From the proliferation of community bail funds to the implementation
of new risk assessment tools to the limitation and even eradication of
monetary bail, reform movements have altered the landscape of pretrial
detention. Yet, reform movements have paid little attention to the
emerging reality of a post-monetary-bail world. With monetary bail an
unavailable or disfavored option, courts have come to rely increasingly
on nonmonetary conditions of release. These nonmonetary conditions can
be problematic for many of the same reasons that monetary bail is
problematic and can inject additional bias into the pretrial system.
In theory, nonmonetary conditions offer increased opportunities for
release over monetary bail and can be narrowly tailored to accomplish
specific goals. Yet, the proposition that nonmonetary conditions
accomplish their purported goals is untested and unsettled. Pretrial
release conditions are often imposed at the conclusion of a remarkably
brief pretrial hearing and in a near rote fashion, with little or no evidence
that the conditions are necessary to avoid the risk or risks that fuel them.
Defendants—many of whom are unrepresented at these hearings—may
be ill-equipped, financially or otherwise, to comply with these conditions.
Noncompliance may place defendants at risk of either additional criminal
charges or future pretrial detention.
This Article argues that the reduction or eradication of monetary bail
alone has not, and will not, ensure a fair and unbiased system of pretrial
detention, nor will it ensure that poor and marginalized defendants will
benefit from pretrial release. Rather, these reforms have shifted the
burden of release from paying monetary bail to paying fees for a laundry
list of pretrial release conditions. If pretrial detention reform is to achieve
meaningful results, it must address not just the most apparent barrier to
release—the fee charged in the form of bail—but all barriers that promote
pretrial incarceration and impose unjustified burdens on defendants