“Liberty and Justice for All”: Equalizing Pretrial Detention for Wealthy and Indigent Defendants

Pretrial detention is affected by many factors. One of those is wealth. While the ability to post bail is a major issue in state systems, the federal system poses a different problem: the ability to pay for mitigating conditions. This has the potential to create a disparate impact between wealthy defendants—who can afford conditions that mitigate findings of flight or danger—and indigent defendants who cannot. There are two solutions: detaining wealthy defendants to avoid disparate release or releasing indigent defendants to avoid disparate detention. This Note argues for the latter. It does so by focusing on the requirement for courts under the Bail Reform Act to release defendants with the “least restrictive” conditions. A framework for release is created by reading “least restrictive” through various lenses. First, reading “least restrictive” through a purposeful lens allows it to become quite expansive, such that almost any set of conditions, as long as they mitigate the necessary findings, allow for release. Second, a practical approach allows “least restrictive” to be read in the context of the Bail Reform Act’s language and mandate to argue for a broad range of conditions. Third, “least restrictive,” read in light of societal considerations, including who bears the burden of detention, opens up more pathways for release and demonstrates the importance of leveling up release instead of leveling down detention. The overall goal of this Note is to provide various analyses to help inform bail decisionmakers’ considerations and to use this new facet of bail reform to advocate for indigent defendants