the judiciary, it is far too early to assess the impact, which may vary across the state.

Even in states that have not enacted changes, many counties have taken up the mantle of pretrial justice reform, in some cases with assistance from the Safety and Justice Challenge. For example, Yakima County in Washington began using a validated risk assessment, reduced use of secured bonds, and provided counsel at the defendant’s first appearance. As a result, their pretrial release rate rose from 53 to 73 percent, with re-appearance and re-arrest rates holding steady.

Several touchstones for the future of pretrial justice reform are clear. First, validated risk assessments should be used to inform judicial decision-making. Second, to the extent it is used, money bail should be a method of release, not of detention, meaning that it must be attainable.

Additionally, preventive detention should come only after a full hearing with adequate representation and be carefully limited to cases involving defendants charged with the most serious offenses who pose the highest risk to the public It should be justified by more than a simple probable cause standard that the defendant is guilty, such as a “clear and convincing” standard and a finding that no possible set of pretrial release conditions would reasonably address the risk posed by the defendant.

Finally, conditions of release should be the least restrictive necessary to promote re-appearance and public safety based on the defendant’s individualized assessment

There may be more than one path to a just and effective pretrial system and there will surely be obstacles along the way. However, the destination is in sight: the end of an era of ever-growing pretrial jail populations that fails to deliver public safety and compromises our cherished constitutional rights of due process of equal protection.

Marc Levin, Esq. is Vice President of Criminal Justice at the Texas Public Policy Foundation, which houses the Right on Crime initiative. He can be reached at [email protected]