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57 Judges J. 4 (2018)
A Brief History of Bail

handle is hein.journals/judgej57 and id is 94 raw text is: A Be H ai By Timothy R. Schnacke Life can only be understood backwards; but it must be lived forwards. -SOREN KIERKEGAARD The classically inspired bronze doors of the Supreme Court building illustrate significant events in the evolution of justice. 4 &t he history of bail gives us all the answers. This somewhat pithy statement is one I frequently use to stress the importance of history to pretrial justice today. And, indeed, I am rarely proven wrong. When was the first recorded and recognized instance of a judge setting an unattainable cash bond in America? The answer is 1835, in a bond set for a defendant accused of attempting to kill President Andrew Jack- son. Are actuarial pretrial risk assessment instruments new? The answer is no, they merely represent the most recent iteration of roughly 100 years of assessing predic- tors of pretrial success using research.2 Saying that the history of bai gives us all the answers may be somewhat hyper- bolic, but even if it only gives us some of the answers, we can say with confidence that those answers are proving crucial to understanding pretrial release and detention in America today. In short, the history of bail (release) and no bail (detention) in England and America is important, and knowing that history, as well as key themes from that history, is likely essential to understanding this gen- eration of American bail reform. David Crabtree, founder of Gutenberg College, defines history as a story about the past that is significant and true. Sig- nificance requires a historian to simplify the narrative of events to focus only on the most important. Simplicity, in turn, is shaped by questions a historian needs to answer. This is fully evident in the history of bail. For example, several histories of bail written before 2010 merely note the monu- mental change in America from using mostly unsecured financial conditions to mostly secured financial conditions. Today, however, people are questioning the use of secured money bonds, and so newer histo- ries have tried to answer the question of why, exactly, America turned to that model of release and how that model has fared. Historical truth should be a given, but Crabtree says that even factual omissions can lead to a very different historical nar- rative. This generation of bai reform is likely the most ideological generation to date and, thus, it is not immune to inten- tional omissions through competing gS' oum Vol. 57 No. 3 Published in The Judges' Journal, Volume 57, Number 3, Summer 2018. @ 2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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