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Pretrial - Bail Reform

SANTA FE – A federal judge dismissed a lawsuit challenging reforms to New Mexico’s system of pretrial release and detention of criminal defendants.

“The federal court ruling recognizes the lawfulness of New Mexico's bail reform efforts to better protect public safety and improve the fairness of the state’s pretrial justice system,” Artie Pepin, director of the Administrative Office of the Courts, said.

“The commercial bail industry's lawsuit sought to force our state to go back to a money-based bail system that released dangerous defendants who could buy a bail bond while jailing non-dangerous defendants simply for lack of money,” Pepin said on Tuesday.

U.S. District Judge Robert A. Junell issued the ruling on Monday against a lawsuit brought by the Bail Bond Association of New Mexico, several legislators and an Albuquerque woman who was charged with aggravated assault.

On December 5, 2016, Assembly member Rob Bonta, in partnership with California State Senator Bob Hertzberg, introduced the California Money Bail Reform Act of 2017 (Assembly Bill 42 and Senate Bill 10). As an ally to communities of color, Bonta was driven to address the disparities created by the bail system. The legislation aims to better serve Californians by reforming the commercial surety bail system. The objective of our project is to assist our client in evaluating policy alternatives to the commercial surety bail system, which could significantly impact California’s criminal justice system.

New Jersey’s system of pretrial release has long relied on monetary bail to ensure the presence of an accused person at trial. State v. Robinson, 160 A.3d 1, 5 (N.J. 2017). But in 2017, following an amendment to its Constitution, the New Jersey Criminal Justice Reform Act took effect. It replaced New Jersey’s former monetary bail system with a new framework that prioritizes the use of non-monetary conditions of release over monetary bail to secure a criminal defendant’s pretrial liberty.

Brittan Holland and Lexington National Insurance Corporation challenge this feature of the Reform Act as a violation of the Eighth Amendment, the Due Process Clause of the Fourteenth Amendment, and the Fourth Amendment of the United States Constitution. They seek a preliminary injunction enjoining Kelly Rosen, the Team Leader for Pretrial Services in the Criminal Division of the Superior Court of New Jersey, Mary E. Colalillo, the Camden County Prosecutor, and Christopher S. Porrino, the Attorney General of New Jersey, and their agents (for convenience we refer to the named officials and their agents collectively as the “State”), “from taking any actions to enforce statutory provisions [of the Reform Act] . . . that allow imposition of severe restrictions on the pre-trial liberty of presumptively innocent criminal defendants without offering the option of monetary bail.” Proposed Order of Plaintiffs Granting Motion for a Temporary Restraining Order and a Preliminary Injunction at 2, Holland v. Rosen, 277 F. Supp. 3d 707 (2017) (No. 17–4317).

After considering the standing of Holland and Lexington to bring suit, we conclude, as did the District Court (per Judge Simandle), that only the former may make the challenge here. On the merits, the question key to Holland’s contentions is whether there is a federal constitutional right to deposit money or obtain a corporate surety bond to ensure a criminal defendant’s future appearance in court as an equal alternative to non-monetary conditions of pretrial release. Our answer is no. Thus we affirm the District Court’s comprehensive and well-reasoned ruling.

 "The report describes California’s current pretrial system and notes that a majority of jail beds in California are filled by people either awaiting trial or sentencing—many of whom remain in jail simply because they cannot afford bail.  It explains why California’s wealth-based system of money bail is ineffective at achieving the pretrial goals of protecting public safety and ensuring court appearances, and it shows how this system harms defendants, their families, and their communities, especially poor communities and communities of color.  The report advocates for pretrial reforms that would build on the principles of Realignment by moving away from wealth-based detention system."


"In addition to the 1.6 million people incarcerated in federal and state prisons, there are 646,000 people locked up in more than 3,000 local jails throughout the U.S. Seventy percent of these people in local jails are being held pretrial — meaning they have not yet been convicted of a crime and are legally presumed innocent. One reason that the unconvicted population in the U.S. is so large is because our country largely has a system of money bail, in which the constitutional principle of innocent until proven guilty only really applies to the well off. With money bail, a defendant is required to pay a certain amount of money as a pledged guarantee he will attend future court hearings. If he is unable to come up with the money either personally or through a commercial bail bondsman, he can be incarcerated from his arrest until his case is resolved or dismissed in court."

