States across the country are taking a hard look at their cash bail systems, in most cases with an eye toward adopting practices that are fairer and keep pretrial incarceration to the minimum needed to protect public safety. While much of the discussion of these reforms tends toward the political, it’s essential to focus on the policy side of things, Lisel Petis, a former prosecutor and resident senior fellow for criminal justice and civil liberties at the R Street Institute, a Washington, D.C.-based think tank, argues in an opinion piece in Governing. Despite some fear-mongering rhetoric amid post-COVID spikes in crime and pushback on reforms previously enacted, modernizing and improving the bail system does not have to be seen as soft on crime, Petis argues. Rather, when done well, it follows the expertise of criminal justice professionals and research, leading to safer communities, better use of government resources and protection of our freedom. The use of bail has changed many times over the centuries, shifting with updates to legal frameworks and changing societal norms. As with most laws, there have been good and bad practices that have shaped today’s bail systems.
In a new, one-of-a-kind analysis of bail laws across all 50 states, R Street found several promising practices and emerging trends that can serve as guideposts to shape the future of America’s pretrial system. Rethinking bail requires smart evidence-based changes aimed at creating a fairer and more effective system, and focusing on policies that prioritize constitutional protections over pre-emptive punishment and reject preferential treatment for the wealthy. It also means understanding how pretrial laws compare across states and identifying tools that can effectively address public safety without making jails more dangerous or contributing to future criminality. One promising trend, referred to as “least restrictive” or “onerous conditions” policies, limits the burden of pretrial measures to only what is needed to practically mitigate risk. However, the success of these policies relies on the availability of resources, such as electronic monitoring or pretrial services for defendants. Notably, some states have gone a step further with efforts to ensure that release requirements are tailored to individuals’ circumstances.
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