Law Commons^™

Mass E-Carceration: Electronic Monitoring As A Bail Condition, Sara Zampierin

Utah Law Review

Over the past decade, the immigration and criminal legal systems have increasingly relied on electronic monitoring as a bail condition; hundreds of thousands of people live under this monitoring on any given day. Decisionmakers purport to impose these conditions to release more individuals from detention and to maintain control over individuals they perceive to pose some risk of flight or to public safety. But the data do not show that electronic monitoring successfully mitigates these risks or that it leads to fewer individuals in detention. Electronic monitoring also comes with severe restrictions on individual liberty and leads to harmful effects …

The Future Of Bail Reform In The United States, Mary Gorham

Senior Theses

This thesis examines bail reform, specifically cash bail reform, across several jurisdictions in the United States. The goal of this research is to provide a synthesis of the literature and reform efforts at the state and federal levels. Importantly, this thesis will examine recent modifications to the cash bail systems in four states. in order to get a balanced perspective on the success of these reform efforts. In the pages that follow, there will be a presentation of the literature review and a discussion of the reforms that have been undertaken since 2015. Additionally, this thesis will discuss how the …

Does Public Health Start Within Jails? A New Incentive For Reform Of Wisconsin's Bail System, Mahmood N. Abdellatif

Marquette Law Review

Wisconsin’s Milwaukee and Dane Counties are among many jurisdictions in the country employing modern bail reforms, specifically the Public Safety Assessment (PSA). Most of these jurisdictions adopted the PSA before the advent of the COVID-19 pandemic in the United States, but are increasingly relevant as the virus continues to derail public health measures. Through the intersection of detainees, correctional officers, judicial officials, attorneys, and visitors, millions of Americans filter in and out of correctional facilities on an annual basis. These facilities serve as a microcosm of society and breeding ground for mass infection. The COVID-19 pandemic amplified an existing need …

The Trouble With Time Served, Kimberly Ferzan

Faculty Scholarship at Penn Carey Law

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent. A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time …

Sb 174: Revising Georgia's List Of Bail Restricted Offenses, Natalie E. Delatour, Lauren Meeler

Georgia State University Law Review

The Act amends Georgia’s law relating to the general provisions regarding bond and recognizances by revising the list of bail restricted offenses through the addition of both misdemeanor and felony crimes. The Act authorizes appointed judges who are fulfilling a vacancy of an elected judge to issue certain bonds and an unsecured judicial release in certain circumstances.

State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson

Articles, Book Chapters, & Popular Press

Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …

Bail In The Time Of Covid-19, Thomas A. Stinson

Master of Laws Research Papers Repository

The COVID-19 pandemic that began in early 2020 resulted in changes to both the form and content of bail hearings and reviews within Ontario. While the statutory framework contained within sections 515, 520, 525 and 679 of the Criminal Code remained unchanged, practical changes were necessary in order to allow bail matters to occur virtually and safely. Initially, the existence of COVID-19 may have allowed for the release of some accused persons who would not have been let out on bail prior to the pandemic. By early 2021, bail courts appear to have settled into a pattern where the COVID-19 …

An Absolute Deprivation Of Liberty: Why Indigents’ Wealth-Based Discrimination Claims Brought Under The Equal Protection Clause Should Be Subject To Intermediate Scrutiny, Athena Hernandez

Golden Gate University Law Review

This Comment argues that wealth-based discrimination claims concerning pretrial detention of indigents should be analyzed under an Equal Protection framework and subjected to intermediate scrutiny. In order to provide an overview of the Supreme Court precedent established for these types of claims, Part I of this Comment will discuss the relevant and historic Supreme Court cases which have analyzed wealth-based incarceration claims in the United States. To further establish how Federal Courts have treated wealth-based incarceration Equal Protection claims, Part II will discuss the Fifth Circuit’s relevant opinions. Part III outlines the court’s decision in Walker, discussing how the …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

