Bail Reform Act of 1984

Instructor: Erin Krcatovich

Erin teaches undergraduate and graduate classes in Political Science, Public Policy, and Public Administration and has a PhD in Political Science.

The Bail Reform Act of 1984, which clarified and replaced certain provisions of the Bail Reform Act of 1966, identifies what a judge must consider when determining conditions of pretrial release.

Bail in the United States

When a person is formally accused of a crime in the United States, he or she will appear in court before a judge prior to the formal trial. In this bail hearing in most states, a clearly defined amount of money, called bail, must be paid (or a percentage of that amount must be paid upfront) for a person to be temporarily released from jail. This is called a pretrial release. He or she is expected to return to jail at a set date in order to stand trial for the crime.

Judges may or may not, depending on the state, have some discretion to lower or raise that predetermined amount of money. A judge can decide to change the set bail amount, depending on the specifics of the case: type of crime, threat posed by the defendant, whether he or she is a flight risk, and / or whether he or she is likely to follow the terms of bail. In particular, if a person leaves the country, he or she can be extradited or forced to return to stand trial, through joint cooperation of the U.S. and foreign governments. In this lesson, we will learn about the Bail Reform Act of 1984, which amended the Bail Reform Act of 1966. This Act allows the judge to have greater discretion in setting the terms of bail when appropriate.

Bail Reform Act of 1966

Critics of the bail system prior to 1966 claimed that it was biased against those who could not afford their bail. Effectively, it created a system where the poor must remain in jail awaiting trial while the wealthy could afford bail and were set free on a pretrial release. They wanted to see a bail system that was not determined by one's wealth or poverty. This reform was passed to help the very poor in our legal system.

In 1966, the United States issued a law which amended the process of setting bail. It required that only flight risk, and specifically not the defendant's wealth or poverty, be used to determine bail. A judge must utilize all other means of securing a person's return to stand trial, rather than bail payment. Some of these non-monetary approaches include: supervision or routine check-ins with law enforcement during the pretrial release, and / or restrictions on the person's ability to travel.

Bail Reform Act of 1984

The Bail Reform Act of 1966 did not adequately address the concerns of critics of the bail system. They feared that violent criminals were still routinely set free on bail and could commit other crimes before trial. Thus, it was amended in 1984. The Bail Reform Act of 1984 allowed judges to assess whether or not a defendant was a danger to the community in all cases, not just capital offenses. It was issued as part of the larger Comprehensive Crime Control Act of 1984.

Under this Act, judges must hold one or more hearings to evaluate the threat posed by the accused person. A judge may need to hold a detention hearing for violent crimes or some drug offenses to determine, with a standard of proof of ''clear and convincing evidence'' that he or she is a danger to the community if allowed a pretrial release. This is a lesser standard than ''beyond a reasonable doubt,'' required for the conviction, but more than ''preponderance of the evidence'' which is used for most pretrial matters. Some of the factors to determine this danger include:

  • Seriousness of the crime, and whether it involved violence or a major drug offense (punishable by 10 or more years imprisonment)
  • Any wealth or property to be held as collateral against the defendant
  • Characteristics of the accused (psychology, history, money and resources at his disposal, and physical state including substance abuses and addictions)

The judge may hold other hearings to evaluate flight risk, if the accused has prior convictions (so called 'Three Strike' laws where a person can face harsher penalties for repeated offenses), and threat to the community. If the judge determines one or more of these circumstances ought to affect the amount set for bail, then a formal written statement must be made to explain the judge's decision.

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