Bail Reform Act of 1984

The Bail Reform Act of 1984, which was part of the Comprehensive Crime Control Act of 1984 that was passed by Congress and signed into law by President Ronald Reagan, fundamentally altered pretrial release rules for individuals charged with committing certain types of crimes. Although the new law included bail provisions that had appeared in federal law before, such as freeing defendants on their own recognizance and setting limits on their release, the new law permitted them to remain in custody prior to, and in the absence of, any conviction if they were determined to pose a danger to another individual or to others living in the local area. Prior to the 1984 Bail Reform Act, defendants were ineligible for bail only if they had been adjudicated unlikely to be able to keep their promise to appear in court to answer the criminal charges that had been made against them. The pretrial detention provisions of this law were upheld by the U.S. Supreme Court in United States v. Salerno (1987). The Bail Reform Act of 1984 is germane to community corrections because it seeks to protect community members from crimes by people who have been arrested and because it represents a fundamental shift in corrections, as individuals who have been charged with a crime may now be incarcerated indefinitely in the absence of a guilty verdict for the sole purpose of preventing them from committing future crimes.

There are several types of crimes for which bail can be withheld, as a result of a special court proceeding held for such purpose, under the 1984 act.

Among them are violent crimes that can result in the death penalty or a life sentence and specific drug charges that can result in a minimum of 10 years' incarceration. Bail can also be denied to defendants who have already been found guilty of at least two felonies and are currently being charged with another felony that meets any of the aforementioned criteria. It can also be refused to anyone considered unlikely to appear at trial, likely to engage in obstruction of justice, or likely to become involved in jury tampering.

The 1984 act constitutes a significant departure from earlier law, since bail has historically been used in the United States to assure that individuals who have been arrested appear at their own trials. Early references to bail in federal law can be found in the Judiciary Act of 1789, which permits bail in all cases except those involving the death penalty, and the Eighth Amendment of the U.S. Constitution, which bars unreasonably high bail. It was the Bail Reform Act of 1966 that expanded bail, which had long been financially based, to include personal recognizance where money is not exchanged, set conditions for bail release, and withheld bail to allow pretrial detention for defendants deemed unreliable in their ability to make their own court dates.

At issue in United States v. Salerno was whether the Bail Reform Act violated the due process clause of the Fifth Amendment as well as the excessive bail clause of the Eighth Amendment. In a 6–3 decision, the U.S. Supreme Court, overturning an earlier decision in the case by the Second Circuit U.S. Court of Appeals, found the act constitutional under both amendments. The majority opinion, which [Page 20]was written by Chief Justice William Rehnquist, explained, among other things, that the Fifth Amendment permits a person to be placed in police custody prior to trial to prevent criminal action by that person. Doing so is not the same as punishing that person for those actions. He also specified that the Eighth Amendment does not mandate bail for any defendant—it merely limits the amount of bail that can be imposed in a criminal case. Justice Thurgood Marshall, who was joined in dissent by Justice William Brennan, noted that the ruling had the effect of allowing individuals who have not been convicted of any crime to be incarcerated on a continual basis just because the possibility exists that they might commit a crime at some later date. Also dissenting in the case was Justice John Paul Stevens, who questioned the issues addressed by the Bail Reform Act of 1984 with respect to the protection of innocent third parties. He stated that it was not likely that they would become safer if the person being held for their protection was found not guilty of the charge for which he or she had been arrested. Justice Stevens also agreed with Justice Marshall that the 1984 act contradicts the presumption of innocence standard, which has long been a feature of the U.S. criminal justice system. Despite the U.S. Supreme Court's ruling in Salerno, the Bail Reform Act of 1984 remains highly controversial because it extended federal law in three new directions. First, it appears to allow individuals who have been charged with, but not convicted of, a crime to be held indefinitely without bail. Second, it seeks to prevent future crimes by jailing potential wrongdoers, although all humans have that potential. Finally, this law seems to undermine presumption of innocence and due process by subjecting those innocent of crimes, but who have not yet been adjudicated, to the same punishment (deprivation of liberty) given to convicted criminals.

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