About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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.


  &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.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most