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Legislative and Legal changes to the US federal bail system

Chronology-Pretrial Services

This list cannot detail every event that has altered the manner in which bail has changed. Instead, the focus of this timeline provides evidence that governmental actors must maintain high levels of accountability and transparency through reliance on evidence-based practice. Additionally, this list is meant to emphasize the democratic tradition in which various, committed actors work diligently and continually to enhance the ideals of life, liberty, the pursuit of happiness, and due process that are central to democracy.

1776Declaration of Independence
 The succession from English authority and the development of United States of America began the great experiment of democracy. As the new nation worked to develop its identity, the legal foundations of the country were formed under the inalienable rights of life, liberty, and the pursuit of happiness. Prior to this declaration, the notion of bail was based on English common and codified law. As no strong federal system of government would be developed for multiple years, each state developed their own legal principles and forms of implementation for pretrial release. Generally, however, these varied interpretations included the idea that excessive bail should not be imposed upon criminal defendants as set forth in the English Bill of Rights, which was passed in Parliament in 1689.
1787Development of the U.S. Constitution
 Following the rejection of The Articles of Confederation, the U.S. Constitution was developed in order to codify the legal principles that would serve as the foundation for the system of governance in the United States. Articles I-IV of the Constitution provide the basic framework for each of the branches of government and their permitted functions and limitations. Article V, under the Supremacy Clause, states that the U.S. Constitution is the “supreme law of the land” and that each actor within the three branches of government is bound by the principles set forth within the document.
1789Judiciary Reform Act of 1789
 In an attempt to further regulate the imposition of bail and pretrial release, this legislation was passed in 1789 by the U.S. Congress. This act, along with the U.S. Constitution and the Bill of Rights, served as the foundation for the criminal procedure for pretrial release and detention. Essentially, this act stated that all defendants, except those charged with an offense punishable by death, were able to be released pending trial. The legislation further indicated that it was the Judiciary’s responsibility to exercise discretion in admitting defendants to bond or detaining them prior to trial.
1791Bill of Rights
 The first ten amendments to the U.S. Constitution serve to explicitly state the rights of U.S. citizens and to protect a variety of individual liberties. To many of the states, the inclusion of these amendments was so important that the ratification of the U.S. Constitution was delayed. Specifically pertaining to bail, the Fifth, Sixth, and Eighth Amendments address factors related to pretrial release and detention. The Fifth Amendment sets forth minimal criminal procedure and that accused persons “shall not be deprived of life, liberty, or property” without due process. The Sixth Amendment requires that defendants be advised of the offense charged, be afforded assistance of counsel, be afforded a right to a speedy trial, and be afforded the opportunity to confront witnesses. Additionally, legal tradition suggests that these two Amendments provide the foundation for the presumption of innocence. The Eighth Amendment, in part, requires that excessive bail not be set. These amendments, especially the Eighth, created a long-standing legal debate of whether or not a right to bail exists within the U.S. for accused defendants.
1868The Fourteenth Amendment
 Often combined with the Thirteenth Amendment under the title “the Reconstruction Amendments,” this alteration of the U.S. Constitution occurred following the Civil War and extended due process to all people in the United States. This extension provided for the protection of all people within a judicial district, including non-citizens. Additionally, this Amendment provided similar protections as the Fifth Amendment, but extended these rights beyond the federal government to the state level. With regard to bail, this Amendment required that all people charged with a crime be afforded the opportunity for pretrial release.
1895Coffin v. U.S., 156 U.S. 432 (1895)
 This U.S. Supreme Court case clearly defines the principle of the presumption of innocence for the first time in U.S. history. Although believed to be inferred from the U.S. Constitution, no direct recognition of this presumption had been previously articulated. The significance of this case is that it places the burden of “proof beyond a reasonable doubt” on the prosecution in criminal proceedings. In reference to setting bail, all defendants are to be presumed innocent prior to adjudication, and thus, not subject to criminal penalties prior to trial.
