Making bail

Bail and federal statutes

This is the fourth installment in the Making Bail series. You can find links to the prior installments here.

IN THE LAST installment, we explored the rise of individual rights and what the U.S. Constitution has to say about bail, which, as it turns out, is very little. Much of bail in the U.S., then, is regulated downstream of the U.S. Constitution by statutes, court cases, state constitutions and court rules. In this piece, we will focus on federal statutes regulating bail.

The first United States federal statute regulating bail came in the first Congress. In 1789, Congress passed the Judiciary Act, which provided that for “all arrests in criminal cases, bail shall be admitted, except where punishment may be death.” This act, like the U.S. Constitution, was consistent with long-standing bail practices dating back to the First Statute of Westminster in the year 1275.

Aside from the rise of the commercial bail bond industry, U.S. bail law remained stable again for the next 175 years. Things began to change in the 1960’s, however. Throughout the 1960’s and thereafter, U.S. federal statutes were susceptible to political winds, vacillating in the eternal battle between order and chaos, between individual liberty and dangerousness.

In 1961 the Vera Foundation (now called the Vera Institute of Justice) along with NYU Law School conducted a study called the Manhattan Bail Project. This project was designed to provide information to judges to encourage them to release defendants pre-trial on their own recognizance. The program in New York City was quickly replicated in cities across the U.S. Observing the bail reform practices in U.S. urban centers, U.S. Attorney General, Robert F. Kennedy, in 1963 instructed all U.S. Attorneys to recommend the release of federal defendants on their own recognizance in every practicable case. Kennedy also convened a National Conference on Bail and Criminal Justice in 1964, where he said:

Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. The factor is simply money. How much money does the defendant have?”  

All this activity led to the passage of the United States Bail Reform Act of 1966. That act explicitly stated, contrary to hundreds of years of experience, history and tradition, that “the sole purpose of bail laws must be to assure the appearance of the defendant.” In this spirit, the statute did many things, including creating a presumption in favor of release on recognizance and permitting judges to place release conditions on a defendant, other than money bail, to assure appearance. The statute also specifically prohibited judges from considering dangerousness as a factor, except in capital cases.

Riding this political wave, a version of the 1966 U.S. Bail Reform Act was adopted in 36 states and the District of Columbia by 1971. Soon after these bail reform laws went into effect, the consequences of ignoring dangerousness surfaced.

With the passage of the 1966 Federal law and its implementation in Washington D.C., the District became a place where the effects of the bail reform law were most closely studied. An organization was established for that specific purpose, The Judicial Council’s Committee to Study the Operation of the Bail Reform Act in the District of Columbia, also called The Hart Committee. By 1969, the Catholic University Law Review published a paper by Warren L. Miller discussing the findings of the Hart Committee. Miller notes that in the first few weeks after defendants began to be released on their own recognizance without regard to dangerousness, “three separate homicides and a related suicide were attributed to persons released on bond.” Later, the Hart Committee reported that “crime committed by persons on bail in the District of Columbia go as high as 70 percent, and crime charged against persons released on bail continues at a significant level in the District of Columbia.” The Hart Committee’s experience matched the experience of those areas around the country where similar bail reform was enacted.

Things got so bad in Washington D.C. that local officials began lobbying Congress for help. In 1970, Congress passed a statute authorizing preventive detention in Washington D.C. This was the nation’s first preventive detention statute. (though this was the first preventive detention statute, the Constitution had always allowed preventive detention—bail statutes were an exception to this).   

By the 1980’s, the public was fed up with rising crime, fueled, to some degree, by the 1966 Bail Reform Act. In 1980, Ronald Reagan was elected in a landslide, campaigning, in part, on a public safety agenda. This public sentiment continued throughout Reagan’s term, leading to the passage of the 1984 Crime Control Act. The Crime Control Act included bail reform via the 1984 Bail Reform Act.    

The 1984 Bail Reform Act drew on the lessons learned after the passage of the 1966 Bail Reform Act. The 1984 act corrected for a glaring flaw in the 1966 Bail Reform Act. Where the ’66 law prohibited judges from considering dangerousness, the ’84 law required it when setting bond or other release conditions. Further, the 1984 reform adopted preventive detention, relying on the 1970 Washington D.C. preventive detention statute as a model. Under this new federal law, courts could detain certain felons pre-trial without bail if the court found, following a hearing, that the Government proved “by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.”   

If you read the introduction to this series, you learned about the ancient Samarian gods, Tiamat, the goddess of chaos, and Marduk, the god of order. The 1966 law was the chaos god, Tiamat. The 1984 law was the order god, Marduk. The 1966 Bail Reform Act was a wild swing toward the chaos end of the spectrum, and the 1984 Bail Reform Act was a march back toward order. These acts influenced not only federal law, but court cases, state statutes, and state court rules across the nation. The swings in these federal bail practices were mirrored by the states, and the reverberation of these political and legal actions will be the topics of the next installments in this series.