CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, March 9, 2018

Myhand on Bail Schedules and Disparate Impact

The presumption of innocence is not well illustrated in the age-old and widespread use of monetary bail systems by most jurisdictions throughout the United States. In fact, whether a person is detained in jails prior to the final disposition of the case, is not likely to be dependent on the strength of the government’s case toward proving the accusee’s guilt. Rather, pre-trial detention is much more dependent on whether the accusee has the means to pay an amount of money determined by a court. 

As the calls for bail reform resurges, many legal professionals are looking for alternatives to monetary bail systems that often result in overcrowded jails, tainted adjudications of the offenses, and devastating outcomes for the accusee. However, the problem does not appear to be in the foundational structure of the monetary bail systems. As with many other problematic areas of the criminal justice process, the flawed execution of pretrial proceedings by many jurisdictions makes the task of preserving the presumption of innocence nearly impossible. Justice requires the judiciary to act as gatekeepers by ensuring that the rights of accusees are not violated. 

This Note explores the common practice of implementing bail schedules without an “individualized” inquiry into whether the accusee poses a danger of committing a violent offense and whether the accusee is likely to appear to the future proceedings of the case. Part I focuses on the constitutional and statutory requirements regarding bail as well as the impact of the Supreme Court’s jurisprudence on bail practices. Part II focuses on the current bail practices in state courts in Alabama with a brief discussion of the bail practices in Randolph County which is currently being reviewed in federal class action litigation. This Note further explores the responsibility of the judiciary in pretrial confinement proceedings based on the rules regarding the professional responsibility of the judiciary. The Note also highlights the disproportionate harm caused to African-Americans and Hispanics accused of criminal offenses. This Note concludes with a discussion of the importance of preserving the presumption of innocence for individuals accused of a crime as well as how monetary bails systems undermine that presumption.

| Permalink


Post a comment