When politicians use the word “reform,” it sounds like a positive step. However, in the case of the U.S. bail system, that hasn’t been the case. While the original system kept crime rates down and encouraged defendants to show up at court, new rules are making that less likely.
Bail Law Before The Bail Reform Act Of 1966
Before the Bail Reform Act of 1966, American bail law was based on English law. As a colonial power, the U.S. simply copied the rules of the mother country.
In English law, the principle of “innocent until proven guilty” prevailed. Therefore, non-capital defendants (those whose sentences would be less than the death penalty) had the right to freedom until their trial date.
Many state constitutions enshrined this into law at independence. In Virginia’s 1776 Constitution, for instance, the law stated that all defendants accused of crimes “not punishable by life or limb” should be admitted to bail.
Later, the Judiciary Act of 1789 set out more clearly which types of crimes were bailable and set limits for how big judges could make the bail amounts. The aim of the legislation was to make all non-capital crimes bailable and to give judges powers of discretion over whether to grant bail for capital crimes.
Historically, some courts and judges attempted to keep non-capital defendants in jail before their trial by demanding high bail amounts. The Eighth Amendment was an attempt to stop this by prohibiting “excessive bail” but the Supreme Court did not extend these protections across all states.
Second-Generation Bail Law: The Bail Reform Act Of 1966
The Bail Reform Act of 1966 was an attempt to improve the bail system for defendants. For the first time, arrestees charged with non-capital crimes had the statutory right to release before their trial. To secure discharge, defendants had to either pay the bail upfront or get assistance from a bail bondsman.
The act also instructed judicial officers to consider the risk that the defendant would flee when granting bail. For instance, officials had to consider the defendant’s family life and ties to the community.
More dangerously, the Bail Reform Act of 1966 attempted to secure the release of defendants charged with capital crimes. If judicial officials wanted to prevent the granting of bail in these cases, they had to demonstrate that no bail conditions whatsoever would reasonably assure that the person wouldn’t flee or pose a danger. And that was considerably more challenging.
Unfortunately, such laws let defendants guilty of serious crimes re-enter the community. In many cases, they committed additional violence before being caught and released a second or third time.
Third Generation Bail: The Bail Reform Act Of 1984
In 1984, Congress repealed the 1966 Bail Reform Act and replaced it with a new set of rules called the Bail Reform Act of 1984. The goal of this legislation was to address the problems caused by the 1966 Act.
Critically, the Bail Reform Act of 1984 reversed the prohibition of pre-trial detention based on the defendant’s risk to the community. If judicial officers believed that the arrestee posed a risk to other people, they could detail them until their trial. As such, the risk of flight was no longer the only concern (as it was in the 1966 Bail Reform Act). To confirm this, the Supreme Court upheld a decision to deny bail based on a defendant’s perceived danger to the community in 1987, saying that doing so was constitutional.
The Bail Reform Act of 1984 also introduced a host of additional circumstances under which courts could not grant a defendant bail. These include when the defendant is charged with:
- A violent crime carrying a punishment of ten or more years of jail
- A crime for which the jail sentence is life imprisonment or death
- Drug offenses for which the maximum jail time is more than ten years
They also include situations where the defendant is:
- A repeat offender
- At risk of fleeing the country
- Involved in witness tampering
- Attempting to obstruct justice
To protect defendants, the Bail Reform Act of 1984 introduced special pretrial hearings to determine whether any of these situations applied. Defendants would get quick access to these to decide whether they had the right to bail or not.
Bail Laws In California
While federal bail laws have become increasingly lax, state laws are leading the charge.
In Illinois, for instance, the Black Lives Matter movement secured the elimination of cash bail under the Pretrial Fairness Act. The state will eliminate cash bail in 2023, which will result in higher repeat offenses, more danger to the community, higher taxes, and fewer criminals showing up for their court dates.
California is following a similar trend. State legislatures attempted to eliminate cash bail in 2018. Fortunately, though, the bill was ultimately unsuccessful, receiving strong resistance from multiple groups, including the American Civil Liberties Union and Human Rights Watch.
Had the bill gone through, it would have replaced cash bail with a court risk assessment. Judges would have had more power, and innocent defendants would have had to remain in detention until their trial dates, unnecessarily expanding the prison population.
Even so, in March 2021, California’s Supreme Court passed a new $0 cash bail law stating that judicial officials cannot detain people simply because they can’t afford to pay bail. The result has been a dramatic increase in non-violent felonies and misdemeanors.
California’s bail system is already heavily regulated by a number of laws on the books, including the state’s penal and insurance codes. These already provide significant protections to both defendants and members of the public.
The original bail system worked well for over a century. However, changes in the law are threatening that. The introduction of new zero-dollar bail laws in California is endangering the public and causing crime to increase dramatically. The state needs to reverse course on these laws and re-institute the traditional tried-and-tested approach.
Tags: Bail Reform