Discretion And Disparity In Federal Detention, Stephanie Holmes Didwania

Northwestern University Law Review

The uniquely American phenomenon of mass incarceration plagues the pretrial space. People awaiting trial make up roughly 20% of those held in criminal custody in the United States. Largely overlooked by bail-reform advocates, pretrial detention in the federal criminal system presents a puzzle. The federal system detains defendants at a much higher rate than the states—more than 60% of U.S. citizen-defendants were detained pending trial by federal courts last year. But federal defendants virtually never fail to appear in court, and they are rarely arrested for new crimes while on pretrial release. And unlike state court systems, cash bail is …

My Cash Is My Bond: Recognizing Rights To Cash Bail Forfeiture Exoneration In Washington, Olivia Hagel

Washington Law Review

When criminal defendants fail to appear for a court date after they are released on a bail bond or cash bail, Washington courts will likely forfeit their bail. And when the defendant reappears—whether a day, a month, or a year later—that same court might return, or “exonerate,” the bail bond or cash bail.

But Washington does not treat cash bail and bail bonds similarly in the context of forfeiture exoneration. Commercial bail bond agents enjoy robust statutory and judicial avenues for the return of their forfeited bail bonds. A little over one-hundred years ago, the Supreme Court of Washington treated …

Law School News: Professor Gonzalez Is 2020 Rhode Island Lawyer Of The Year 01/11/21, Barry Bridges, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Exposing Police Misconduct In Pre-Trial Criminal Proceedings, Anjelica Hendricks

Faculty Scholarship at Penn Carey Law

This Article presents a unique argument: police misconduct records should be accessible and applicable for pre-trial criminal proceedings. Unfortunately, the existing narrative on the value of police misconduct records is narrow because it exclusively considers how these records can be used to impeach officer credibility at trial. This focus is limiting for several reasons. First, it addresses too few defendants, since fewer than 3% of criminal cases make it to trial. Second, it overlooks misconduct records not directly addressing credibility—such as records demonstrating paperwork deficiencies, failures to appear in court, and “mistakes” that upon examination are patterns of abuse. Finally, …

Examining Racial And Ethnic Disparity In Prosecutor’S Bail Requests And Downstream Decision Making, Connor Concannon

Dissertations, Theses, and Capstone Projects

Rigorous academic research into prosecutorial and judicial decision making has been taking place for over three decades, but a great deal remains unknown about the mechanics of prosecution. A majority of the work done by prosecutors occurs outside of public view, and most research focuses on the ‘back end’ of the adjudication process, leaving unanalyzed numerous decision points made upstream of the final plea and sentencing outcomes. Using unique data from the New York County District Attorney’s Office that tracks 43,971 felony complaints, this research examines racial and ethnic disparity at multiple decision points during case processing, with a focus …

Griffin V. Illinois: Justice Independent Of Wealth, Neil Sobol

Faculty Scholarship

More than sixty years ago in Griffin v. Illinois, Justice Hugo Black opined that equal justice cannot exist as long as “the kind of trial a man gets depends on the amount of money he has.” While Griffin dealt with the limited issue of the inability of a defendant to pay for an appellate transcript, the Supreme Court and legislatures would subsequently extend Black’s equal justice analysis to cases involving other forms of criminal justice debt assessed at trial, appeal, incarceration, and probation. Despite the promise of these judicial and legislative pronouncements, indigent defendants, relative to defendants with financial …

Valdez-Jimenez V. Eighth Jud. Dist. Ct.,136 Nev. Adv. Op. 20 (April 9, 2020), Katrina Weil

Nevada Supreme Court Summaries

The Court determined what process is constitutionally required when a district court sets bail in an amount that the defendant cannot afford, resulting in pretrial detention. The Court found that bail may only be imposed where it is necessary to reasonably ensure the defendant’s appearance at court proceedings or to reasonably protect the community. If a defendant remains in custody after arrest they are (1) entitled to an individualized hearing, where (2) the State must prove by clear and convincing evidence that bail, rather than less restrictive conditions, is necessary to ensure the defendant’s appearance at future court proceedings or …

You Made Gideon A Promise, Eh?: Advocating For Mandated Publicly Appointed Counsel At Bail Hearings In The United States Through Domestic Comparisons With Canadian Practices And Legal Considerations, Lauren Elizabeth Lisauskas

Georgia Journal of International & Comparative Law

No abstract provided.

