Excessive bail has long been used to detain people – primarily Black people and political dissidents – for reasons beyond ensuring their appearance in court. However, explicitly allowing “dangerousness” as a criteria in determining if someone is to be released pretrial – and, if so, what the cost of their freedom is – is a relatively recent phenomenon.
In the crime hysteria of the 1970s, both Presidents Richard Nixon and Gerald Ford greenlit federal programs introducing “preventive detention” – i.e. detaining people on high bail, or no bail at all (also called “remand”), in order to ensure the “safety of the community.” However, bail is mostly determined in state courts, and so-called “dangerousness statutes” subsequently began to flourish on the state by state basis. This practice was enshrined in federal law with the Bail Reform Act of 1984.
Today, 48 states have bail statutes allowing judges to detain accused people based on. Unsurprisingly, “dangerousness” is extraordinarily vague, easily weaponized against people of color and poor people, and has created a bail system that more aggressively criminalizes race and poverty.
This has radically altered the original intent of bail, caused bail amounts to soar, and the pretrial population to increase exponentially. The number of people detained pretrial in the United States has climbed from around 88,000 in 1983 to around 530,000 people in 2017.