Matthew Cavedon
We can do better than either ending bail reform or proceeding with it unthinkingly. The horrific stabbing of Ukrainian refugee Iryna Zarutska on Charlotte public transportation has ignited a firestorm about bail. Her killer, Decarlos Brown, appears to suffer from serious mental illness and has a long history of arrests, including for violent offenses. President Trump cited Ms. Zarutska’s death as a justification for sweeping measures against pretrial release, including a push to cut federal funding to cities that limit the role of money in setting bail.
Decision-makers should instead further explore an option more tailored to the rights of both the public and defendants: improving pretrial supervision.
The Eighth Amendment guarantees most people charged with criminal offenses the right to be released from jail before trial once they post reasonable bail. After all, defendants are presumed innocent—and so cannot be constitutionally punished—until proven guilty. Bail has deep historical roots. As a 2023 Cato legal brief explained, it descended from medieval practices that let the accused enjoy liberty under the supervision of responsible community members. In time, English common law came to recognize pretrial release as an important safeguard for liberty.
The American colonies strengthened the right to bail with Massachusetts’s 1641 Body of Liberties, promising that no one would be detained before trial except for a capital offense. Colonial Pennsylvania went so far as to extend the right to bail to all offenses except willful murder. This broad approach became the model for most early American states and federal laws. Unlike modern practices, defendants did not have to pay bail unless and until they failed to report for court. Only in the twentieth century did setting bail at high monetary amounts, determined mainly by the desire to advance public safety, become commonplace.
In recent years, some governments have tried to restore broad access to pretrial release by limiting the use of cash bail, including by using formulas to decide who is eligible for release. Whether or not these practices are ideal is beside the point, constitutionally speaking. Within the system of American federalism, enacting them is the states’ prerogative. President Trump’s effort to force states to adopt his preferred policies by withholding large amounts of federal funding is constitutionally dubious (for the same reasons as President Obama’s similar attempt to compel Medicaid expansion).
Setting aside constitutional issues, though, there is an alternative between the extremes of simply releasing defendants before trial and simply keeping them in jail: pretrial supervision. When I was a Georgia public defender, many of my clients who posted bond did not just walk out of jail to go await their court dates. Rather, they were assigned a pretrial supervision officer. The officer’s job was to make sure the defendant took steps to follow the law and better themselves. These responsibilities could include getting a job or a diploma, maintaining sobriety, taking medications, attending counseling, keeping away from weapons and the alleged victims, and, in extreme cases, even submitting to 24/7 location monitoring. The specific conditions were tailored to the defendant and the case.
Pretrial supervision was often a win-win. Judges, prosecutors, and alleged victims were more comfortable letting people out of jail—and so freeing up cells for more dangerous occupants—knowing they would be under careful watch. (Indeed, some comprehensive pretrial programs have resulted in felony rearrest rates below ten percent, and pretrial supervision has won the backing of the National Sheriffs’ Association.) As a defense attorney, it was often very helpful to come back to court for sentencing, being able to boast of my client’s success in reforming his life and following the rules.
Why send someone back to jail once she had proven she didn’t need to be there? And for many of my clients, the burdens that came with supervision were still better than being kept behind bars.
More pretrial supervision is not the same thing as smarter supervision. Too many technical requirements can set defendants up for failure, turning courts and jails into merry-go-rounds. For some defendants, using technology and remote supervision instead of in-person meetings can be a wise use of public resources. Some prosecutors and judges also succumb to the temptation to impose pretrial supervision in low-risk cases where neither the public nor the defendant would benefit.
Despite these nuances, and even though researchers are still working to identify best practices, pretrial supervision represents a smarter approach than the extremes of warehousing defendants or turning them loose. The momentum now exists to review pretrial release. It should be channeled into gathering information and supporting good innovation—not wasted on a knee-jerk return to unnecessary detention.