The right to physical liberty is one of the foundational principles of the United States Constitution. The U.S. Supreme Court is unequivocal in stating that “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Our system of pretrial justice must uphold this fundamental principle, while also enhancing community well-being and safety.
The pretrial phase of a case begins at a person’s first contact with law enforcement and ends at case disposition. Final outcomes might include dismissal of charges, a guilty plea, or the case proceeding to trial, where the person is found innocent or guilty. Every decision point during the pretrial phase is an opportunity to improve your system and achieve your pretrial goals. Unfortunately, pretrial systems are not working as they should.
Financial release conditions, or money bond, are the greatest challenge to fair, equitable, and effective pretrial justice. They keep people in jail based on a lack of wealth without improving safety or court appearances.
Racial disparities undermine the integrity of our criminal legal system. Pretrial improvement efforts must center racial equity within a comprehensive approach to advance pretrial justice.
People impacted by the criminal legal system bring valuable expertise to policymaking. Engaging the community results in better policies and stronger communities.
Data is vital to measuring performance and determining the success or failure of changes to policies and practices.
Pretrial systems are complex, and the term “reform” can have different meanings across jurisdictions. This FAQ can help you learn more about pretrial justice.
People who use the phrase “bail reform” frequently refer to changes that reduce or eliminate the use of money bond and decrease unnecessary pretrial detention. Bail reform typically focuses on financial conditions of pretrial release (sometimes called “money bond” or “cash bail”) because they often result in detention based on a person’s wealth or access to money. APPR uses the phrases “pretrial advancement” or “pretrial improvement,” rather than “bail reform,” because improving pretrial systems requires more than a single fix, like eliminating monetary bonds. Sustained and measurable improvement requires a comprehensive approach to the pretrial system as a whole, from the first point of contact with law enforcement through case disposition.
Bail is the process of releasing people who have been arrested and charged with crimes. The U.S. Supreme Court is unequivocal that during the pretrial phase, release before trial must be the “norm,” and detention the “carefully limited exception.” The presumption of innocence and the right to physical liberty are foundational in the U.S. Constitution. Courts can, however, require people to meet “conditions of release.” Judges may impose conditions to reasonably assure that a person will return to court and remain law-abiding. Common conditions include pretrial supervision, location monitoring, and no-contact orders. Financial conditions of release, often called money bonds, are so commonly used in the United States that they have, wrongly, become synonymous with “bail.”
Money bond is an amount of money a person must pay to get out of jail. If you can’t afford to pay, you stay in jail. If you can pay — even if you are a serious risk to community safety — you’re released from jail. Multiple studies have concluded that any amount of money bond does not improve court attendance or law-abiding behavior.
Money bond is used for two purposes: as a condition of release intended to encourage court appearance and arrest-free behavior; and to detain someone by setting an unaffordable bond amount. Money doesn’t achieve either of these goals reliably or safely. Instead of using money as a condition of release, systems can use supportive pretrial services. These services, and other non-financial conditions, can help people be successful, attend their hearings, and remain out of trouble. Systems that replace money as a detention mechanism create a clear and transparent process for preventive detention. This establishes a legal framework for judges to make informed and intentional decisions about whether a person remains in jail or is released before trial.
Detaining people who are not dangerous but can’t afford to pay a money bond is unfair, creates worse outcomes, and is costly to the jurisdiction, community members, and the person detained. Pretrial detention increases the likelihood that a person will be arrested for a new crime in the future, can lead to lost jobs and housing, and can cause family instability. Pretrial detention is also expensive, costing state and county governments at least $14 billion each year. Over 70 percent of people in jail have not been convicted and are presumed innocent, and pretrial detention accounts for two-thirds of the growth in the U.S. jail population in the 21st century.
The Bail Reform Act is a federal law that was passed by the U.S. Congress in 1966 and revised in 1984 to clarify language and limitations on decisions about pretrial detention, release, and conditions of release and other related activities in the pretrial phase. The act applies only to the federal system and doesn’t impact most local pretrial decisions; each state has its own set of laws and rules that govern local pretrial decisions. States and counties are, however using ideas from the federal system — like pretrial services and intentional detention hearings — in their pretrial advancement efforts.
Across the U.S., cities, counties, and states are working to create more effective, fair, and efficient pretrial systems. Reforms look different from one jurisdiction to another, and “bail reform” can have very different meanings from one location to another.
Illinois, New Jersey, New Mexico, and New York have made significant changes to their pretrial systems within the last decade or so. Illinois, New Jersey, and New Mexico instituted intentional detention hearings and other comprehensive pretrial improvements. New York’s version of reform eliminated the use of money as a condition of release in 90 percent of all arrests.
APPR envisions pretrial justice systems where:
When you connect with APPR, you get more than inspiration. You gain practical knowledge to bring data-informed pretrial practices to your community.