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We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention in different states and have caused other unanticipated problems. This invited piece aims to create a relatively short guide for those contemplating the best path to reform bail. It lays out steps to reform state bail reform efforts by focusing on seven considerations often neglected in bail reform discussions.
74 SMU L. Rev. 447 (2021)