Press Contact: Jeremy Cherson, Director of Communications

FOR IMMEDIATE RELEASE: 

(LOS ANGELES, CA) – The Bail Project today released Detention by Design: The Constitutional Crossroads of Pretrial Justice, a landmark report analyzing how state constitutional amendments are rapidly reshaping the right to bail – and redefining the meaning of pretrial liberty – across the country.

At its core, the right to bail was meant to guarantee release before trial, not tie freedom to money. But a wave of constitutional changes is expanding who can be jailed pretrial, entrenching cash bail, and eroding due process and the presumption of innocence.

Drawing from years of legal research and on-the-ground advocacy, Detention by Design offers a comprehensive roadmap for understanding this emerging national trend, the political and legal forces driving it, and the safeguards needed to protect pretrial justice in America.

“A quiet constitutional crisis is unfolding in America,” said David Gaspar, Chief Executive Officer of The Bail Project. “State by state, the right to bail is being rewritten – expanding preventative detention, deepening reliance on money bail, and eroding the presumption of innocence. These changes strike at the very foundation of pretrial liberty and demand urgent attention.”

“Though these amendments may seem technical, their impact is sweeping,” added Erin George, National Director of Policy at The Bail Project and lead author of the report. “Because of their complexity, they’ve advanced largely without public awareness. Detention by Design is both a wake-up call and a guide to take action before the right to pretrial liberty slips away.”

Key Findings

• Amendments are accelerating. Between 2021 and 2025, over a quarter of states with a constitutional right to bail have proposed or enacted amendments, most of which expand pretrial detention and lack due process protections.
• Detention is being redefined. Many amendments introduce vague, risk-based language that broadens who can be jailed pretrial, often without requiring strong evidentiary standards.
• Cash bail is being entrenched. States such as Ohio and Wisconsin have rewritten the right to bail as a right to have monetary conditions imposed, turning freedom into a financial transaction.
• Due process is eroding. Only nine of 41 states with a right to bail include constitutional language guaranteeing hearings, counsel, or time limits on pretrial detention.
• Advocates can still shape reform. In Texas, sustained organizing helped secure landmark due process protections in a 2025 amendment, guaranteeing counsel at detention hearings and requiring “clear and convincing evidence” before a person can be jailed pretrial.

Inside the Report

Designed as a tool for advocates, policymakers, journalists, and the public, Detention by Design offers:

• Historical context tracing how the right to bail has evolved—and eroded—over time;
• A three-part framework for evaluating bail amendments: detention eligibility, guardrails, and due process;
• State case studies, from New Jersey to Texas, showing how amendment trends play out in practice; and
• Strategic guidance for shaping future amendments and defending pretrial liberty.

Read the full report: Detention by Design: The Constitutional Crossroads of Pretrial Justice.

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The Bail Project is a national nonprofit working to transform America’s pretrial system by eliminating reliance on cash bail and proving that a more humane, equitable, and effective pretrial system is possible. We provide free bail assistance and pretrial support to thousands of low-income people each year while advancing policy change at the local, state, and national levels. Since our founding, The Bail Project has supported over 40,000 people navigating the pretrial system, which includes nearly 35,000 individuals whose release we secured by posting bail and providing supportive services such as court reminders and transportation assistance. With this support, those clients returned to court 92% of the time, proving that support – not wealth – is what makes the system work. We have also provided supportive services through pilot programs to more than 6,000 people, ensuring that both wealth and access to support are never barriers to fairness in the pretrial process. Learn more at bailproject.org.