Bail Reform and Criminal Justice: History, Pros, and Impact

Introduction

What is criminal justice reform? It is the focus on improving the criminal justice system through the implementation of evidence-based best practices, policies that promote greater equitability and fairness, and systems that are more cost-efficient (National Criminal Justice Association, 2019). One area in which reform is needed is the issue of bail. Bail is the bond that allows an arrested individual to leave jail while awaiting trial, which could last for many months. If the individual has the money, he may post bail. If not, he remains in jail. Essentially, the system favors the rich over the poor (ACLU, 2019).

There are many examples of abuses regarding bail — from the woman mistakenly jailed pre-trial who ended up losing her job and children as a result (Woods & Rosnick, 2019), to the $2 billion bail industry that profits off the impoverished (ACLU, 2019). This paper discusses the history of reform, pros and cons, incarceration rates, advocacy efforts, the current arrest and detention process, and statistics from New Jersey.

Criminal Justice Reform Background

In the 1990s there was a prevailing attitude in America that the government needed to "get tough" on crime. This led to the creation of the Three Strikes policy and to higher rates of incarceration, the rise of racial profiling, and other abuses — such as prosecutors essentially cornering suspects into pleading guilty just to avoid a lengthy trial and a potentially harsher sentence if the defense failed to persuade the jury of innocence (Vitiello, 2003).

Reform measures have been around for as long as the system itself, however. Even in Charles Dickens' day in England there was a push for reform of a system many viewed as unjust. In America, the Progressive Movement was interested in reform, and today there are activists like Angela Davis who view the system as inherently racist, given that a disproportionate percentage of incarcerated people are Black. Congress has recently taken measures to reform the system with the First Step Act, which aims to reduce harsher sentencing for non-violent offenders (Platt, 2018). However, the system is in need of greater reform beyond that — and bail reform is one of the areas where it is needed most urgently.

Bail Reform: Types and Process

There are six different forms of bail: citation release, surety bond, recognizance, property bond, immigration bond, and cash bond. The citation release occurs when police give a defendant a citation at the time of arrest that specifies when he must appear in court to face charges. The surety bond is offered by a bail bond company: the company covers the cost of bail up front and collects payment from the defendant later, with the defendant remaining liable for the full amount if he fails to appear. Recognizance is when bail fees are waived and the judge accepts the defendant's promise to appear in court. A property bond is when the defendant uses property as collateral to post bail. An immigration bond is used when the defendant is an undocumented immigrant. A cash bond is when the defendant pays bail directly in cash.

Risk factors taken into consideration include whether the defendant is considered a flight risk — that is, whether he might flee or attempt to leave the country to avoid trial. Other factors include past criminal history. First-time offenders with no prior record are likely to receive more favorable bail terms.

Bail is required in most cases because, although the Sixth Amendment guarantees the defendant a right to a speedy trial, in practice trials are rarely quick. In the meantime, the defendant has a life to return to, so bail becomes a necessary mechanism for the court to ensure the defendant will appear at trial — unless he is willing to forfeit the money posted for bail.