CategoriesCriminal LawCriminal Procedure
Bail reform is an urgent topic in the United States and internationally, but what constitutes reform and how to accomplish reform goals is contested. Jails are a modern epicenter of incarceration, with a stunning growth in American jail populations over the past four decades despite declines in both arrests and crime. As many as sixty percent of the half million people currently in jails have not been convicted but are instead detained pretrial. Prior waves of bail reform produced a system largely reliant on secured bonds, which require up-front cash payments to avoid jail time before trial. More recent reform efforts have adopted divergent approaches towards changing bail practices. Several states have enacted legislation that has abolished the use of cash bail, reduced the use of cash bail, and conversely, required far greater reliance on cash bail. This Article seeks to shed light on key distinctions in bail reform approaches by focusing on six models: (1) the Procedural Due Process Model; (2) the Risk Assessment Model; (3) the Categorical Model; (4) the Community Services Model; (5) the Equal Protection Model; and (6) the Alternatives to Arrest Model. Each reflects a normative vision of the bail process, targets different legal actors, and raises distinct constitutional and legal questions. This Article recommends a composite model adopting elements of each model, using a separation of powers-informed approach to target pretrial actors whose often-hidden exercise of discretion can otherwise undermine efforts to consistently reform bail. This Article concludes by discussing a comprehensive vision for bail reform inside and outside of the criminal legal system.