Volume 25

Condemned to Repeat History? Why the Last Movement for Bail Reform Failed, and How This One Can Succeed

by Rachel Smit

The Bail Reform Act of 1966 was the signature achievement of a nationwide movement for pretrial reform, but within a decade, a “tough-on-crime” counter-movement had peeled back that movement’s advances. In fact, this was relatively easy for the tough-on-crime movement, because the 1960s reforms did not eliminate the bail industry and did not prohibit judges from setting money bail. Instead, the 1960s reforms generally encouraged judges to be lenient in setting bail, which the counter-movement largely ended through laws encouraging pretrial detention and high bail.1

Over the past few years, a new pretrial justice movement has emerged. Advocates are telling the stories of the lives pretrial detention has needlessly ruined. Yet this movement is beginning to make the same mistakes as the 1960s movement. Like the earlier movement, it is in some cases opting for politically-expedient reforms that encourage judges to release some low-risk defendants pretrial. History has indicated such half-measures are unlikely to succeed in the long run and can even re-entrench existing class and racial disparities in the bail system.2 The current movement, as this Note argues, can still succeed if it can unite in demanding comprehensive reforms that eliminate money bail. The movement must work to end pretrial incarceration for all but serious violent crimes, create programs to supervise released defendants, and ensure defendants get the treatment or help they need to not reoffend.

This note will proceed in three parts. Part I will describe the 1960s movement for bail reform, its successes, why it largely failed, and what can be learned from its failures and its few enduring successes. Part II will turn to the modern movement. It will describe the large, diverse coalition that makes up the modern movement and what that coalition has already achieved, including victories through litigation and legislation that have reformed the pretrial practices of jurisdictions across the country. It will then analyze the greatest challenge the movement faces: agreeing on and implementing a strategy that will achieve enduring positive change. Part III will describe how this movement can avoid repeating its forerunner’s mistakes, build on its successes, and achieve lasting pretrial justice.

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2. See HARVARD CRIMINAL JUSTICE POLICY PROGRAM, MOVING BEYOND MONEY: A PRIMER ON BAIL REFORM 15 (2016), http://cjpp.law.harvard.edu/assets/FINAL-Primer-on-Bail-Reform.pdf.