Law School News: 'Injustice Dehumanizes Everyone It Touches' 1-31-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Our Criminal Justice System Is A Bear Trap, Frederick K. Brewington

Journal of Race, Gender, and Ethnicity

No abstract provided.

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Sandra Mayson, Andrea Woods, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …

Misdemeanors By The Numbers, Sandra G. Mayson, Megan T. Stevenson

Faculty Scholarship at Penn Carey Law

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue. But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research. This Article represents the most substantial empirical analysis of misdemeanor case processing to date. Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, …

Detention By Any Other Name, Sandra G. Mayson

Scholarly Works

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …

The Future Of Bail In California: Analyzing Sb 10 Through The Prism Of Past Reforms, Adam Peterson

Loyola of Los Angeles Law Review

The cash bail system is the cause of numerous injustices. It favors the rich over the poor, it packs jails to the breaking point, and it forces those who have yet to be found guilty to sit in jail—often for weeks or months at a time. In 2018, the California legislature passed SB 10. The bill purported to abolish cash bail wholesale and replace it with a risk assessment program. While SB 10 is a step in the right direction, it faces many obstacles before it accomplishes its goal. This Note examines the bill in light of past attempts at …

Devil Take The Hindmost: Reform Considerations For States With A Constitutional Right To Bail, Jordan Gross

Akron Law Review

There is no federal constitutional right to bail. This means the question of who is bailable in state court is left entirely to state law. Most original state constitutions guaranteed that “all persons shall be bailable by sufficient sureties,” except those charged with a narrow category of serious offenses (typically capital crimes). This traditional right to bail is categorical – if an accused is charged with a bailable offense, the trial court must set bail, and it must release the accused if he, or someone on his behalf, posts bail. The trial court can impose conditions of release, including requiring …

Dividing Bail Reform, Shima Baughman

Utah Law Faculty Scholarship

There are few issues in criminal law with greater momentum than bail reform. In the last three years, states have passed hundreds of new pretrial release laws, and there are now over 200 bills pending throughout the states. These efforts are rooted in important concerns: Bail reform lies at the heart of broader recent debates about equitable treatment in the criminal justice system. Done right, bail keeps dangerous individuals off the streets; done wrong, it keeps those with less economic means in jail longer. Some jurisdictions are eliminating money bail. Others are adopting risk assessments to determine who to release. …

To Bail Or Not To Bail: Protecting The Presumption Of Innocence In Nevada, Ebeth Palafox, Brendan Mcleod

Nevada Law Journal Forum

This white paper aims to discuss the issues associated with bail reform in Nevada, provide an analysis of bail reform efforts across the country, and purpose possible solutions for obstacles to bail reform in Nevada. The white paper’s proposed recommendations for practical bail reform is a three-phase plan to eliminate the injustices that arise from Nevada’s current cash bail model.

Extending Our Promise: Providing Help To Mentally Ill Accused As Soon As Practicable, Cassandra Demelo

Electronic Thesis and Dissertation Repository

This thesis examines the current state of the criminal law’s interaction with mentally ill persons, with a specific interest in this interaction during pre-trial phases such as arrest and bail. It argues that the current provisions in the Criminal Code of Canada that allow for limited instances of pre-trial mental health assessments for adults are insufficient. The current options, including assessments to determine “not criminally responsible for reasons of mental disorder” or “fitness”, are not applicable in many situations. Other options available to accused outside of the Criminal Code are also lacking, as they are limited to the Mental Health …

Punishing Poverty: Robinson & The Criminal Cash Bond System, Lauren Bennett

Washington and Lee Journal of Civil Rights and Social Justice

The current cash bail system works in a way that punishes poverty. In Robinson v. California, the Supreme Court held that it is unconstitutional under the Eighth Amendment to punish an individual for a status or condition. Poverty is a status. The cash bail system is unconstitutional under Robinson and the Eighth Amendment because it punishes the status of poverty. Similar to drug addiction, poverty “may be contracted innocently or involuntarily or it might even take hold from the moment of a person’s birth.” Kalief Browder had no control over his family’s financial position. Yet, this financial position kept him …

I Know What It's Like.Pdf, Jennifer Levy-Tatum

Jennifer W. Levy-Tatum