Beyond Bail

Abstract

From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of monetary bail, reform movements have altered the landscape of pretrial detention. Yet, reform movements have paid little attention to the emerging reality of a post-monetary-bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on nonmonetary conditions of release. These nonmonetary conditions can be problematic for many of the same reasons that monetary bail is problematic and can inject additional bias into the pretrial system.

In theory, nonmonetary conditions offer increased opportunities for release over monetary bail and can be narrowly tailored to accomplish specific goals. Yet, the proposition that nonmonetary conditions accomplish their purported goals is untested and unsettled. Pretrial release conditions are often imposed at the conclusion of a remarkably brief pretrial hearing and in a near rote fashion, with little or no evidence that the conditions are necessary to avoid the risk or risks that fuel them. Defendants-many of whom are unrepresented at these hearings-may be ill-equipped, financially or otherwise, to comply with these conditions. Noncompliance may place defendants at risk of either additional criminal charges or future pretrial detention.

This Article argues that the reduction or eradication of monetary bail alone has not, and will not, ensure a fair and unbiased system of pretrial detention, nor will it ensure that poor and marginalized defendants will benefit from pretrial release. Rather, these reforms have shifted the burden of release from paying monetary bail to paying fees for a laundry list of pretrial release conditions. If pretrial detention reform is to achieve meaningful results, it must address not just the most apparent barrier to release-the fee charged in the form of bail-but all barriers that promote pretrial incarceration and impose unjustified burdens on defendants awaiting trial.