NEW APPROACH TO BAIL RELEASE - THE PROPOSED FEDERAL CRIMINAL CODE AND BAIL REFORM

• NCJ Number: 66977
• Journal: Fordham Law Review Volume: 48 Issue: 4 Dated: (MARCH 1980) Pages: 423-436
• Author(s): E M KENNEDY
• Date Published: 1980
• Length: 14 pages
• Corporate Author: Fordham University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THIS ARTICLE PRESENTS A BRIEF HISTORY OF FEDERAL BAIL LAWS, THE DEBATE CONCERNING BAIL REFORM, AND AN ALTERNATIVE APPROACH TO THE BAIL RELEASE OF THE SUSPECTED OFFENDER (SENATE BILL 1722).

Abstract

THE PRESENT BAIL SYSTEM NEITHER GUARANTEES SECURITY TO SOCIETY NOR SAFEGUARDS THE RIGHTS OF THE ACCUSED. HISTORICALLY, BAIL HAS BEEN VIEWED AS A PROCEDURE DESIGNED TO ENSURE DEFENDANTS' APPEARANCE AT TRIAL BY REQUIRING THEM TO POST BOND OR, IN EFFECT, MAKE A PROMISE TO APPEAR. MOREOVER, FEDERAL STATUTES HAVE MANDATED THAT BAIL SHOULD BE ALLOWED IN NONCAPITAL CASES. HOWEVER, THE SYSTEM FAVORS SUSPECTS WHO CAN AFFORD TO PAY BAIL, WHILE INDIGENTS REMAIN IN JAIL PENDING TRIAL. IN AN ATTEMPT TO FIND AN ALTERNATIVE BAIL PROCEDURE THAT WOULD LESSEN THE ALMOST UNIVERSAL DEPENDENCE ON COMMERCIAL BAIL BONDS, A NUMBER OF PILOT PROJECTS WERE UNDERTAKEN. IN ONE PROJECT, 99 PERCENT OF THOSE RELEASED ON THEIR OWN RECOGNIZANCE RETURNED TO COURT AS REQUIRED. DESPITE PASSAGE OF THE BAIL REFORM ACT OF 1966 WHICH ATTEMPTED TO NARROW THE DISCREPANCY IN PRETRIAL RELEASE OPPORTUNITIES FOR RICH AND POOR, DEBATE CONCERNING APPROPRIATE BAIL PROCEDURES HAS INTENSIFIED. ONE APPROACH, INCORPORATED IN MOST FEDERAL AND STATE STATUTES, SPECIFIES THAT JUDGES MAY CONSIDER ONLY THOSE FACTORS NECESSARY TO SECURE THE DEFENDANT'S APPEARANCE AT FUTURE COURT PROCEEDINGS IN SETTING BAIL. HOWEVER, OTHERS CHAMPION A SUBSTANTIAL MODIFICATION OF THE SYSTEM TO PERMIT THE COURT TO CONSIDER COMMUNITY SAFETY IN DETERMINING WHETHER BAIL SHOULD BE GRANTED. THE REFORM MOST OFTEN ADVANCED AS AN ALTERNATIVE TO THE EXISTING SYSTEM IS PREVENTIVE DETENTION, WHICH MAY BE UNCONSTITUTIONAL. ANOTHER OPTION IS SENATE BILL 1722 WHICH EMPLOYS A TWO-STEP ANALYSIS. THE FIRST STEP INCORPORATES EXISTING LAW BY REQUIRING DETERMINATION OF BAIL RELEASE TO BE BASED ON THE LIKELIHOOD OF THE DEFENDANT'S APPEARANCE AT TRIAL. ONCE A DECISION IS MADE TO RELEASE A DEFENDANT ON BAIL, THE COURT THEN DETERMINES WHETHER RELEASE WILL ENDANGER THE COMMUNITY; IF SO, RELEASE CONDITIONS MAY BE IMPOSED. FOOTNOTES ARE PROVIDED. (LWM)