Bail and Pretrial Detention

by

Celesta Albonetti

• LAST REVIEWED: 24 June 2019
• LAST MODIFIED: 28 May 2013
• DOI: 10.1093/obo/9780195396607-0084

Introduction

Determining the accused pretrial status requires tracing the interplay between legislative and case law attempts to define the legal function of bail. The perennial concern has been the clash between the defendant’s interest in pretrial freedom and the government’s interest to protect the community. Studies conducted as early as the 1930s revealed widespread bail practices that detained defendants solely due to the defendant’s inability to meet financial conditions of release. In the 1950s and 1960s a heated debate emerged over the legal function of bail and the legally relevant information upon which judicial officers are to base the severity of bail imposed prior to trial. Legislative attempts to reform bail practices were codified in the Bail Reform Act of 1966 (18 U.S.C. § 3146 [1966] [current version at 18 U.S.C. § 3142 Supp. III. 1985]) and the Bail Reform Act of 1984 (18 U.S.C. § 3141–3156 Supp. III 1985). The acts and case law contained primarily in Stack v. Boyle (342 U.S. 1, 4 [1951]), Carlson v. Landon (342 U.S. 524 [1952]), Gerstein v. Pugh (420 U.S. 103 [1976]), Bell v. Wolfish (441, U.S. 520 [1979]), and U.S. v. Salerno (794 F.2d 64 [2nd Cir. 1986]), reversed, 107 S. Ct. 2095 (1987) produced inconsistent and contradictory positions on the legal function of bail. Extensive legal literature developed debating the ongoing tension between defendant’s liberty rights and public safety. At the heart of this debate are challenges centered around substantive and procedural rights about pretrial preventive detention and the defendant’s protections under the Fourth, Fifth, and Eighth Amendments, and the due process clause of the Fourteenth Amendment. Social science research has taken three general directions. The first direction sought to describe bail practices in terms of pretrial outcomes in large urban areas. The second direction focused on identifying the variables predictive of pretrial dangerousness and flight risk. The third direction attempts to estimate the variables significantly affecting the severity of bail outcomes. These avenues of research are reflected throughout seven decades of empirical work presented herein. Because of the centrality of legislative reform, this bibliography is organized in terms of time periods relative to the passage of the Bail Reform Act of 1966 and the Bail Reform Act of 1984.

Practices Prior to the Bail Reform Act of 1966

As early as 1927, researchers including Beeley 1927 and Morse and Beattie 1932 empirically examined the judicial discretion at the bail hearing. Much of the early research, such as Alexander, et al. 1958; Foote 1954; Goldfarb 1965; and Rankin 1964, found that judges relied heavily on high amounts of cash bail, resulting in pretrial detention for a large number of defendants who posed little risk of nonappearance. Beeley 1927; Morse and Beattie 1932; Foote 1954; and Ares, et al. 1963 argued that preventive detention prior to trial violates the accused’s constitutional rights and is contrary to the principle of the presumption of innocence. Research indicated that offense seriousness was the strongest predictor of the amount of cash bail. This finding called into question the constitutionality of bail practices that penalized defendants for offenses yet to be proven according to due process procedures (see Goldfarb 1965).

• Alexander, G., M. Glass, J. W. Roberts, J. S. Palermo, and A. Sturz. 1958. A study of administration of bail in New York City. University of Pennsylvania Law Review 106:693–730.

  DOI: 10.2307/3310385

  Research indicated that bail is typically set without regard for the defendant’s ability to meet the bail amount. The research documented how the New York bail system discriminated against defendants who could not afford bail and for whom a lower more reasonable amount of bail would have assured appearance at trial.

• Ares, C. E., Anne Rankin, and A. Sturz. 1963. The Manhattan bail project: An interim report on the use of pre-trial parole. New York University Law Review 38:67–95.

  Findings from the multi-year study of bail decision making in Manhattan. The project was designed to investigate pre-arraignment investigations and to determine whether a significant number of indigent defendants could successfully be released on parole during pretrial processing. Researchers concluded that the use of cash bail resulted in widespread pretrial detention for defendants who posed no flight risk.

• Beeley, A. 1927. The bail system in Chicago. Chicago: The Univ. of Chicago Press.

  Used official court records and interviews with defendants in Chicago for the purpose of studying bail decision making outcomes. Findings indicated that judges heavy relied on imposing financial conditions for bail. This widespread practice resulted in many defendants being detained during pretrial processing solely due to an inability to meet the cash amount.

• Foote, Caleb. 1954. Compelling appearance in court: Administration of bail in Philadelphia. University of Pennsylvania Law Review 102:1031–1079.

  DOI: 10.2307/3309895

  Author’s research indicates widespread use of case bail in Philadelphia noting the reality that poor defendants were detained in jail during pretrial processing solely due to an inability to meet the financial condition for release. The heavy reliance on cash bail amounted to economic discrimination in bail setting with the result that indigent defendants do not have equal access to pretrial liberty or equal protection under the law.

• Goldfarb, R. L. 1965. Ransom: A critique of the American bail system. New York: Harper and Row.

  Reports the Vera Institute of Justice in New York City findings in the 1960s that only 1.5 percent of the 3,500 defendants released during pretrial failed to appear for further case processing. This finding was nearly three times better than the rate for comparable defendants who were released on bail.

• Morse, W., and R. Beattie. 1932. Survey of the administration of criminal justice in Oregon. Oregon Law Review 11:100–130.

  Finding that a large number of defendants were detained during pretrial processing solely due to an inability to meet cash amount for release.

• Rankin, Anne. 1964. The effect of pretrial detention. New York University Law Review 39:641–655.

  Research findings indicate that defendant’s prior record, bail amount, type of counsel, family integration, and employment stability do not account separately for the relationship between pretrial detention and the severity of punishment imposed upon conviction.