Could bail reform be the answer to changing the trajectory of America’s current problem with mass incarceration?
That question is central to a new book published this month by University of Utah S.J. Quinney College of Law Professor Shima Baradaran Baughman and Cambridge University Press titled “The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System.”
The book is the first comprehensive analysis on bail in the U.S. since 1970 and comes at a time when efforts to implement widespread bail reform across the country are gaining momentum. Senators Rand Paul, R-Ky., and Kamala Harris, D-Calif. — have introduced a bill to overhaul the nation’s bail system in an attempt to prevent individuals from being taken advantage by bail bondsman who often charge high fees and prey on disadvantaged people after an arrest.
The bill, titled the Pretrial Integrity and Safety Act, is designed to address what the senators see as flaws in the system. Baughman’s book gives states concrete ideas on how to reform bail and save money, which would be even more feasible using reforms provided under the proposed bill. Other states have recently implemented their own bail reforms, including Colorado, New Jersey and Kentucky.
The time is ripe for sweeping changes, according to Baughman.
“Mass incarceration is one of the greatest social problems facing the United States today. America incarcerates a greater percentage of its population than any other country and is one of only two countries that requires arrested individuals to pay bail to be released from jail while awaiting trial,” Baughman states.
In the book, Baughman traces the history of bail and demonstrates how it has become an oppressive tool of the courts that disadvantages minority and poor defendants.
She draws on constitutional rights and new empirical research to show how we can reform bail in America to alleviate mass incarceration. By implementing these reforms, she argues, the nation can restore constitutional rights and release more defendants while lowering crime rates.
Baughman is a former Fulbright scholar and national expert on bail and pretrial prediction and her current scholarship examines criminal justice policy, prosecutors, drugs, search and seizure, international terrorism, and race and violent crime. Her teaching and scholarship at the University of Utah focus on criminal law and procedure and her work is widely featured in media outlets like the New York Times, Wall Street Journal, Economist, and NPR.
She began researching bail issues early in her career after realizing that the most consequential decision in criminal justice besides arrest is the decision whether to detain or release someone before trial.
“It ends up impacting everything in a criminal case — from whether a person goes to jail and for how long, whether they are able to keep a job, home, and kids, and whether they will recidivate or be rearrested again. All of these impacts result from a two-minute decision of whether a judge allows someone to be released or not,” she said.
“And usually it is decided based on whether the person can afford to pay the bail. That’s, unfortunately, the biggest factor. Almost 90 percent of people who are arrested cannot get out of jail before trial just because they don’t have $200 or $500 to pay to a bail bondsman.”
Baughman’s research presents a customizable plan for instituting bail reforms, including use of pre-trial risk assessments and helping judges to use predictive methods to release the right people on bail without increasing crime rates.
Her research may provide a helpful framework as conversations about the future of bail in America continue.
“There’s a lot of momentum on bail,” said Baughman. “Conversations are happening in every state to decrease the number of people incarcerated. Most of the people in jail are not people convicted of any crime and we can change that.”
