The Biggest Issue in Bail Today

I almost forgot to link to this document titled, "The Single Biggest Issue in American Bail Reform Today," which is on my website here.

I'm pretty sure that very few people even understand it yet, or they wouldn't be talking so much about distractions like actuarial pretrial assessment tools.

Right now on my desk, I have five different drafts of changes to various state constitutional bail provisions that would dramatically change who is released and detained pretrial in America. Most of the them are pretty horrible, and no American should stand for them. I'm knocking down the ones I can knock down, but it's getting pretty lonely, and I think other states are doing it without me even knowing about them.

Don't you think people should look into this? Learn about this? Help with this?

Anyone out there?

Changing Constitutional Bail Provisions: Pretrial Release and Preventive Detention

I'm just adding this post to, once again, remind everyone that there are certain issues a state must examine before deciding to change a constitutional right to bail provision, just as there are issues that a state must address when changing them. Whatever a state does to a constitutional right to bail provision involves drawing a line between release and detention, and that requires legal justification.

My latest paper provides a model for states that are asking: (1) whether to change their right to bail provision; and (2) if so, to what? More importantly, it shows how to legally justify the change.

Here it is, called "Model Bail Laws." It assumes that the reader will read Fundamentals of Bail and Money as a Criminal Justice Stakeholder first, and those are cited early on in the Model Bail Laws paper.

Once again, if a state changes its right to bail provision, it will need to legally justify it. The only way to do that is to work through the issues presented in the model in the paper. I don't require states to necessarily adopt my model, but courts will require that they justify theirs much like I justified mine. If they don't, the new provisions run a real risk of being struck through any number of legal theories.

Not to get too complicated, but the same issues that go into changing a bail provision will illuminate the fact that many existing detention provisions are currently unlawful, simply because those provisions were likely justified through assumptions that are false today.

The model in my paper is kind of long and a bit complex, but if anyone calls I'll help to explain it.