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Abstract

The problems of mass incarceration in the United States and its burdens on the economic and social well-being of local communities, counties, and states have received increased attention and have spurred conversations on prison and jail reform. More recently, reform efforts have appropriately focused on the bond system and the role of pretrial detention in fueling jail and prison overcrowding. The bond process presents a unique opportunity for reform because defendants at this stage are presumed innocent and, as the Supreme Court has affirmed, these defendants possess fundamental rights to liberty and a presumption towards pretrial release. Yet jurisdictions, such as Cook County, Illinois, overwhelmingly rely on monetary bonds and other restrictive measures to condition or deny a defendant’s release, causing many defendants to remain behind bars for months and even years awaiting trial.

As recent research reveals, the use of pretrial detention disproportionately affects black defendants who are more likely to receive higher bond amounts and more restrictive conditions than white defendants facing similar charges. Meaningful bond reform, therefore, must address the role of racial bias in contributing to disparate detention outcomes for black defendants. Bond decisions are particularly susceptible to implicit bias because they often require judges to make quick, on-the-spot, complex, and predictive decisions about a defendant’s threat to the community and likelihood to reappear in court. These decisions occur when judges have very limited information about the individual defendant, leading to a misguided reliance on racial stereotypes.

Effective bond reform should include the increased use of unsecured bonds instead of monetary bail as a more reliable and less restrictive means to ensure the defendant’s return to court and community safety. Jurisdictions should also demand more accountability and transparency from bond judges by requiring publicly available data on bond court practices and jail admissions. Reform efforts should further require judges to undergo training on implicit bias and the proper use of risk-assessment instruments to more fairly and accurately evaluate the risks a defendant poses if released to avoid relying on inaccurate racial stereotypes.

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