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When individuals are arrested or indicted for a crime, governments have legitimate interests in assuring that those individuals show up for future legal proceedings and also do not cause more social harm in the meanwhile. To serve those legitimate interests, governments may restrain the personal liberty of those presumptively innocent individuals--traditionally accomplished either by incarceration or by release subject to certain sureties and conditions. The choice, in short, is between jail and bail. Currently, governments skew that choice by subsidizing the costs of jail but not bail. The result--wholly predictable given the size and asymmetric nature of the subsidy--is that the United States maintains an inefficiently large jail population that both costs taxpayers too much and excessively limits the liberty of too many. Prior commentators and reformers have correctly identified the overuse of pretrial detention in jails as a major public policy crisis and have urged substantial reforms to current bail processes up to and including the abolition of state constitutional rights to bail (as one state has recently done). We believe that the hostility toward bail overlooks the root cause of the problem, which is the asymmetric subsidization of jail over bail. We propose a balanced subsidization system that can preserve the beneficial aspects of a traditional bail surety system while (i) reducing unnecessary and inefficient restraints on individual liberty, (ii) addressing the distributional inequities of current practices, and (iii) saving taxpayers billions of dollars per year. [ABSTRACT FROM AUTHOR]

The article examines bail reform in the U.S. both in order to compare the position with Australia and to understand the background to the current momentum in favour of objective, formulaic risk assessment tools, as of June 2019. Topics discussed include history of the Bail Reform Act of 1966; amendments to statutory laws which authorized detention without bail or restrictive conditions of release based on dangerousness; and the U.S. court case "United States v. Salerno."

The article focuses on the treatment of poverty tax inherent in criminal cases in the U.S. Topics discussed include policing practices that bring low-income people into the criminal justice system; use of individualized bail assessments by judges for supporting poor families; and analysis of collateral consequences of criminal convictions.