Due Process and Public Safety in the Development of Bail Reform

The American bail system rests uneasily between two constitutional imperatives: the protection of individuals' liberty and the preservation of public safety. This tension is particularly evident in pretrial detention decisions involving defendants with prior violent convictions. When judges deny bail based on a prediction of dangerousness, they confront a constitutional question at the core of American due process: Does preventative detention before conviction undermine the presumption of innocence and violate the Eighth Amendment’s protection against excessive bail? The 2025 murder of Iryna Zarutska, committed by a man released on bail despite prior violent offenses, renewed national debate over whether denying bail based on dangerousness is consistent with the Constitution. 

The framers of the Constitution recognized the danger of unchecked detention. The Suspension Clause of Article I, Section 9 declares that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” [1] This provision ensures that any person held by the government can challenge the legality of their confinement in court.

Similarly, the Eighth Amendment prohibits “excessive bail,” “excessive fines,” and “cruel and unusual punishments.” [2] The clause was designed to prevent the government from using bail as a means of preemptive punishment or coercion. Early opponents of the Constitution feared the federal government might use criminal laws to detain individuals unjustly. [3] While it forbids bail set at punitive levels, it does not guarantee bail in every case. The Amendment’s purpose is to ensure the conditions of release or detention correspond to legitimate government aims. The Fifth and Fourteenth Amendments further protect against arbitrary deprivation of liberty, declaring that no person shall be deprived of life, liberty, or property, without due process of law. [4][5] These provisions apply equally to all individuals, regardless of the severity of the charge, and require that pretrial decisions be grounded in fair, individualized proceedings.

Previously in US history, the central question in bail decisions was whether a defendant would return for trial. The Manhattan Bail Project (1961) revealed that many defendants could safely be released on their own recognizance without financial bond, prompting the first major legislative reform. The Federal Bail Reform Act of 1966, signed by President Lyndon B. Johnson, built on this insight by encouraging judges to release defendants based on personal recognizance or unsecured bonds. The law intended to separate pretrial liberty from financial status and to ensure detention was only used when the courts deemed it necessary. [6] 

By the early 1980s, policymakers began to confront another dimension of the bail problem: public safety. While the 1966 Act addressed equity, it did not account for defendants who posed serious risks of reoffending or committing violent acts while awaiting trial. Concern of repeat offenders led to the Bail Reform Act of 1984, which authorized judges to detain defendants pretrial if “clear and convincing evidence” showed they posed a danger to others or were likely to flee. [7]

In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court upheld this statute, finding that preventative detention served a “legitimate and compelling regulatory purpose.” [8] The Court reasoned that pretrial detention, when based on individualized findings and procedural safeguards, did not violate the Due Process Clause or the Eighth Amendment. This decision marked a constitutional acknowledgment that protecting the community can justify restricting liberty before conviction. In the decades since Salerno, courts and legislatures have continued to grapple with the limits of preventative detention. The Court in Salerno reaffirmed that “the government’s interest in preventing crime by arrestees is both legitimate and compelling,” holding that pretrial detention does not violate due process when it is narrowly applied and supported by clear evidence. [9]

Recent state reforms reflect this continued effort to balance fairness and security. New Jersey, New York, and California have replaced most cash-bail systems with risk-based evaluations that prioritize release for low-risk defendants. While these well-intentioned reforms promote equity and reduce unnecessary detention, several high-profile incidents, including the 2025 murder of Iryna Zarutska, have prompted questions about whether current standards adequately protect the public.

The Zarutska case underscores a recurring challenge in modern bail systems rather than an isolated failure of discretion. Comparable incidents across the country reveal the same structural tension between reform and risk assessment.  In 2021, Darrell Brooks was released on a $1,000 cash bail in Milwaukee after allegedly running over a woman with his car; weeks later, he drove that same vehicle through the Waukesha Christmas Parade, killing six people. [10] In 2025, in Texas, Austin Collette remained free on bond despite a guilty plea to a prior homicide and went on to commit an additional killing before taking his own life. [11] These cases illustrate the challenge of protecting defendants’ rights while preventing potential harm, underscoring the need to continually assess how bail laws, judicial discretion, and risk assessments function in practice. 

Today, bail determinations often rely on risk assessments that estimate the likelihood a defendant will fail to appear or commit new offenses. [12] Supporters argue these tools create more consistent, evidence-based decisions. Critics question their precision and warn that overreliance on predictive models may undermine the presumption of innocence and introduce bias. The Constitution’s guarantees of liberty and due process can coexist with denying bail in exceptional cases. When courts conduct individualized hearings, apply a “clear and convincing evidence” standard, and record their reasoning, preventative detention based on dangerousness remains both lawful and justified. For repeat violent offenders, prior convictions and behavioral patterns provide legitimate evidence of future risk. In such instances, denying bail may be viewed as a constitutionally sound exercise of due process, grounded in clear evidence and individualized judgment. 

Edited by Ava Betanco-Born

Endnotes 

[1] US Const Art I, § 9, cl 2.

[2] US Const Amend VIII.

[3] National Constitution Center, “The Eighth Amendment: Excessive Bail, Fines, and Cruel and Unusual Punishments,” https://constitutioncenter.org/the-constitution/amendments/amendment-viii/clauses/103 (visited Oct 19, 2025).

[4] US Const Amend V.

[5] US Const Amend XIV, § 1.

[6] Brandon L. Garrett, “Models of Bail Reform,” 85 Fordham Law Review 1775 (2017), https://scholarship.law.duke.edu/faculty_scholarship/4393 (visited Oct 19, 2025).

[7] Federal Judicial Center, The Bail Reform Act of 1984 (4th ed. 2022), https://www.fjc.gov/sites/default/files/materials/57/The%20Bail%20Reform%20Act%20of%201984-Fourth%20Edition.pdf (visited Oct 19, 2025).

[8] United States v. Salerno, 481 U.S. 739 (1987).

[9] Ibid. 

[10] Associated Press, “Darrell Brooks Sentenced to Life for Waukesha Christmas Parade Attack,” PBS NewsHour, February 15, 2023, https://www.pbs.org/newshour/nation/darrell-brooks-sentenced-to-life-for-waukesha-christmas-parade-attack (visited Nov 3, 2025).

[11] ABC7 Chicago, “Texas Murder-Suicide Suspect Was Out on Bond Despite Guilty Plea for 2019 Killing, Records Show,” ABC7 Chicago, April 4, 2025, https://abc7chicago.com/post/houston-texas-shooting-murder-suicide-suspect-austin-collette-bond-awaiting-sentence-2019-killing-records-show/16128285/ (visited Nov 3, 2025).

[12] Brandon L. Garrett, “Models of Bail Reform,” 85 Fordham Law Review 1775 (2017), https://scholarship.law.duke.edu/faculty_scholarship/4393 (visited Oct 19, 2025).