Dividing Bail Reform

There are few issues in criminal law with greater momentum than bail reform. In the last three years, states have passed hundreds of new pretrial release laws, and there are now over 200 bills pending throughout the states. These efforts are rooted in important concerns: Bail reform lies at the heart of broader recent debates about equitable treatment in the criminal justice system. Done right, bail keeps dangerous individuals off the streets; done wrong, it keeps those with less economic means in jail longer. Some jurisdictions are eliminating money bail. Others are adopting risk assessments to determine who to release. Still others are changing state statutes and constitutions and factors that judges consider in the bail decision. All of these reforms are fundamentally flawed. This is because near all of these bail reform efforts consider all crimes as interchangeable — failing to distinguish minor and serious crimes. This Article is the first to identify this pervasive shortcoming in bail reform and makes two important contributions to the literature. First, it distinguishes between minor and serious crimes, and proposes systematic changes to bail reform based on the seriousness of the crime. It argues that individuals charged with misdemeanors — accounting for the vast majority of criminal cases — should be released presumptively and not detained except in rare circumstances. This right is rooted in history and constitutional rights and even squares with a plain interpretation of current state laws. Second, it shows how dividing bail will matter in important ways, demonstrating that this modest-seeming proposal can have widespread theoretical and practical impact. Indeed this change will dramatically alter the landscape of state bail laws, bail schedules and risk assessments. In addition, it will have serious impact on some of the most important criminal law debates of our time, including equity of application in criminal law, prison overcrowding, and due process protection