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Bail

"Building on the Administration¹s commitment to criminal justice reform, the convening will bring together federal officials, state legislators and judges, advocates and academics to discuss criminal justice system practices that too often contribute to the cycle of poverty and create significant barriers to reentry. Co-hosted by the Department of Justice, the convening will provide a collaborative environment to discuss and share ideas on how State and local stakeholders across the United States can implement common sense reforms so that financial obligations imposed by the government do not lead to unnecessary involvement in the criminal justice system or exacerbate poverty." Critical issues addressed during this meeting include: the increasing use of fines, fees, and bail; the disproportionate impact on low-income individuals and families; fines and fees—an ineffective way to raise funds for incarceration costs. This website provides access to both versions of this White House convening, transcript of Attorney General Loretta E. Lynch, report from the President's Council of Economic Advisors on Fees, Fines, and Bail, a National Journal article about the event, and background materials.

A Cycle of Incarceration: Prison, Debt, and Bail Practices [Webinar] Cover

This study's aim is to "shed more light on what the impact of pretrial detention may be on several non-Criminal Justice related outcomes. If we can gain a better understanding of the effects of pretrial detention, even detention for relatively short periods (e.g., less than three days), policy regarding risk-based decisions can be informed. Likewise there is benefit in further examining the “more than” vs. “less than” three days of pretrial incarceration in light of recent research that has already influenced policy in many parts of the U.S." (p. 3). It seems that pretrial detention "leads to varying levels of disruption across several indicators of functionality – specifically employment, financial situation, residential stability, and issues relating to dependent children" (p. 12).

Analyzing Bond Supervision Survey Data Cover

This brief presents information regarding pretrial and bail reform during 2013. Sections of this publication address: legislative activity; bail bond industry balks at attempts to collect forfeitures; some jurisdictions utilize pretrial services to ease jail crowding; corrupt bondsmen; and recommendations. "Overall, most jurisdictions continue to rely on money instead of scientifically measured public safety risk when it comes to pretrial release decisions. That practice, shown time and again to be ineffective, unfair and expensive, threatens public safety and puts money in the pockets of the for-profit bail bonding industry" (p. 1).

Bail Reform Update, 2013 Cover

Colorado's new pretrial bail law, H.B. 13-1236, "represents an important step forward in Colorado pretrial justice as well as significant movement toward creating a model bail statute; the process used to create it, and even the compromises contained therein, may also serve as a template for other states struggling to address global issues in bail reform. This article summarizes the new law, factors and events leading to its creation, and the research behind the CCJJ’s recommendations underlying the statutory changes. By doing so, the author of this paper hopes to help guide those involved in the administration of bail through the process of moving from a primarily cash-based system toward more rational, transparent, and fair pretrial practices … In 2014, the General Assembly passed Senate Bill 14-212 (“Concerning Clarifying Changes to the Provisions Related to Best Practices in Bond Setting,” effective July 1, 2014), which made several modifications to the Colorado bail statute as redrafted pursuant to H.B. 13-1236" (p. 1-2). Sections of this report include: introduction; a brief history of Colorado pretrial bail laws; Colorado constitution; Colorado statutes; the Colorado Commission on Criminal and Juvenile Justice (CCJJ); motivation for reform; CCJJ Bail Subcommittee and its three recommendations; legislative debate; Colorado's new pretrial bail provisions; Definition of Bail - Paragraph 16-1-104 C.R.S. (2013); Eligibility/Bailable Offenses – Paragraph 16-4-101 C.R.S. (2013); Right to Bail – Paragraph 16-4-102 C.R.S. (2013); Setting and Selection Type of Bond/Criteria - Paragraph 16-4-103 C.R.S. (2013) and 2014 legislative changes; Types of Bond - Paragraph 16-4-104 C.R.S. (2013) and 2014 legislative changes; Conditions of Release - Paragraph 16-4-105 C.R.S. (2013) and 2014 legislative changes; Pretrial Services Programs - Paragraph 16-4-106 C.R.S. (2013) and 2014 legislative changes; Hearing After Setting of Monetary Conditions - Paragraph 16-4-107 C.R.S. (2013) and 2014 legislative changes; additional provisions and 2014 legislative changes; and conclusion.

Best Practices in Bond Setting: Colorado’s New Pretrial Bail Law: Revised Edition Cover

The Colorado Pretrial Assessment Tool (CPAT) “is an empirically derived multi-jurisdiction pretrial risk assessment instrument for use in Colorado. It is designed to improve the various pretrial assessment processes that exist in local Colorado jurisdictions … The purpose of a pretrial risk assessment protocol that includes the CPAT is to enable Colorado pretrial services agencies’ recommendations for bond conditions, the court’s ordering of bond conditions, and/or the agency’s pretrial supervision to be more empirically derived and standardized statewide” (p. 3). Four chapters comprise this manual: introduction; scoring the 12 CPAT items; CPAT reporting—risk level categories, making bond recommendations using the CPAT, and additional notes; and CPAT revision.