1951Stack v. Boyle, 342 U.S. 1 (1951)
 In this case, argued before the U.S. Supreme Court, the notion of excessive bail, as set forth by the Eighth Amendment, was clarified. This case involved numerous defendants that initially had bail set at varying amounts. Upon the government’s motion, bail was modified to $50,000.00 for each defendant, regardless of his risk of nonappearance before the Court. This motion was made pursuant to the government’s evidence that four defendants charged with similar crimes, but completely unrelated to the present case, had previously forfeited bonds in another district. The Supreme Court clarified that the legal reasoning behind such a decision would be faulty and that defendants must be adjudged based on individual status and relative to the individual risks of nonappearance that they each pose.
1961Establishment of The Vera Institute of Justice and the Manhattan Bail Project
 During this time period, the field of criminal justice saw an emergence of academic research that highlighted numerous problematic issues. The development of the Vera Institute of Justice in 1961 was one response to these issues. This independent organization, including scholars and criminal justice practitioners, sought first to evaluate the effectiveness of the imposition of bail on criminal defendants in New York City. The findings from this study suggest that numerous criminal defendants who lacked the financial ability to afford bail, but maintained significant ties to the community posed little risk of nonappearance. Thus, the unnecessary pretrial incarceration of numerous defendants was a mismanagement of public funding. Credited as the first pretrial services screening agency, The Manhattan Bail Project was developed in response to these findings and assisted judicial officers with the screening of pretrial defendants in order to minimize unnecessary detention of pretrial defendants. This study characterizes one of the first evidence-based approaches to correcting problematic bail issues.
1964National Conference on Bail
 In response to public outcry to the potential incarceration of the innocent and the findings of the Vera Institute and other scholars, Attorney General Robert Kennedy convened the first National Conference on Bail in 1964. This group was charged with the comprehensive exploration of the problems facing criminal bail and potential courses of action that would resolve those problems. With assistance from numerous scholars, this comprehensive evaluation confirmed the findings of the Vera Institute nationwide. Moreover, the findings showed that the state of bail infringed upon many personal and civil liberties. The suggested solution was a systemic reform of the bail system
1966Federal Bail Reform Act
 The findings of the National Conference on Bail and the Vera Institute required the U.S. Congress to take action in order to correct the shortcomings of the flawed bail system. This action came in the form of the Federal Bail Reform Act of 1966. This legislation required that all federal defendants not charged with a capital offense be released on their own recognizance prior to trial. If the judicial officer determined that this form of release would not adequately assure the presence of the defendant as required, this act permitted the judicial officer to impose the “least restrictive” conditions (e.g., restrictions on travel, execution of an appearance bond) necessary to ensure the defendant’s presence as required. The significance of this reform is that it created a mandate for release on the least restrictive means to ensure the defendant’s appearance in light of the presumption of innocence. As such, this systemic reform assisted to alleviate public concern regarding the potential incarceration of the innocent.
1967Washington, D.C. Bail Agency Act
1974Federal Speedy Trial Act, Including Creation of 10 Pilot Pretrial Services Agencies
 In the spirit of the Sixth Amendment to the U.S. Constitution and in response to numerous delays in court proceedings, Congress passed the Speedy Trial Act. This legislation regulated the amount of time that each step of a federal criminal proceeding may take. Specific time frames were established that dictate the amount of time that is legally permitted to pass prior to advancement to the next adjudicative stage. Additionally, this act permits specified delays in criminal proceedings in order to better serve the ends of justice and/or protect the rights of the accused. Additionally, this act permitted the creation of ten “demonstration” pretrial services agencies in order to prevent crime by defendants released on bond and to lower rates of nonappearance. These agencies were responsible for pretrial services investigations and supervision and served as experimental entities charged with enhancing the rate of defendants’ appearance as required and protecting the safety of the community. This legislation continues to be a component of federal law and can be found at 18 U.S.C. 3161-3180.
1975Alberti v. Sheriff of Harris County, 406 F. Supp. 649 (SD Tex. 1975)
 This class-action case from the U.S. District Court in the Southern District of Texas was filed by a confined prisoner, Lawrence Alberti, on behalf of all prisoners confined to the Harris County Jail. This jail had become significantly overcrowded (operating at more than 200 percent capacity) with inmates who were detained pending trial and those who were awaiting transfer to another facility. The Court held that due to the substantial number of inmates confined to the limited space, inmates were suffering cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. The implications of this decision required intervention into the pretrial release system to better evaluate the appropriateness of release of numerous defendants as well as a mandate that the local county be responsible for the adequate accommodations of confined prisoners.
