Dangerous Defendants

Abstract

Bail reform is gaining momentum nationwide. Reformers aspire to untether pre-trial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but it also forces the criminal justice system to confront a difficult question: what statistical risk that a person will commit future crime justifies short-term detention - if any does? What about lesser restraints on liberty, like GPS monitoring? Although the tum to actuarial risk assessment in the pretrial context has raised concern in some quarters, the debate so far has largely ignored this foundational question.