Timothy R. Schnacke, Claire M.B. Brooker, Michael R. Jones
Even if you aren’t a criminal lawyer, you may have noticed that something significant is happening in the criminal legal field. The failure last year of Proposition 102, which was proposed by for-profit bail bondsmen in Colorado to force judges to add secured money to the bail bonds of nearly all criminal defendants, was perhaps the first outward sign that jurisdictions in this state were considering, and in some cases implementing, improvements to the way our courts administer bail. In fact, jurisdictions across the country are currently doing the same thing, in a wave of legislation, policy changes, and various projects aimed at improving pretrial justice.
In 1993, Dr. John Goldkamp, the esteemed researcher from Temple University, correctly noted that the United States had completed two generations of bail reform since the country’s inception. The first, in the 1960s, used the pioneering work of the Vera Foundation’s Manhattan Bail Project to encourage using the least restrictive, non-financial conditions of release, as well as presumptions favoring release on recognizance based on information gathered concerning the defendant’s community ties to help assure court appearance. The second, in the 1980s, focused on the need to assess the risk to public safety as a constitutionally permissible purpose of bail. Both generations resulted in radical departures from the way bail had been administered previously, and both resulted in changes in federal and state statutes, and sometimes in state constitutions. Today, justice systems across the country are beginning what many hope will be a final attempt to correct specific obstacles to pretrial justice, which endeavors to bring meaning to the presumption of innocence and other core constitutional rights and principles triggered by an arrest. Together, we are beginning the third generation of bail reform.
This generation, which aims primarily to reduce the deleterious effects of money at bail and to focus more on transparent and rational processes, such as assessment and supervision to address a particular defendant’s pretrial risk, finds its genesis from a number of interrelated factors. First, over the last eighty years, a body of research literature has been amassed to a point where both criminal justice professionals and ordinary citizens feel less comfortable with bail’s status quo and more comfortable with change. For several decades this research has pointed in a single direction, a direction that has been documented, embraced, and/or standardized by multiple national organizations, such as the American Bar Association, the National Association of Pretrial Services Agencies, the National District Attorneys Association, and the National Association of Counties. Most recently, the International Association of Chiefs of Police issued its report, Law Enforcement’s Leadership Role in the Pretrial Release and Detention Process, in which it used the research to call for greater police involvement to help “create rational and transparent release programs.” Indeed, the increasing call for the use of “evidence based” or “best” practices in the field of pretrial release testifies to the fact that these practices, based on this body of research, do exist and can be implemented.
Second, much of that research continues to demonstrate that current bail practice is deficient. Many states, including Colorado, are still deeply ingrained in the traditional “money bail” system. That system, which focuses on setting often arbitrary amounts of money in the hope of reducing pretrial risk, represents the antithesis of the type of system contemplated by both the research in the field and the national best-practice standards. In short, the traditional money bail system is one that is over-reliant on money. Some of its hallmarks include monetary bail bond schedules, overuse of secured bonds, a reliance on for-profit bail bondsmen, financial conditions set to protect the public from future criminal conduct, and financial conditions set without consideration of the defendant’s ability to pay or without consideration of non-financial conditions that would likely reduce risk. There are numerous deficiencies with the traditional money bail system, but the two most frequently cited are that: (1) it often allows higher-risk, sometimes very dangerous defendants to buy their way out of jail; and (2) it often keeps lower-risk but poor defendants in jail, even though community supervision would reasonably manage any perceived risk at a fraction of the jail’s costs. The traditional money bail system is deficient legally, economically, and socially, and virtually every neutral and objective bail study conducted over the past eighty years has called for its reform.
Third, people’s attitudes about crime and incarceration are changing. In 2002, the Peter D. Hart Research Associates reported a “fundamentally different perspective” when assessing public opinion about crime and criminal justice, with most people polled endorsing more “balanced” and “multifaceted” solutions like crime prevention and rehabilitation, versus traditional “tough on crime” solutions that focus on punitive approaches such as increased incarceration. In 2009, a Zogby International poll found that 77% of respondents believe alternatives to incarceration do not decrease public safety, and more than half of those polled believed that those alternatives ultimately decrease costs to state and local governments. According to the National Institute of Corrections, that poll “reflects the public’s current expectation that, among others, the current rate of offender failure is unacceptable; spending should be increased on approaches proven to reduce crime; and criminal justice professionals should rely on research in their decision making.”
