John Simon, Associate Member, University of Cincinnati Law Review
While the United States Constitution provides, in the Bill of Rights, protections against “excessive bail,” nearly half a million people are currently in prison awaiting trial, many of them detained pretrial due to an inability to afford bail. As the ACLU notes: “Money shouldn’t determine someone’s freedom from incarceration.” State governments are trending toward bail reform; now is the time to examine those efforts.
History of Bail Reform
In 1965, President Lyndon B. Johnson, recognizing a crime problem in the United States, established the Commission on Law Enforcement and Administration of Justice, which was tasked with conducting research on all facets of the criminal justice system and providing revolutionary recommendations to aid in President Johnson’s “war on crime.” The Commission’s published report, “The Challenge of Crime in a Free Society,” made recommendations to President Johnson. Allen Blumstein, Professor at Carnegie Mellon and a member of the original research staff, noted that the recommendations started “a movement toward thinking of the criminal justice system as a system.”
The Committee’s recommended bail reform attempted to limit the actual imposition of money bail. The Committee noted: “Bail projects should be undertaken at the State, county, and local levels to furnish judicial officers with sufficient information to permit the pretrial release without (the?) financial condition of all but that small portion of defendants who present a high risk of flight or dangerous acts prior to trial.” Thus, the recommended system focuses on judicial information gathering to allow judges to make informed decisions regarding pretrial release or the imposition of bail.
While research was being conducted, Congress passed the Federal Bail Reform Act of 1966 which sought two objectives. First, the Act attempted to eradicate the notion that the prospect of pretrial release depended upon the individual’s wealth. Second, it sought to ensure that individuals who posed a significant threat to society would be held without pretrial release. While the first objective was seemingly met, by creating the presumption of pretrial release except where the court determined that the individual was a flight risk, Congress later determined that the Act failed to address the issue of community safety.” Thus, in 1984, Congress further amended the Act. The Federal Bail Act of 1984 permitted courts to detain individuals pretrial in limited instances in which the “accused posed a danger to the public or particular members of the public.” The federal government’s concept of a cashless bail system trickled into state reforms nearly three decades later.
Contemporary Overview of Bail Reform Movements
A March 2013 study examining New Jersey’s criminal justice system revealed that twelve percent of the entire prison population was incarcerated because of an inability to post a bond of $2,500 or less. Public officials and organizations, including the ACLU, sought reforms to ensure that an accused’s pretrial liberty would not be dependent upon the “thickness of [his or her] walle[t].”
In 2014, citizens of New Jersey voted to amend the New Jersey Constitution regarding bail with the Criminal Justice Reform Act. Passing with 61.8 percent of the vote, the Act called for an undoing of the money bail system by utilizing a public safety assessment (PSA) tool developed by the Laura and John Arnold Foundation. The PSA has compiled 1.5 million cases drawn from over 300 jurisdictions to assess risk factors that determine an accused likelihood of committing a new crime, committing a new violent crime, and flight. Under the new system, prosecutors must convince a judge by clear and convincing evidence that the accused is a danger to society, a flight risk, or may obstruct the criminal process. If the judge is unconvinced, then he or she may release the accused either upon the accused’s own recognizance or with certain conditions—the wearing of an ankle monitor, for instance. While bail may still be a condition of pretrial release, judges prefer using alternate conditions; any order for pretrial detention means the accused will be incarcerated, regardless of wealth, until the case reaches its conclusion.
The Criminal Justice Reform Act took effect on January 1, 2017. Statistics through its first year demonstrate a significant improvement regarding pretrial detention. The Act has led to a twenty percent decline in the pretrial detention population. Further, leading up to the official enactment of the Act, pretrial detention rates fell by thirty-five percent—as prosecutors shifted detention recommendations in anticipation of the passage of the Act. Stuart Rabner, Chief Justice of the New Jersey Supreme Court, noted: “[T]he reforms underway will be hard to achieve. They will succeed only with the continued cooperation among partners throughout the criminal justice system and the continued support of all branches of government.” While New Jersey continues to monitor its reformed bail system, other states are attempting to introduce their own reforms to bail.
