Law Commons^™

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 …

Freedom Isn’T Free: Why Washington State Needs To Move Beyond A Cash Bail System, Andre Jimenez

Global Honors Theses

Despite the belief that our justice system holds people “innocent until proven guilty,” for those who are unable to pay for their freedom from pretrial detention, they find the opposite to be true. The cash bail system in this country allows people to pay a court-determined fee to be released from jail after arrest while they wait for their trial. But as this paper demonstrates, the cash bail system as it currently stands in Washington State criminalizes poverty and simultaneously exacerbates racial inequities. Under this system, accused individuals who cannot afford bail, as well as their families, face extreme social …

Pretrial Detention And The Value Of Liberty, Megan Stevenson, Sandra G. Mayson

All Faculty Scholarship

How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial detention to the truly dangerous—and which has looked to algorithmic risk assessments to quantify danger—has brought this question to the fore. Constitutional doctrine authorizes pretrial detention when the government’s interest in safety “outweighs” an individual’s interest in liberty, but it does not specify how to balance these goods. If detaining ten presumptively innocent people for three months is projected to prevent one robbery, is it worth it?

This Article confronts the question of …

Enhanced Public Defense Improves Pretrial Outcomes And Reduces Racial Disparities, Paul S. Heaton

All Faculty Scholarship

Numerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.

This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the …

The Expansive Reach Of Pretrial Detention, Paul Heaton

All Faculty Scholarship

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention …

Bias In, Bias Out, Sandra G. Mayson

All Faculty Scholarship

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impacts. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race; (2) adjustments to algorithmic design to equalize predictions across racial lines; and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive because the source of racial inequality in risk assessment lies …

Preventive Detention And The Judicial Prediction Of Dangerousness For Juveniles: A Natural Experiment, Jeffery Fagan, Martin Guggenheim

Faculty Scholarship

Since 1970, legislatures have increasingly relied on preventive detention – detention before trial ordered solely to prevent an accused from committing crime during the pretrial period – as an instrument of social control. Prior to this period, detention before trial was usually ordered only to assure an accused's presence at trial or to ensure the integrity of the trial process by preventing an accused from tampering with witnesses. Today, the majority of states and the federal system have changed their laws to allow judges to detain arrestees who pose a risk to society if released during the pretrial period. Half …