Public Policy Brief

Rethinking Bail: Equity and Efficiency in Pretrial Justice

Olivia Burd

Introduction:

Policymakers and other individuals have recently begun taking a closer look at the United States bail policies. This further investigation has resulted in the desire to create some bail policy reforms. Currently, many prisoners have their bail set at an amount that is far more than they can afford. According to the U.S. Commission on Civil Rights, “more than 60% of defendants are detained pretrial because they can’t afford to post bail” (2022). As a result these individuals must either stay in jail longer or make a financial decision that they may never recover from. Policymakers are now questioning if this is a fair system or if there is a better way to approach the issues with bail policies across the nation.

The issue stems from the fact that a poor person and a rich person could commit the same crime and the impoverished person would remain in prison awaiting trial, whereas, the wealthy person could buy freedom while awaiting trial. To avoid this harsh reality, the current cash bail policies need to be reformed in a way that makes them equitable and reasonable across the country. This policy brief will explore the options for reform.

Context/Scope of Problem:

Bail began being used in Colonial America. Back in 1776, when colonists declared independence, they based law practices on English law, which used the bail system (PBUS). At the time, the standard guideline was that “statutes defined which offenses were bailable while the constitution protected against abuses of those definitions” (PBUS). Since 1776, there have been many acts and laws, both state and federal, that have changed the nature of bail and how it’s decided. However, the Bail Reform Act of 1966 was the first major change in federal bail law.

At that time, one of the most important considerations when determining if someone was going to be detained pretrial (outside of those charged with capital offenses) was if the defendant would show up at their court proceedings. To ensure this, a list of conditions was created to guarantee appearance, including “restrictions on travel, execution of an appearance bond (refundable when they appear), and execution of a bail bond with a sufficient number of solvent sureties” (PBUS). Though this seems like a thorough set of guidelines, the risk a defendant poses to others is not considered when determining if they should be released or detained.

According to the Bail Reform Act of 1966, the only time that a risk assessment was done was for those charged with capital offenses. Therefore, if someone committed a capital offense, a judge would determine their release or detainment based on if they are a danger to society. This was a major issue with this act because it meant that the violent criminals who did not commit a capital offense could potentially be released based on if they will attend court proceedings rather than if they pose a risk to the community.

To combat this problem, the District of Columbia Court Reform and Criminal Procedure Act of 1970 “allowed judges to consider dangerousness to the community as well as risk of flight when setting bail in noncapital cases” (PBUS). These guidelines made the bail or no bail decision process more fair for defendants. However, it still failed to consider if bail itself was a fair process.

Policy Alternatives:

With bail policies being scrutinized heavily, there are adjustments and changes that are currently taking place. The first hopeful alternative was the Federal Bail Reform Act of 1966 which encouraged inmates to be released under the least restrictive terms, specifically not involving money. Despite this effort, states did not comply, and there were still ethical concerns regarding bail policies.

In 1984, the United States decided that the Federal Bail Reform Act should be upheld, but adjusted to be based on if a person was deemed to be a risk to society upon release. If the judge believed that the person was a risk, there would be a hearing to prove why this person should remain detained. States ignored this reform because it did not mandate compliance, but rather, it put pressure on individual states to make changes to their bail policies.

In 1984 most states chose not to reform their bail policies, but now, in 2025 policies are changing. In recent years, several states have taken steps to abolish cash bail, with some completely eliminating it. In 2023, Illinois became the first state to completely abolish cash bail. The new law is known as the Safety, Accountability, Fairness, and Equity-Today (SAFE-T) Act. This act states that “all persons charged with an offense shall be eligible for pretrial release” (EJI, 2023). However, it also states that a felon may be ordered to be detained in a prison. This act specifies that a person can only be detained if the courts agree that the defendant “poses a real and present threat to the safety of any person or persons in a community” (EIJ, 2023). Furthermore, a person who is being charged with an enumerated felony offense is more likely to be detained during pretrial. Enumerated felonies are the most serious of felonies.

These already implemented policies have potential to reform the bail process in the United States, but not enough states have adopted them. For the states that did, they were successful and made an impact in encouraging other states to follow suit. If a Bail Policy Reform was made at a national level and was mandated, it would result in a much more widespread and successful bail policy reform.

Policy Recommendations:

The policy that I am recommending will create a pretrial release system at the federal level, and therefore mandating that every state needs to comply. The policy will be similar to the one implemented by Illinois on September 18, 2023, however, the major difference is that for this policy every state would need to abolish the cash bail system. Instead, there will be an assessment criteria to determine if an individual presents a risk to the community, if deemed safe they will be released from jail as they await trial. Those who do not fit the criteria will be held while they wait for trial. The policy's goal is to protect neighborhoods and communities while also not overpopulating prisons. The number of people detained pretrial increased by 400% between 1970 and 2015, mostly as a result of detainment while awaiting trial (USCCR).

The individuals not held for pretrial do not return to their normal lives. Instead, they must abide by a strict set of rules. Most of those who are not detained will either be on house arrest or some form of GPS tracking. The criteria will need to be created on a federal level, to ensure that all states implement the same guidelines for release. Some of the necessary criteria that needs to be considered is whether or not the individual is a threat to themselves or their community, whether they will try to flee before their trial, and the overall nature of their crime.

References:

About bail - history of bail - PBUS. Professional Bail Agents of the United States. (n.d.). https://www.pbus.com/page/14

Beiers, S. (2022, February 15). Bail reform. American Civil Liberties Union. https://www.aclu.org/issues/sm... is bail reform?. Advancing Pretrial Policy & Research (APPR). (2025, February 19). https://advancingpretrial.org/pretrial-justice/the-pretrial-status-quo/what-is-bail-reform/#:~:text=Bail%20reform%20typically%20focuses%20on,wealth%20or%20access%20to%20money.

Urell, A. (2023, September 20). Illinois becomes first state to abolish cash bail. Equal Justice Initiative. https://eji.org/news/illinois-becomes-first-state-to-abolish-cash-bail/

U.S. Commission on Civil Rights Releases Report: The civil rights implications of cash bail. U.S. Commission on Civil Rights. (2022, January 20). https://www.usccr.gov/news/2022/us-commission-civil-rights-releases-report-civil-rights-implications-cash-bail