Legal Framework

The 1966 Federal Bail Reform Act created a presumption of release for defendants on their own recognizance in non-capital cases unless the judge could not adequately assure the defendant’s appearance at trial. In cases where defendants were not released on their own recognizance, judges were to levy the least restrictive conditions of release necessary to assure the defendant’s appearance. The Act also enumerated several offense-related and personal factors judges should consider when determining the conditions of release. The Act was revised in 1984 to include a second, more controversial, criterion for determining release: the defendant’s dangerousness to any specific person(s) or the community. In United States v. Salerno, the Supreme Court upheld the legitimacy of considering dangerousness in pretrial release decisions. Currently, most states and the District of Columbia use both public safety and failure to appear as criteria for determining pretrial release decisions. These criteria are also included in the professional standards of the American Bar Association, the National District Attorneys Association, and the National Association of Pretrial Services Agencies. Some jurisdictions have enacted legislation specifically authorizing the use of preventive detention for defendants considered too dangerous to release pretrial (see Preventive Detention topic).

More recent legislation and case law have focused on reducing reliance on financial conditions of release and increasing reliance on actuarial risk assessment results to inform pretrial release decisions (see Risk Assessment topic). In particular, the constitutionality of using bond schedules has been called into question in a series of class action suits undertaken by Equal Justice Under the Law. In Varden v. City of Clancy, one such case, the Department of Justice took the unusual step of filing a Statement of Interest in the case: “It is the position of the United States that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.” Judgments in the Varden and similar cases have agreed with the Department of Justice position and have resulted in the subsequent discontinuation of the use of bond schedules by courts in the sued jurisdictions.


Key Resources