Colorado Pretrial Assessment Tool (CPAT): Administration, Scoring, and Reporting Manual, Version 1 Cover

"As the use of fixed monetary penalties has increased, many observers have raised concerns about the equity, legality and efficiency of these regressive payments. At the same time, meaningful reforms could increase equity without sacrificing deterrent impacts of these payments or the goal of supporting criminal justice operations … [This document examines] the use and impact of fines, fees and bail, and highlight[s] potential options for reform" (p. 2). Sections cover: what fines, fees, and bail are; fines and fees—rising criminal justice budgets have motivated growth in these, the use and size of fees have increased over time, fines and fees are regressive payments that disproportionately impact the poor, fines and fees impose large financial and human costs on poor offenders, collection of fines and fees is often inefficient, reforming fines and fees could potentially increase both equity and efficiency; and bail—the use and size of bail bonds has increased over time, leading to increased pretrial detention of defendants leading to increased pretrial detention of defendants, bail assignments are regressive, leading to pretrial detention of the poorest rather than the most dangerous defendants, pretrial detention of low risk offenders is costly to taxpayers and defendants, and a number of bail reform options could both increase fairness and reduce pretrial misconduct.

Fines, Fees, and Bail Cover

"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

"[C]ritical legal principles applicable to defendants during the pretrial stage" are covered (p.3). Sections of this paper are: introduction and background; pretrial legal foundation -- presumption of innocence, right to counsel, right against self-incrimination, right to due process of law, right to equal protection under the law, right to bail that is not excessive, and summary of legal principles; evidence-based practices in pretrial services and community corrections; and summary and conclusions.

Legal and Evidence Based Practice cover

<p>"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.</p>

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

“The history of bail and the law intertwined with [this] history tell us that the three goals underlying the bail process are to maximize release while simultaneously maximizing court appearance and public safety.” -- Timothy R. Schnacke, Fundamentals of Bail

Courts in the United States process millions of criminal cases annually. Each requires a judicial officer to determine the conditions of a defendant’s release pending adjudication—bail. Bail determination is one of the most important decisions in the criminal case processing, designated as a “critical stage” by the United States Supreme Court where liberty and due process interests are paramount. Justice systems that administer bail effectively have as their overarching goals assuring a defendant’s return to court and safeguarding the community. To help balance the individual’s right to reasonable bail with the public’s expectation of safety, these systems assess the likelihood of missed court appearances or new criminal activity using factors shown by research to be related to pretrial misconduct and provide supervision designed to address these risks. Moreover, these systems give judicial officers clear, legal options for appropriate pretrial release and detention decisions. As a result, unnecessary pretrial detention is minimized, public safety is enhanced and, most significantly, the pretrial release process is administered fairly.

Unfortunately, most local justice systems lack truly effective bail decision making components. Most judicial officers do not receive the information needed in bail setting to make the best decisions about release and detention, nor do they have a full statutory gamut of release and detention options to address the varying levels of risk found within the defendant population. Even when options exist, most systems lack the structure to monitor released defendants, to regularly screen detained defendants for release eligibility, or to safeguard individual rights and community safety.

The shortcomings of the current bail system have made bail reform part of the larger national discussion on improving America’s criminal justice systems. For most justice systems in America, achieving true bail reform will mean going beyond technical changes to a deeper and more holistic change in culture and attitudes about the concept of pretrial release; the rights of pretrial defendants; and what is truly needed to reasonably assure future court appearance and community safety. In order to achieve meaningful bail reform, all elements of an effective pretrial justice system must be defined and in place.

During the broadcast presenters will: Define the framework for developing a high functioning pretrial justice system; Discuss the importance of bail history and the legal processes underlying it; Identify the essential elements of a legal and evidence based pretrial justice system; Identify the importance of the criminal justice system to support a legal and evidenced based pretrial services agency; and Discuss the differences between technical and adaptive change within organizations and the effects on implementation.

This broadcast will answer the following questions: What is the roadmap to pretrial justice reform? Where do we begin? What is the history of bail reform, and why is it important to your work today? What are the essential elements of a high functioning pretrial system? What outcomes could you expect from collaboration among pretrial justice stakeholders? What changes are needed to become a high functioning pretrial justice system? Have you ever asked the question “What are the benefits of developing a pretrial agency?”

Pretrial Justice Cover

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