Pretrial Justice Reform in the United States: A Review of Contemporary Efforts to Abolish Cash Bail

• In Event: POL Panel 25. Investigative challenges and legal practice: Pre-charge bail, the polygraph, waste crime and effective interviewing.

Abstract

The pretrial decisions and practices—whether or not persons accused of crimes are tried in liberty or confinement—are some of the most consequential in any legal system. They juxtapose concerns for individual liberty, the safety of the community, and the integrity of the judicial process. The United States is one of the few countries in the world to rely on the use of cash bail as a main mechanism to determine the accused’s pretrial status (i.e., release or preventative detention)—and the history of bail reform in the United States identifies the reliance on cash and the resulting discriminatory consequences as the most intractable problem. This paper highlights the most significant contemporary efforts to reform pretrial justice, namely those aiming to abolish cash bail entirely. We compare and contrast bail reform in three jurisdictions, as case studies: the State of New Jersey, as legislator-led reform; Harris County, Texas, as judiciary-led reform; and the City of Philadelphia, Pennsylvania, as prosecutor-led reform. Our review suggests that legislator-led reforms are most likely to be successful in implementing policy as intended. Across all approaches, it is essential that support for the reform is secured across a wide spectrum of stakeholders, and especially those most directly responsible for final decision-making, the judiciary. The Philadelphia effort, in particular, offers a cautionary tale about reform pursued mostly unilaterally. Across the board, all reforms also need to monitor for and take measures to decrease race disparity in bail-related outcomes. Lastly, the paper underscores challenges to reform stemming from the common-law roots and the political nature of the legal system of the United States, especially as they relate to the sources of law and ability of legal actors to enact reforms.

Authors

• E. Rely Vîlcică, Temple University, Department of Criminal Justice

• Sarah D Jones, Temple University, Department of Criminal Justice