Kayla Susalla
Although many states have enacted bail reform policies in the past decade, a recent report from the Bail Project shows that this momentum is waning. Following a spike in crime during the pandemic, many states rushed to enact bail-related constitutional amendments to address public panic. While community safety is important, there is negligible evidence that expanding pretrial detention furthers it. Instead, it often inflicts harms on people accused of crimes, including job loss, disruption of parental custody, and increased vulnerability to coercive plea agreements. Unnecessary pretrial detention undermines the presumption of innocence, circumvents due process, and makes personal liberty dependent on an individual’s net worth.
Historically, pretrial detention was the exception; release was the norm. Courts relied on community ties and people taking responsibility for the accused as sureties to ensure court appearances. When English judges in the late seventeenth century began setting unreasonably high bail, Parliament intervened by prohibiting this practice in the 1689 Bill of Rights. Early American colonies similarly embraced liberal bail practices: Massachusetts permitted pretrial release for noncapital offenses, while Pennsylvania guaranteed release in all cases except capital offenses “where proof is evident or the presumption great.”
Today, however, half of the states have amended their constitutions to broaden pretrial detention, and nine no longer constitutionally guarantee a right to bail at all.
The new Bail Project report notes that between 2021 and 2025, eleven states introduced bail-related constitutional amendments, most of which restricted eligibility for pretrial release. These amendments expanded detention through broad offense categories and vague risk indicators and, in some cases, enshrined cash bail in constitutional language. Many of the measures were enacted in response to high-profile crimes committed by people on pretrial release, judicial decisions limiting bail practices, or the elimination of the death penalty. Together, these events fueled public anxiety and pressured lawmakers.
Yet imprecise constitutional language grants judges broader authority to detain people who are still presumed innocent, even when they pose no flight risk, which is supposed to be the main rationale for pretrial detention. Meanwhile, reliance on cash bail as a public safety tool continues to tie freedom to wealth and ultimately undermines community safety.
For example, in 2022, after the Ohio Supreme Court affirmed a decision reducing a $1.5 million bail in DuBose v. McGuffey, the Ohio legislature passed an amendment to remove the judiciary’s rulemaking authority over bail and require judges setting bail amounts to consider public safety, offense severity, and criminal history. But judges already considered the risk of flight and threats to public safety.
Financial bars to pretrial release assess one’s ability to pay, not potential public safety concerns. Additionally, Ohio’s constitution already prohibited pretrial release when someone is charged with a felony or capital offense “where the proof is evident or the presumption great” and when a person “poses a substantial risk of serious physical harm to any person or to the community.” By themselves, these provisions adequately addressed community safety concerns.
The report further observes that of the states with a constitutional right to bail, only nine provide procedural safeguards, such as heightened burdens of proof for detention, clear definitions of risk, prompt hearings, the right to counsel, the ability to appeal, written judicial findings, and limits on the use of cash bail. For example, seven states guarantee a hearing, and three guarantee a right to appeal. Such safeguards are essential to ensuring that individuals who pose no flight or safety risk are not subjected to unnecessary detention while also providing meaningful checks on judicial decision-making.
Ultimately, public safety and the presumption of innocence are not mutually exclusive. Raising or constitutionalizing cash bail standards does not enhance safety; it merely penalizes poverty. Meaningful reform requires protecting communities without sacrificing constitutional principles.