U.S. flag

An official website of the United States government, Department of Justice.

Bail and Detention: An Assessment and Critique of the Federal and Massachusetts Systems

NCJ Number
New England Journal on Criminal and Civil Confinement Volume: 22 Issue: 2 Dated: (Spring 1996) Pages: 213-290
E Harmsworth
Date Published
78 pages
This article examines the various methods used to release or detain defendants between arraignment and trial: release on recognizance (ROR), release on money bail, conditional release, and detention in jail; it focuses on the Federal system and the Massachusetts State system.
One section of the article discusses attempts to expand pretrial release. The topics addressed are ROR and the Manhattan Bail Project, the selection of and valuation of money bail, statutory criteria used in the release and bail decision, and conditional release and the role of pretrial services agencies. Another section considers attempts to curtail pretrial release. Topics discussed in this section are "Nebbia" motions and State equivalents, the 1984 Federal Bail Reform Act, and the 1994 Massachusetts Pretrial Detention Statute. The author develops a proposal from the model system of pretrial release suggested by Wayne Thomas. Thomas argues that bail should be viewed as a sequence of various filtering decisions, each of which filters out about half of the remaining defendants. In this model, the filters consist of police release through citations and summonses, preset bail schedules, ROR, conditional release, and cash bail. Today, the use of citations and summonses is widespread and uncontroversial. A contemporary view of the court- run bail system would have to name the filters as ROR, conditional release, money bail, and pretrial detention. This article advocates that these filters be changed so that they "trickle" out the most appropriate number of defendants at each stage on the basis of statistical evidence that shows the optimum number that should receive each different type of release. The first stage, ROR, is suitable for approximately 90 percent of the defendants whose cases appear before a judge. Pretrial detention would be reserved for that 4-5 percent of defendants who are the most dangerous or flight-prone. 473 footnotes