In the summer of 2017, California became the next state to address bail reform as California’s First Appellate District heard Kenneth Humphrey’s challenge to the bail process.
Four decades before In re Humphrey came to the appellate court, the Governor of California, in his State of the State Address, argued for cash bail reform because the system proved to be biased in favor of the rich at the expense of the poor. As In re Humphrey was heard, the California legislature debated the passage of Senate Bill 10, the California Money Bail Reform Act of 2017. The Act proposed the elimination of cash bail entirely while creating a system focused on risk assessment; however, it would not be enacted prior to the resolution of In re Humphrey.
After being given a bail amount of $600,000, Kenneth Humphrey filed a motion for a formal bail hearing contending that “‘bail, as presently set, is unreasonable and beyond the defendant’s means’ and ‘violates the Eighth Amendment’s proscription against excessive bail.’” Reviewing the motion, the trial court deviated slightly from the bail schedule—to $350,000—citing Humphrey’s ties to the community, but made no mention of Humphrey’s financial situation or his ability to pay bail. Humphrey appealed to California’s First Appellate District contending that the high bail denied him due process of the law and deprived him of his personal liberties based on poverty.
Under California’s statutory bail scheme, bail is scheduled according to each offense individually with any adjustments stemming from the court weighing factors, including the seriousness of the alleged crime, the danger that the accused poses to the public, prior criminal record, and the risk of flight. Before a court can reduce the scheduled bail, it must make findings of unusual circumstances and note those circumstances in its decision; the court may consider the accused’s ability to post bond, but nothing requires the court to consider less restrictive alternatives to money bail.
California’s First Appellate District primarily followed three lines of cases to ultimately determine that the process used to calculate Humphrey’s bail constituted the “antithesis of the individualized inquiry required before a court can order a pretrial detention.”
The court instructed that under Bearden v. Georgia, the State cannot impose a fine or restitution as an individual’s penalty only to imprison that individual solely because he or she lacked the resources necessary to pay the penalty. Compiling Bearden and its related cases, the Ninth Circuit ruled that those cases “‘stand for the general proposition that when a person’s freedom from governmental detention is condition[ed?] on payment of a monetary sum, the courts must consider the person’s financial situation and alternative conditions of release when calculating what the person must pay to satisfy a particular state interest.’”
Under United States v. Salerno, the Supreme Court of the United States maintained that pretrial detention serves as a regulatory measure to protect community safety and “is constitutionally justified by the ‘legitimate and compelling’ government interest in preventing crime committed by arrestees.” Subsequent cases have reinforced the standard of heightened scrutiny as it is applied to pretrial detention.
Because Salerno did not involve a system of monetary bail, the court further analyzed Turner v. Rogers which used a due process analysis, though in the context of the right to counsel in a civil case. The Supreme Court of the United States provided a due process framework whereby courts analyze various factors to determine whether there has been an erroneous deprivation of liberty. Significant for the Humphries court, Turner held that one such factor is “the availability of a set of ‘substitute procedural safeguards.’”
Read together, the court determined that these cases stand for the notion that an accused’s financial constraints must be considered when setting bail. The court must also refrain from imposing bail beyond an accused’s means. If the court must set monetary bail despite the accused’s inability to pay, then the court must determine by clear and convincing evidence that there is no less restrictive alternative measure.
Nearly eight months after the appellate court ruled in In re Humphrey, California Governor Jerry Brown officially signed the Money Bail Reform Act in August 2018 with the Act set to take effect in October 2019. Cash bail will be eliminated and replaced with risk assessment. Local judges will determine, based upon a risk assessment report, whether an accused will be incarcerated pretrial. Further, each jurisdiction will select its own algorithm for assessing risk.
The Act follows the general scheme that low-level offenses will not require risk assessment, or, if there is an assessment, then the accused will be released. For more serious offenses, a risk assessment which tests high—the accused poses a high risk of committing a new offense or fleeing before trial—generally will result in the accused being detained pretrial. Judges maintain discretion to determine pretrial detention or release for those testing in a medium range of risk.
