Despite some fear-mongering rhetoric amid post-COVID spikes in crime and pushback on reforms previously enacted, modernizing and improving the bail system does not have to be seen as soft on crime. Rather, when done well, it follows the expertise of criminal justice professionals and research, leading to safer communities, better use of government resources and protection of our freedom.
The use of bail has changed many times over the centuries, shifting with updates to legal frameworks and changing societal norms. As with most laws, there have been good and bad practices that have shaped today’s bail systems. In our new, one-of-a-kind analysis of bail laws across all 50 states, we found several promising practices and emerging trends that can serve as guideposts to shape the future of America’s pretrial system.
Rethinking bail requires smart evidence-based changes aimed at creating a fairer and more effective system. This means focusing on policies that prioritize constitutional protections over pre-emptive punishment and reject preferential treatment for the wealthy. It also means understanding how pretrial laws compare across states and identifying tools that can effectively address public safety without making jails more dangerous or contributing to future criminality.
One promising trend, referred to as “least restrictive” or “onerous conditions” policies, limits the burden of pretrial measures to only what is needed to practically mitigate risk. However, the success of these policies relies on the availability of resources, such as electronic monitoring or pretrial services for defendants. Notably, some states have gone a step further with efforts to ensure that release requirements are tailored to individuals’ circumstances.
States have also increased the use of pretrial risk assessments to evaluate the likelihood that an individual will appear in court or be rearrested while on release. There are coinciding concerns regarding their potential bias or effectiveness, resulting in some states limiting their use. Looking ahead, it is likely that most states will adopt statewide use of pretrial risk assessments but require that they be validated for accuracy and fairness and that they be used to complement, rather than replace, judicial discretion.
Currently, however, widespread access to pretrial services remains limited, with only a handful of states offering it statewide. This disproportionately affects rural communities: These small localities often will not have the same level of local resources for such programming, highlighting the need for state-led efforts for statewide accessibility. However, there is also a risk of overreliance on pretrial services, such as requiring supervision for defendants who may not need it, which can strain the resources that are available and compromise support for defendants truly in need. States will need to take a balanced approach to providing access and limiting unnecessary supervision.
Of course, sometimes detention is needed before trial if the person being charged with an offense poses a significant risk. Indeed, while courts have consistently upheld that pretrial detention should be an exception and not the rule, it certainly needs to be an option for courts. As it currently stands, however, in many states the inability to prevent pretrial release when there are flight or safety concerns results in the use of excessive cash bail as a form of preventive detention. This practice results in unintended consequences, with low-risk, poor defendants unjustly detained while high-risk, wealthier defendants pay for release.
States should transition to a risk-based approach to detention, rather than one based on financial means. This will sometimes require intentional and direct use of preventive detention. It may also require examination of constitutional limitations in some states and certainly demands sufficient due-process safeguards and protections to prevent unjust or unnecessary deprivation of individuals’ freedom.
As states try to improve their pretrial systems, policymakers should base their decisions on evidence, expertise and a shared commitment to safety and justice. By transcending political divides and embracing pragmatic solutions, communities will be safer and individual freedom will be preserved.
Lisel Petis is a former prosecutor and resident senior fellow for criminal justice and civil liberties at the R Street Institute, a Washington, D.C.-based think tank engaged in policy research in support of free markets and limited, effective government.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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