The fourth interrelated factor sparking the current generation of bail reform is related to budgets. As local governments have been charged with providing more essential services with less money, justice systems have searched for strategies to reduce costs without sacrificing public safety. Many of these systems have looked to the area of pretrial release and found, based on the literature mentioned above, that they could adopt proven, research-based practices that could also save money. As those local systems showed some measure of success, other jurisdictions, even those without budget issues, became more comfortable with change. Recognition of Colorado’s budgetary constraints is reflected in House Bill 07-1358, which created the Colorado Commission on Criminal and Juvenile Justice (CCCJJ), and which declared, among other things, “It is in the interest of the people of the state of Colorado to maintain public safety through the most cost-effective use of limited criminal justice resources.” To the Commission, this involves following research and evidence-based best practices (including those found in the field of pretrial release) to make its policy and practice recommendations.
Finally, in just the last decade there has been a significant increase in the number of individuals and groups striving to make sense of the research and to synthesize it for criminal justice system consumption. To the extent that education itself tends to foster reform, these groups endeavor to educate criminal justice system leaders about the research underlying the deficiencies in current bail practice, the possibilities for change, and the likely outcomes if particular changes are made.
The third generation of bail reform has not come easily. As with the other two, significant opposition – mostly from for-profit bail bondsmen and large insurance companies, but at times from uninformed or unmovable judges and lawyers – sometimes hinders honest efforts at improvement. Nevertheless, it is an unstoppable wave, and one that will undoubtedly make headlines in every jurisdiction that it touches.
On May 31, 2011, the United States Attorney General will be holding a National Symposium on Pretrial Justice, the first such national conference since Robert Kennedy held a similar event in 1964. The 1964 meeting led to substantial changes in law and policy at both the federal and state levels, most of which exist to this day, and this year’s symposium promises to be equally influential. Several persons who have been active in facilitating improvements in the area of bail and pretrial release in Colorado have been asked to attend, and they will undoubtedly bring knowledge of the many local pretrial projects to the national reform movement.
 See John S. Goldkamp, Judicial Responsibility for Pretrial Release Decisionmaking and the Information Role of Pretrial Services, 57 Fed. Probation 28, 34 n.3 (1993).
 See Amer. Bar Ass’n, ABA Standards for Criminal Justice, Pretrial Release (3rd ed. 2007) (recommending less reliance on money and more reliance on evidence based practices, such as risk assessment and pretrial supervision).
 See Nat’l Ass’n of Pretrial Servs. Agencies, Standards on Pretrial Release (3rd ed 2004) available at http://www.napsa.org/publications/2004napsastandards.pdf (recommending same).
 See Nat’l Dist. Att’ys Ass’n, National Prosecution Standards 55 (3rd ed. 2009) (stating a “clear preference for release of defendants pending trial” and recommending release on least restrictive conditions).
 See Nat’l Ass’n of Cntys., American County Platform and Resolutions 8–9 (2010-2011), available at http://www.naco.org/legislation/policies/Documents/2010-11%20American%20County%20Platform%20and%20Resolutions.pdf (favoring non-financial release and recommending policies and procedures aligned with state laws and national professional standards).
 Int’l Ass’n of Chiefs of Police, Law Enforcement’s Leadership Role in the Pretrial Release and Detention Process 13 (2011) available at http://www.theiacp.org/LinkClick.aspx?fileticket=32EOi2UojO4%3d&tabid=87.
 For insight into how the “money bail system” came to be in America, see Timothy R. Schnacke et al., The History of Bail and Pretrial Release (Pretrial Justice Inst. 2010), available at http://www.pretrial.org/HistoryBailDocuments/History%20of%20Bail%20(2010).pdf. The history shows that while money bail may have made sense in the Anglo Saxon criminal justice system – comprised of monetary penalties for nearly all bailable offenses – the logic eroded once those monetary penalties were largely replaced with corporal punishment and imprisonment.
 Peter D. Hart Res. Assocs., Inc., Changing Public Attitudes toward the Criminal Justice System: Summary Findings (2002), available at http://www.soros.org/initiatives/usprograms/focus/justice/articles_publications/publications/hartpoll_20020201/Hart-Poll.pdf.
 Nat’l Inst. of Corr., A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems 10 n.12 (3rd ed. 2010) [hereinafter NIC Framework] available at http://cepp.com/documents/EBDM%20Framework.pdf.
 H.R. 07-1358, 66th Gen. Assem., Reg. Sess. (Colo. 2007) (codified at Colo. Rev. Stat. § 16-11.3-101(1)(f) (2011)).
 See Colo. Comm’n on Criminal & Juvenile Justice, By-laws (2008), available at http://cdpsweb.state.co.us/cccjj/pdf/Approved%20By-Laws.pdf.