More recently, other jurisdictions have struck down the imposition of money bail. For instance, the Fifth Circuit, in early 2018, upheld the decision of a district court judge finding that the administration of bail in Harris County, Texas unconstitutionally infringed upon due process and equal protection rights. In that case, Judge Rosenthal found that “Harris County’s policy is to detain indigent misdemeanor defendants before trial, violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention.” Following this ruling, Judge Fallon of the Louisiana Eastern District Court found that New Orleans bail system, which kicks back a portion of the bail to the courts, violated due process and equal protection because judges are presented with a conflict of interest when actually setting bail.
There can be no question that bail requires the attention of the legislative branch and the judiciary; however, bail reform, in its present state, which focuses heavily on the use of risk assessment tools, will fall far short of creating an equal criminal justice system. While New Jersey has provided promising statistics demonstrating a reduction in the pretrial detention population, risk assessment tools, coupled with judicial discretion, threatens to replace a system highlighting financial inequalities with one that will spotlight racial and ethnic bias.
Though the public safety assessment makes clear that its formula does not utilize race or ethnicity, its individual facts may implicitly include race or ethnicity. Logically, the public safety assessment weighs the accused’s criminal record to determine potential danger to the public; however, the criminal justice system has historically disfavored minorities and ethnic groups. While race or ethnicity are not at the forefront of the analysis, some factors may be driven by an accused’s race or ethnicity.
California’s Act provides even more uncertainty as each jurisdiction carries the authority to determine the actual risk assessment tool to be used. While the intention is that a panel of experts will provide oversight and approve of procedures, what determines whether risk assessment procedures are appropriate?
Another concern revolves around judicial discretion. As San Francisco Public Defender Jeff Adachi stated: “[The Act] replaces one evil with one that’s even worse in that it gives unbridled discretion and power to judges.” The risk assessment tools provide the judge with information, but the judge still maintains the discretion to determine pretrial release or detention. While the presumption may be in favor of release, judges may attempt to appeal to “law-and-order” voters by detaining more defendants.
The elimination of cash bail presents, theoretically, a system focused on equality; in practice, the new approach’s emphasis on risk assessment has the potential to expose the system’s bias. Rather than adopt a system that incorporates a combination of risk assessment and judicial discretion, reformers should simplify the approach. Create a bail system that eliminates cash bail and focuses on the criminal charge itself rather than an assessment of the accused. For instance, hold that any individual charged with a felony of the second degree, or any individual charged with an offense of violence will be detained pretrial without the option for cash bail; all other offenses will result in pretrial release.
Other questions would need to be addressed; the approach stated above provides only a rudimentary framework. For example, the manner in which the bail system would address multiple charges when those charges fall outside of the detention zone. Under the above framework, pretrial detention rates would certainly decrease, but other interests, including public safety, could also be met by ensuring that individuals charged with more serious offenses, or offenses of violence, are detained pretrial. Further, the system would remove an individual’s demographic background from the pretrial phase.
Bail reform has been the subject of discussion since the 1960s when President Johnson’s Commission on Law Enforcement and Administration of Justice recommended reforming bail to eliminate cash bail; Congress furthered this discussion by passing the Federal Bail Reform Acts of 1966 and 1984. Recently, bail reform has permeated the states as New Jersey and California have both passed reforms reducing or eliminating the usage of cash bail.
While the reforms passed by New Jersey and California present an attempt to reduce inequalities in the criminal justice system, the reforms ultimately replace one biased system with another. Reformers need to simplify the approach by focusing on the criminal charges rather than criminal history and demographic information of the individual; risk assessment may lead to more evident biases in the system. Further, judicial discretion at the pretrial phase should be removed to ensure that the person biases of judges do not influence pretrial release or detention.
 U.S. Const. amend. VIII.
 Udi Ofer, We Can’t End Mass Incarceration Without Ending Money Bail, American Civil Liberties Union (Dec. 11, 2017), https://www.aclu.org/blog/smart-justice/we-cant-end-mass-incarceration-without-ending-money-bail.
 The President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 2 (1967), https://www.ncjrs.gov/pdffiles1/nij/42.pdf.