"This paper examines our local system of bail, its shortcomings, and puts forward a range of short, medium, and long-term reforms. These recommendations grow out the work of the San Francisco Fines and Fees Task Force, that was convened by the Board of Supervisors to assess and reform how fines, fees, tickets and financial penalties impact low income San Franciscans and communities of color. The Financial Justice Project leads the Fines and Fees Task Force and coordinated a consensus building discussion to conduct this analysis and develop these recommendations. The recommendations were developed in collaboration with individuals from many city and county departments and community organizations."

"Pretrial justice requires that those seeking it be consistent with both their vision and with the concept of pretrial best practices, and this document is designed to help further that goal. It can be used as a resource guide, giving readers a basic understanding of the key areas of bail and the criminal pretrial process and then listing key documents and resources necessary to adopt a uniform working knowledge of legal and evidence-based practices in the field. Hopefully, however, this document will serve as more than just a paper providing mere background information, for it is designed, instead, to also provide the intellectual framework to finally achieve pretrial justice in America … in this country we have undertaken two generations of pretrial reform, and we are currently in a third. The lessons we have learned from the first two generations are monumental, but we have not fully implemented them, leading to the need for some “grand unifying theory” to explore how this third generation can be our last. In my opinion, that theory comes from a solid consensus understanding of the fundamentals of bail, why they are important, and how they work together toward an idea of pretrial justice that all Americans can embrace" (p. 4). Sections following an executive summary are; introduction—what bail and bond are; why we need pretrial improvements; the history of bail; legal foundations of pretrial justice; pretrial research; national standards on pretrial release; pretrial terms and phrases; application—guidelines for pretrial reform; and conclusion.

Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform cover

Bail is the process by which criminal defendants secure their release while awaiting trial. It allows people who have been charged with a crime to be released from police custody. In recent years, the criminal justice system has drawn criticism from across the political spectrum because cash bail has come to be imposed on so many criminal defendants. Data increasingly indicate that releasing a defendant pretrial has a significant impact on his long-term prospects. It affects the defendant’s ability to retain his housing, employment, and child custody, the probability that he will go on to commit another crime and even the likelihood of a favorable legal outcome in his case.

Research has also revealed that the majority of jail inmates are legally innocent but are being detained because they cannot afford to bail out before and during their trial. This imposes large costs on local governments but provides no clear public safety benefit. Finally and most importantly, states with misguided pretrial release policies may infringe on defendants’ liberty interests, opening themselves up to litigation and the risk of an injustice. For these reasons, stakeholders and practitioners in Michigan should work to understand the purpose of bail and implement the best pretrial practices for respecting individual rights and public resources.

This report explains in detail how the bail process works and provides recommendations for reforming it in a way that benefits criminal defendants, the court system and taxpayers.

"Significant legislative and constitutional improvements to New Jersey’s pretrial justice system passed in 2014 and went into effect on January 1, 2017. The Pretrial Justice Institute sat down with Roseanne Scotti, New Jersey State Director of the Drug Policy Alliance and one of the leaders in the effort to improve the state’s pretrial system, to talk about how it came about. Following is a lightly edited transcript of our conversation, which touched on the importance of building a strong coalition, clear and convincing research, enlisting stakeholder support, and being prepared to meet opposition head on. We also discussed lessons for other states considering similar improvements."

"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 … 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" (p. 1). Chapters following an executive summary are: introduction; the history and the law related to bail up to the Twentieth Century; how pretrial decision making in the United States got off track; "bail" (release) and "no bail" (detention); the national standards on pretrial release; effective pretrial decision making—risk assessment instruments, and assessing which conditions are effective for their lawful purposes; the practical aspects of making an effective "release/detain" or in-or-out-decision—the three steps of proper purpose, legal assessment, and release or detention result; and conclusion.

Money as a Criminal Justice Stakeholder: The Judge’s Decision to Release or Detain a Defendant Pretrial Cover


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