Conceptual challenges
Lay, D. P. & De La Hunt, J. (1985). The Bail Reform Act of 1984: A Discussion. William Mitchell Law Review, 11(4), 930-954. Retrieved from https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=2570&context=wmlr
Bail is a fundamental aspect of any justice system. Consequently, various scholars have studied its history and impact on the dispensation of justice. Such scholars include Lay and De La Hunt (1985). According to Lay and De La Hunt (1985), the Bail Reform Act of 1984 marked a fundamental change in the federal bail system in the country. Nevertheless, the two authors assert that it is vital to evaluate the law’s background to understand the contextual reasons for its passage.. Don't use plagiarised sources.Get your custom essay just from $11/page
The precursor to the 1984 law was the Bail Reform Act of 1966. The former law came into force following the recommendations of the Vera Institute under the Manhattan Bail Project in 1961 (Lay & De La Hunt, 1985). The 1966 law set the precedent that if a judge had access to some verified information on an accused person, then they could decide on whether such a person could be released before the onset of their trial.
Since the founding of the country, bail had been an entrenched part of the criminal justice system. Initially, the right was based on provisions of English law. However, the Judiciary Act of 1789 domesticated the right to bail. The law held that all non-capital offenses were bailable while in capital crimes, the discretion to offer bail was left on the judge. Lay and De La Hunt (1985) hold that the Bail Reform Act of 1966 was merely an expansion of the Judiciary Act of 1789 — it expanded the right to bail by proclaiming that non-capital offenders had a statutory right to bail. Despite enhanced access to the right to bail, the 1966 law highlighted significant challenges that necessitated the overhaul of the law in 1984.
Worden, A. P., Morgan, K. A., Shteynberg, R. V., & Davies, A. L. B. (2018). What Difference Does a Lawyer Make? Impacts of Early Counsel on Misdemeanor Bail Decisions and Outcomes in Rural and Small Town Courts. Criminal Justice Policy Review, 29(6-7), 710–735. doi:10.1177/0887403417726133
A study undertaken by Worden, Morgan, Shteynberg, & Davies (2018) reveals the conceptual problems that the 1966 law brought. One of the primary arguments against the law was that it entrenched the money bail system into the country’s justice system. Such an outcome implied that poor individuals could not have equal access to justice — including access to bail, even for non-capital offenses — a discriminatory factor. The Varden v. City of Clanton case law canvassed this issue. The judgment in the case determined that failure to offer bail to a suspect because of their inability to pay constituted a violation of the 14th Amendment to the U.S. Constitution, which grants equal protection.
The second conceptual problem of the 1966 law concerns the role of bondsmen. By being able to gran surety, guarantors determined whether one would be incarcerated or not. Worden et al. (2018) argue that such an outcome effectively granted the bondsmen the powers of a judge — a violation of the letter and spirit of the law. The third vital challenge to the 1966 version of the law was that the increasing number of individuals released on bail that continued engaging in criminal activity. Lay and De Hunt (1985) argue that this outcome arose because the primary threshold as to whether a person could be released pending trial was their level of flight risk. These fundamental problems facing the 1966 version of the law necessitated the changes in 1984.
According to Reitler, Sullivan., and Frank (2013), one of the significant changes to the Bail Reform Act of 1984 was the consideration of an individual’s danger to society. As noted by Lay and De Hunt (1985), a person’s flight risk was the main consideration before granting of bail; however, that did not prevent the bailed individuals from committing a crime. Therefore, Reitler et al. argue that even in non-capital offenses, the 1984 version of the law provides for a detention trial where the “dangerousness and thus detention will be presumed in certain circumstances unless the defendant can overcome the presumption” (p. 364). Therefore, where prosecutors could prove that an arrested person is a danger to the society, then a judge could order for their continued detention before the onset of a trial.
Ryo, E. (2019). Predicting Danger in Immigration Courts. Law & Social Inquiry, 44(1), 227–256. doi:10.1017/lsi.2018.20
The Bail Reform Act of 1984 brought about significant changes to the bail system in the country. The highlight of this law was the United States v. Salerno case law of 1987. The facts of the case are as follows, Salerno, a suspect, was arrested and granted bail. Nevertheless, in a reversal of the decision of a lower court, the U.S. Supreme Court held that a judge could order for a suspect to be held under detention, even for a bailable offense. Especially, if the prosecution believes that the person poses a danger to the society — the suspect was a known member of a crime family (Ryo, 2019). Brunt and Bowman (2018) assert that the case law entrenched provisions of the Bail Reform Act of 1984 in America’s criminal justice system.
Nevertheless, an evaluation of the issue by Ryo (2019) highlights that some conceptual challenges still exist as regards the implementation of the law. Brunt and Bowman (2018) argue that the Bail Reform Act of 1984 and the United States v. Salerno case law may be unconstitutional based on the provisions of the Fifth Amendment to the U.S. Constitution — which prohibits arbitrary detentions. However, Ryo (2019) allays these fears arguing that in the United States v. Salerno judgment, the court determined that public interests override personal interests. Nonetheless, in the future, stakeholders need to develop effective models for predicting the possibility of offending while out on bail. Such a model would ensure that individuals are not denied their right to bail merely based on their perceived danger to the society, an outcome that Brunt and Bowman (2018) support.
References
Brunt, V.A., & Bowman, L.E (2018). Toward a Just Model of Pretrial Release: A History of Bail Reform and a Prescription for What’s Next. Journal of Criminal Law and Criminology, 108(4), 701-776. https://scholarlycommons.law.northwestern.edu/jclc/vol108/iss4/3
Lay, D. P. & De La Hunt, J. (1985). The Bail Reform Act of 1984: A Discussion. William Mitchell Law Review, 11(4), 930-954. Retrieved from https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=2570&context=wmlr
Reitler, A. K., Sullivan, C. J., & Frank, J. (2013). The Effects of Legal and Extralegal Factors on Detention Decisions in U.S. District Courts. Justice Quarterly, 30(2), 340–368. doi:10.1080/07418825.2012.668925
Ryo, E. (2019). Predicting Danger in Immigration Courts. Law & Social Inquiry, 44(1), 227–256. doi:10.1017/lsi.2018.20
Worden, A. P., Morgan, K. A., Shteynberg, R. V., & Davies, A. L. B. (2018). What Difference Does a Lawyer Make? Impacts of Early Counsel on Misdemeanor Bail Decisions and Outcomes in Rural and Small Town Courts. Criminal Justice Policy Review, 29(6-7), 710–735. doi:10.1177/0887403417726133