CASH BAIL clients needed one thousand dollars or more in cash to post bond. 37 Remarkably, the Justice Policy Institute found that indigent defendants pay over $1.4 billion per year to the com-mercial bail bond industry. 38 Furthermore, according to the Bail Project, the use of cash bail “creates a two-tiered system of justice.” 39 While defendants with suffi cient money to pay bail return to their lives, fi ghting their cases outside of jail, the indigent may “lose their jobs, housing, and even custody of their children as they wait for their case[s] to progress.” 40 Indeed, the downstream effects of misdemeanor pretrial detention are striking, according to a Stanford Law Review article. 41 Research shows that pretrial de-tention contributes to an increase in guilty pleas, jail time, and recidivism for the indigent. In fact, there is a 20 to 30 percent increase in new charges associated with pretrial detention. 42 Also, pretrial detainees are 25 percent more likely to plead guilty and 43 percent “more likely to be sentenced to jail” with sentences “more than twice as long on average.” 43 There are many stunning examples of how the current U.S. bail system has impacted people. 44 One particularly disturbing instance involves a man who was held in jail for two months before being acquitted. 45 During that time, he lost his job, his car, and his family. He was unable to fi nd another job until four months afterwards. Other even more disturbing stories involve the mentally ill. One such case involves Janice Dotson-Stephens, who was arrested for trespassing on private property. 46 The 61-year-old black grandmother died after being held in jail for fi ve months on a $300 bond because she was unable to pay the bail amount. 47 According to Dotson-Stephens’ family, she “wasn’t a criminal. She had mental health illness.” 48 Another similar case involves Debora Ann Lyons, who was arrested for shoplifting at Walmart. 49 The stolen items totaled only $155, yet bail was set at $1,500. Like almost half a million people nationwide who are detained in local jails because they cannot afford bail, 50 Lyons was unable to pay the bail amount in order to purchase her release. According to the Houston Chronicle, the 58-year-old, who “suffered from schizophrenia and bipolar disorder,” committed suicide by hanging herself in jail. 51 Despite these tragic stories, like the English jurist William Blackstone clearly stated in 1765, 52 U.S. federal courts in contemporary times assert that “a bail setting is not consti-tutionally excessive merely because a defendant is fi nancially unable to satisfy the requirement.” 53 However, according to Chief Justice William Rehnquist, writing for the majority in the U.S. Supreme Court case, United States v. Salerno , “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” 54 Moreover, Chief Justice Fred Vinson, writing for the majority in the seminal U.S. Supreme Court case, Stack v. Boyle , stated that bail is “excessive” when “set higher than an amount reasonably calculated” to ensure the defendant’s presence at trial. 55 Thus, Vinson clarifi ed that bail must be set after considering each defendant’s circumstances, thereby defending the “traditional right to freedom before conviction,” but fi nding that pretri-al freedom comes with conditions. 56 Accordingly, the Court 26 VIRGINIA LAWYER | August 2019 | Vol. 68 | CRIMINAL LAW SECTION subsequently affi rmed in Bandy vs. United States that pretrial detention solely due to the indigence of the defendant is a clear denial of equal protection of the law under the Fourteenth Amendment. 57 U.S. Bail Reform Bail reform in the U.S. “is nothing new.” 58 Indeed, criminal justice reform is gaining momentum. Since the founding era, the U.S. has experienced two waves of bail reform: the fi rst in 1966, and the second in 1984. In 1966, the U.S. Congress enacted the Bail Reform Act, the fi rst federal guidelines with the purpose of setting bail to prevent the needless detention of indigent defendants and intended to permit pretrial release with as little monetary burden as possible. 59 The next major change to U.S. bail law occurred with the Bail Reform Act of 1984. Under the Act of 1984, courts also had authority to evaluate whether a defendant posed a “danger to the commu-nity” when deciding whether to allow pretrial release. 60 Today, a third wave of reform is developing among several states due to persisting concerns about the pretrial detention of defendants who cannot afford bail. Like the bail reform advocates in 1966 and 1984, advocates today direct “compelling policy concerns” about money bail to legislators. 61 In addition, modern bail reform advocates argue cases before courts, supported by the position that “money bail is unconstitutional.” 62 Numerous courts have, indeed, heard legal challenges re-garding whether money-bail systems violate the Constitution’s Due Process and Equal Protection Clauses, as class-action lawsuits addressing the “unequal use of money bail” have been fi led against various jurisdictions. 63 Some courts have found that money-bail systems which reasonably ensure a defen-dant’s subsequent court appearance are constitutional. Other courts have indicated that bail systems which detain indigent defendants pretrial, without considering ability to pay, may be unconstitutional. Hence, several states and municipalities have reformed their bail systems. Some jurisdictions have begun to implement pretrial release programs that involve pre-trial services, 64 while other jurisdictions have embraced pretrial justice reform measures that have effectively eliminated cash bail. In recent years, some of the various jurisdictions that have either altered or abolished their money-bail systems include cities in Georgia, Alabama, and Maryland. Some states that have reformed their money-bail systems using “individualized risk assessment tools” as opposed to “the nature of the offense charged” include California, Colorado, and New Jersey. 65 In fact, California is “the fi rst state in the nation” to effectively abolish cash bail for defendants awaiting trial. A California appellate court concluded in 2018 that the state’s cash bail sys-tem violates the “fundamental constitutional right to pretrial liberty” of indigent defendants, and is, therefore, “unconstitu-tional.” 66 Under the new law, the California Money Bail Reform Act, defendants charged with most nonviolent misdemeanors would be automatically released “within twelve hours of book-ing.” 67 In other cases, the new “pretrial risk assessment” system, which will be conducted by “Pretrial Assessment Services,” will www.vsb.org