Works in Progress Group 3: Pretrial Detention and Bail Release

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Session Type: Works-in-Progress

Session Capacity: N/A

Hotel: N/A

Room: Franciscan B

Floor: Ballroom Level

Group #3 Pretrial detention and Bail Release

Punishing the Presumed Innocent
Prithika Balakrishnan, University of California College of Law, San Francisco

One of the paradoxes of the American criminal justice system — a system that holds axiomatic the presumption of innocence — is the staggering number of defendants incarcerated prior to the adjudication of their cases. This growth is relatively new, accounting for ninety-nine percent of the increase in the jail population over the last fifteen years.

Against this backdrop, bail reform in the late 2010s and the COVID-19 pandemic have tangled in unpredicted and, perhaps, unintended ways to expand the technological surveillance of pretrial defendants. Largely left to the purview of extra-judicial actors, increasingly sophisticated Global Positioning System (GPS) surveillance has been depicted by sheriff’s departments as a substitution for physical detention and therefore a welcome, less onerous intrusion on a defendant’s liberty. And with a price tag far below the cost of physical detention, it has been characterized as a win-win. However, a facile analysis that sees it as a “step in the right direction” ignores the ways in which 24/7 GPS surveillance has a net-widening effect by imposing restraints on a far larger percentage of defendants than ever before, emphasizing the racial disparities in our criminal justice system, and, through its increased sophistication and capabilities, erodes fundamental liberty under the guise of criminal justice regulation.

This Article argues for an acknowledgment of the very real harms to fundamental liberty and substantive due process caused by GPS surveillance and for true procedural due process that weighs these harms in a fashion similar to physical incarceration.
Moderator and Discussant: Sarah L Gerwig-Moore, Mercer University School of Law

The Nature and Circumstances of the Offense
Anna VanCleave, University of Connecticut School of Law

Debates about bail-setting procedures often focus on the relevance of various factors to flight and public safety – an individual’s age, criminal history, family connections, community contacts, employment, history of court appearances, previous incarceration, and mental health, for example. But the factor that is often most decisive in bail/detention determinations is “the nature and circumstances of the offense.” Despite the outsized role that this factor plays, courts and scholars have given it very little attention.

Given the fact that defendants are presumed innocent at the time of their bail/detention determinations, how are courts to evaluate the nature and circumstances of the offense? At one end of the spectrum, a court would consider only the statutory charge of the offense or accept as true the allegations in the police report. At the other end of the spectrum, the detention hearing involves a days-long evidentiary hearing with multiple witnesses.

This article explores the ways in which courts have understood their role in assessing the nature and circumstances of the offense, the weight that it plays in bail/detention decision, and the procedural rights of defendants in contesting the prosecution’s allegations when pretrial liberty is at stake. As more legislatures take up bail reform measures and construct preventive detention regimes to replace systems of money bail, the article concludes that robust procedures, including an evidentiary hearing to test the government’s allegations, should be implemented by trial courts and should be a critical feature of bail reform.