1978National Association of Pretrial Services Agencies Issues Standards for Release, Detention, Danger, and Diversion
 Funded through a grant from the U.S. Department of Justice, and in conjunction with the Pretrial Services Resource Center, the National Association of Pretrial Services Agencies (NAPSA) was charged with the development and implementation of field standards for pretrial services agencies. This was the first development of nationwide, professional standards for these agencies. Their evidence-based approach provided an initial reference point for later evaluation and data analysis to further display the efficacy of pretrial services agencies.
1979Bell v. Wolfish, 441 U.S. 520 (1979)
 This case focuses on the Fourth Amendment’s prohibition of unreasonable search and seizures as it pertains to detained pretrial defendants. Specifically, the Court was asked to resolve the question of whether or not it was permissible to conduct “pat-down,” “strip,” “body-cavity searches,” and similarly invasive seachers on detained pretrial defendants in order to better ensure the safety of the jail environment. Although the District Court upheld the prisoners’ protection from these types of searches, the Supreme Court overturned this decision by a five-to-four vote. Thus, the Court held in this matter that, while incarcerated, the rights of pretrial detainees were equivalent to those of convicted offenders.
1982The Federal Pretrial Services Act of 1982
 The Federal Pretrial Services Act permitted the national expansion of the ten “demonstration” pretrial services agencies authorized under the Speedy Trial Act to every judicial district. Each district was permitted eighteen months in order to evaluate its needs and determine if a separate pretrial services office would best serve the court of if pretrial services functions could be managed through the U.S. Probation Office for that district. Thus, a formalized system of defendant investigation and supervision was instituted nationwide in order to provide enhanced service to the judiciary and facilitate the administration of justice. This legislation, codified at 18 U.S.C. 3152-3156, continues to serve as the foundation for the federal pretrial services system.
1984The Federal Bail Reform Act
 In response to an increase in the national crime rate, declining public support for rehabilitative measures as part of the justice system, the initiation of the War on Drugs, and a general political and social move toward “getting tough” on crime, Congress passed the Comprehensive Crime Control Bill. A major aspect of this legislation was the Bail Reform Act. The significant change that this act permitted was the detention of pretrial defendants on the grounds of their danger to the community. Prior to the enactment of this bill, defendants could only be detained based upon the risk of nonappearance they posed. This act also contributed to the legal question that arose following the ratification of the Bill of Rights that a defendant did not maintain an inherent right to pretrial release if they posed a significant risk of flight prior to trial and/or a danger to the safety of the community. This legislation remains the fundamental bail law in the United States and can be located at 18 U.S.C. 3141-3151.
1984Schall v. Martin, 467 U.S. 253 (1984)
 This case from the U.S. Supreme Court permitted the pretrial detention of a juvenile in New York based upon his danger to the community and his risk of flight. Although the defendant in this case claimed that his Fourteenth Amendment rights had been violated, the Court, in a six-to-three decision, held that such a detention was not in violation of constitutional law. In relation to the federal bail system, this case illustrates that juveniles may be detained prior to trial if the Court find sufficient cause.
1987U.S. v. Salerno, 481 U.S. 739 (1987)
 In this case, the U.S. Supreme Court upheld the constitutionality of the Bail Reform Act of 1984 and reversed the decision of the Appellate Court. This case consisted of a alleged member of an organized crime “mafia family” charged under the Racketeering and Corrupt Influence Organization (RICO) statute who was believed to pose a threat to governmental witnesses if released on bond. The challenge was based on the provisions of the Fifth and Eighth Amendments to the U.S. Constitution. The Court held that sufficient evidence was present to detain the subject prior to trial and that a “compelling interest” (i.e., public safety) aside from the risk of nonappearance was presented to warrant the defendant’s detention. However, the Court cautioned the judiciary and pretrial services agencies by noting that the United States’ system of justice is based on the presumption of innocence and that pretrial release should be “the norm” in the vast majority of criminal cases.