 Cheryl Corley, President Johnson’s Crime Commission Report, 50 Years Later, NPR (Oct. 6, 2017, 7:00 AM), https://www.npr.org/2017/10/06/542487124/president-johnson-s-crime-commission-report-50-years-later.
 The President’s Commission on Law Enforcement and Administration of Justice, supra note 4, at 132.
 Id. at 131.
 Federal Bail Reform Act of 1966, Pub. L. No. 80-465
 Charles Doyle, Congressional Research Service, Bail: An Overview of Federal Criminal Law 2 (2017), https://fas.org/sgp/crs/misc/R40221.pdf.
 Id. at 3
 See generally 18 U.S.C. §3142.
 Doyle, supra note 10, at 4-5
 Maria VanNostrand, Drug Policy Alliance, New Jersey Jail Population Analysis (2013), https://www.drugpolicy.org/sites/default/files/New_Jersey_Jail_Population_Analysis_March_2013.pdf.
 Pretrial Justice Reform, ACLU of New Jersey, https://www.aclu-nj.org/theissues/criminaljustice/pretrial-justice-reform (last visited Sep. 17, 2018).
 NJLJ Young Lawyers Advisory Board, The Anniversary of Bail Reform, New Jersey Law Journal (Mar. 30, 2018, 2:32 PM), https://www.law.com/njlawjournal/2018/03/30/the-anniversary-of-bail-reform/?slreturn=20180820154516.
 Pretrial Justice Reform, supra note 15.
 NJLJ Young Lawyers Advisory Board, supra note 16.
 Pretrial Justice Reform, supra note 15.
 Stuart Rabner, Chief justice: Bail reform puts N.J. at the forefront of fairness, The Star Ledger (Jan. 9, 2017, 9:33 AM), https://www.njcourts.gov/courts/assets/criminal/starledgercolumn.pdf?cacheID=O187Ejn.
 Vanessa Romo, California Becomes First State To End Cash Bail After 40-Year Fight, NPR (Aug. 28, 2018), https://www.npr.org/2018/08/28/642795284/california-becomes-first-state-to-end-cash-bail.
 In re Humphrey, 228 Cal. Rptr 3d, 513, 516 (Cal. App. 1st Dist. 2018).
 Id. at 519.
 Id. at 519-520.
 Id. at 525.
 Id. at 539-540.
 Id. at 527.
 Id. at 529 (quoting Hernandez v. Sessions, 872 F.3d 976, 992-993 (2017)).
 Id. at 532 (quoting United States v. Salerno, 481 U.S. 739, 749 (1989)).
 Id. at 533.
 Id. at 533-534.
 Id. at 534.
 Id. (quoting Turner v. Rogers, 564 U.S. 431, 444-445 (2011)).
 Id. at 535.
 Romo, supra note 29.
 Abby Vansickle, California Just Abolished Bail. Why Are Proponents So Unhappy?, The Marshall Project (Aug. 30, 2018), https://www.themarshallproject.org/2018/08/30/so-much-for-the-great-california-bail-celebration?ref=collections.
 O’Donnell v. Harris County, 892 F.3d 147, 152 (2018).
 Eli Rosenberg, Judge in Houston Strikes Down Harris County’s Bail System, The New York Times (Apr. 27, 2017) https://www.nytimes.com/2017/04/29/us/judge-strikes-down-harris-county-bail-system.html.
 Daniel Johnson, New Orleans judge is the latest to strike down money bail after class-action suit The Black Youth Project (Aug. 8, 2018), http://blackyouthproject.com/new-orleans-judge-is-the-latest-to-strike-down-money-bail-after-class-action-suit/.
 Public Safety Assessment: Risk Factors and Formula, Laura and John Arnold Foundation, https://www.arnoldfoundation.org/wp-content/uploads/PSA-Risk-Factors-and-Formula.pdf
 Race and the Criminal Justice System, Equal Justice Initiative, https://eji.org/history-racial-injustice-race-and-criminal-justice (last visited Sep 24, 2018).
 Vansickle, supra note 52.