Title

Beyond Bail

Document Type

Working Paper

Publication Date

9-3-2020

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Criminal Law & Procedure eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Criminal Justice Research Network; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Financial Economics Network; CJRN Subject Matter eJournals

Abstract

From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of money bail reform movements have altered the landscape of pretrial detention Yet little attention has been paid to the emerging reality of a postmoney 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 money bail is problematic and can inject additional bias into the pretrial system brbrIn theory nonmonetary conditions offer increased opportunities for release over monetary bail and can be narrowly tailored to accomplish specific goals Yet the proposition that such 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 condition is necessary to avoid the risk or risks that fuel them Defendants "“ many of whom are unrepresented at these hearings "“ may be illequipped financially or otherwise to comply with such conditions Noncompliance may place defendants at risk of either additional criminal charges or future pretrial detentionbrbrThis Article argues that the reduction or eradication of money bail alone has not and will not ensure a fair and unbiased system of pretrial detention nor will it ensure that poor and marginal defendants will benefit from pretrial release Rather these reforms have shifted the burden of release from paying money 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

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