1987Judge Tjoflat Testifies on Pretrial Services
 The Honorable Gerald Bard Tjoflat, U.S. circuit judge for the Eleventh Circuit and chairman of the Probation Committee, testified before the House Subcommittee on Crime (Committee on the Judiciary) on June 18, 1987. The testimony centered on implementation of the Pretrial Services Act of 1982 (Public Law 97-267), and included both the history and current status of implementation. Judge Tjoflat informed Congressman Hughes that the pretrial services function was presently 31.7 percent understaffed based on work measurement criteria. Chief of Probation Donald L. Chamlee, Chief of Operations Guy Willetts, and Chief of Program Services Harold B. Wooten responded to questions by the committee. Pretrial Specialists Daniel B. Ryan and John M. Hughes, and Pretrial Research Analyst Kevin J. Jackson (Statistical Analysis and Reports Division) also attended the hearing after working for many hours to prepare their testimony. Other staff of the Probation Division were also in attendance.
1987First Pretrial Sevices Work Group Meets
 The Program Services Branch of the Probation Division conducted a work group on June 1-5, 1987, in Washington, D.C. Tasks of the group included study of the pretrial services case file revision and development of writing standards for pretrial services reports. U.S. Pretrial Services Officers Phillip M. Davis (California Eastern/Sacramento), Carolyn M. Harris (Florida Southern/Miami), Paul J. Yuhasz (New York Southern/New York City), and U.S. Probation Officer Joseph A. Kehoe (Massachusetts/ Boston) were part of the group.
1988The National Association of Pretrial Services Agencies Revises Standards
 Upon evaluation of the pretrial services system since the implementation of professional standards in 1978, NAPSA examines the effectiveness of those standards in increasing the number of defendants released prior to trial. Additionally, the levels of nonappearance and community safety were gauged to determine the impact of the pretrial services system. This evidence-based approach epitomizes the accountability and individualized case management that the federal Judiciary strives to achieve.
2001Anti-Terrorism Act
 In the aftermath of the September 11, 2001 terrorist attacks, Congress acted swiftly to criminalize and harshly penalize terrorist attacks. In this legislation, the presumption of detention established by the Bail Reform Act of 1984 and upheld in U.S. v. Salerno is extended to crimes involving terrorist activity. Thus, the likelihood that additional defendants will be detained prior to trial was increased.
2002The American Bar Association Revises Standards Pertaining to Pretrial Release
 The development and espousing of pretrial release standards by the American Bar Association (ABA) represented the professional expectations of attorneys and the roles that prosecutors, defense attorneys, and judicial officers are expected to fulfill. These standards reiterate the position of the U.S. Supreme Court that defendants are to be released on the least restrictive terms possible to ensure the defendant’s appearance and the safety of the community. Additionally, these standard highlight the importance of the investigation and supervision by pretrial services agencies.
2002The U.S.A. Patriot Act
 In accordance with an increased public interest in terrorist activity and protecting the safety of American citizens, the U.S. Congress enacted the U.S.A. Patriot Act. This act, like the Anti-Terrorism Act of 2001, increases the scope of the preventive detention clause present in the Bail Reform Act of 1984. As such, the likelihood that additional defendants will be detained prior to trial is increased.
2004The National Association of Pretrial Services Agencies Revises Standards
 Incorporating many of the significant developments stemming from the “what works” literature, a third edition of the NAPSA standards was issued. As in the past, this organization continued to exemplify the use of data and evidence-based approaches to addressing issues present in the pretrial services system.
2006The Adam Walsh Child Protection Safety Act
 Due to an increase in the prevalence of sexually-based offenses involving the exploitation of children, Congress enacted the Adam Walsh Child Protection Safety Act as an amendment to the Bail Reform Act of 1984. This legislation requires that defendants charged with specific crimes are subject to numerous mandatory conditions of release if admitted to bond. As such, Congress has removed judicial discretion in these types of cases and has placed specific mandates on pretrial services offices.

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History of Pre-trial Services, Sentences Suspension, and Probation in USA


SOURCE: United States Courts

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