American Bail and the Tinting of Criminal Justice

Published date01 December 2017
Date01 December 2017
The Howard Journal Vol56 No 4. December 2017 DOI: 10.1111/hojo.12212
ISSN 2059-1098, pp. 397–418
American Bail and the Tinting
of Criminal Justice
Dean Dabney is Professor of Criminal Justice and Criminology, Georgia State
University, USA; Joshua Page is Associate Professor of Sociology, University
of Minnesota, USA; Volkan Topalli is Professor of Criminal Justice and
Criminology, Georgia State University, USA
Abstract: This article analyses the history of bail in the United States in an effort to
situate this institution within the general narrative of criminal justice transformation
during the 19th and 20th Centuries. We identify core characteristics of American bail
(commercialisation, risk assessment, and community supervision) that developed relatively
early in the institution’s history. Although the structureand processes of American bail was
reshaped considerably over time, the spread ofneoconservative and neoliberal rationalities
did not radically transform the core identity of the institution. Instead, these political logics
had a ‘tinting effect’ on bail, intensifying and altering that which already existed. As such,
we frame the case of bail not as a flip from the ‘old’ to the ‘new’ penology, but rather of
the fusing and reshaping as old practices with new goals, justifications,and methods.
Keywords: bail; politics; new penology; pretrial justice; privatisation
The United States (US) and, to a lesser extent, other Western industri-
alised nations have experienced major transformations in criminal justice
since the mid-1970s. The most remarkable of these changes has been
the extraordinary growth of penal populations. For example, the US
imprisonment rate (the number of people in state and Federal prisons per
100,000 residents) rose from 139 in 1980 to 500 in 2010, a 360% increase
(Carson and Sabol 2012). The imprisonment of young African American
men has grown so much that ‘prison time had indeed become modal’
for black male high school dropouts (Western 2006, p.26). When jail,
parole, and probation statistics are added to the incarceration numbers,
the overall penal supervision rate for 2014 increases to about 2,780 per
100,000 residents – that same year, one in every 36 adult residents was
under correctional supervision (Kaeble et al. 2015). As a result of the US
penal expansion, imprisonment and associated practices (for example,
parole) consume large portions of county, state, and Federal budgets,
threaten the sustainability of other social services such as education, and
deepen social inequality (Jacobson 2005; Western 2006).
2017 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol56 No 4. December 2017
ISSN 2059-1098, pp. 397–418
Another related transformation has occurred in the raison d’ˆ
etre of
criminal punishment. Rehabilitation served as the central purpose of
punishment in many (though not all) states for most of the first half of the
20th Century. In theory, the penal system sought to transform individual
offenders into prosocial, law-abiding citizens. In the 1960s and 1970s, this
rehabilitative ideal became a target of intense criticism (Martinson 1974).
As a result, into the 1980s, ‘correctionalism’ lost status as the guiding
principle within the penal field (Garland 2001).
In the now classic article, ‘The new penology: notes on the emerging
strategy of corrections and its implications’, Feeley and Simon (1992) argue
that the primary aim of criminal justice has shifted from transforming
individual offenders to general security – often termed ‘public safety’ –
through the identification and management of populations defined in terms
of risk or dangerousness. Ultimately, the aim of the new penology ‘is not
to eliminate crime but to make it tolerable through systemic coordination’
(Feeley and Simon 1992, p.455). The new penology ‘reflects the lowered
expectations for the penal system that result from failures to accomplish
more ambitious promises of the past’ (p.456).
With a few key exceptions (Feeley 1983; Feeley and Rubin 1998),
scholarship on the new penology has focused largely on the back-end
of the penal system. Pretrial detention and bail are especially neglected
topics of analysis, which is rather surprising given the size and impact
of these institutions. On any given day, approximately half a million
people are in American jails because of pretrial detention (about 158 per
100,000 residents) (Open Society Justice Initiative 2011, p.16). The share
of felony-accused detainees who are required to post monetary bail to be
released from jail rose from 54% in 1990 to 70% in 2006. Surety bond
surpassed release on recognisance in 1998 as the most common type of
pretrial release (Cohen and Reaves 2007). Roughly 14,000 commercial bail
agents nationwide secure the release of more than two million defendants
annually (Cohen and Reaves 2007).
This article examines the history of bail in the US to understand
if this important institution fits within the general narrative of penal
transformation during the 19th and 20th Centuries. Preventive detention,
risk assessment, and public/private partnerships (and outright privatisa-
tion) characterised bail long before the concept of a new penology was
introduced. But bail is not the same animal today that it was in earlier
years. The incorporation of neoconservative and neoliberal political
rationalities into bail led to the formalisation and intensification of old
practices along with the development of new techniques of discipline and
control.This is not a tale of ‘old’ to ‘new’ – there is no clean break or
radical transformation. In many respects, the old and new are hard to
distinguish, for they gradually blend over time.
The history of bail suggests that the view of radical penal transforma-
tion – as well as our collective impulse to show just how much things have
changed – obscures continuity from the past to the present, leading to
an overly-romanticised view of earlier times. This case study encourages
us to ask not if punishment in general or particular penal institutions
2017 The Howard League and John Wiley & Sons Ltd

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