A Right to Liberty: Juvenile Cash Bail Reform

The National Juvenile Defender Center (NJDC) is launching a project, A Right to Liberty, with its partners to address the use of cash bail in juvenile courts and ensure that children’s liberty interests are secured.

In certain states and U.S. territories, after an arrest — wrongful or not — a child’s ability to go home depends on their ability to post bail.

Based on our review of states laws, as of April 2019:

19 states and U.S. territories have statutes or court rules that expressly allow for the use of bail with children in juvenile courts.

9 states and U.S. territories expressly prohibit the use of bail in juvenile court by statute or court rule.
28 states and territories neither authorize nor prohibit the use of bail in juvenile court by statute or court rule.

Below, the interactive map provides additional information on state and U.S. territory laws related to juvenile cash bail.

The sole purpose of cash bail in the legal system is to ensure that an accused person appears in court; not to keep them locked up.

Our National Snapshot…

A Right to Liberty: Reforming Juvenile Money Bail, is our qualitative study on the use of money bail in juvenile courts across the nation. This national snapshot is based on statutory analysis and interviews with juvenile defenders in every state, the District of Columbia, and Puerto Rico, that examines how state laws governing money bail in delinquency proceedings are put into practice in local jurisdictions and how those practices can impact youth and their families in the juvenile legal system. A Right to Liberty reveals that money bail is used with “shocking regularity in juvenile courts, not as a mechanism for ensuring that young people have a right to liberty, but as a means of ensuring that youth are kept behind bars without any finding of guilt.” Click here to view and download.

The History of Juvenile Cash Bail…

The United States Supreme Court ruled in Stack v. Boyle, 342 U.S. 1 (1951), that bail proceedings should be used to keep people out of jail until a trial has found them guilty, rather than to keep people in jail until it is convenient to give them a trial.

Allowing a child or young person to remain out of detention affords them the opportunity to assist in their defense through the identification of evidence and witnesses and without barriers of access to their legal counsel. When the bail amount is set at a figure higher than reasonably calculated to ensure the person’s presence in court, it violates the 8th Amendment of the U.S. Constitution.

Allowing a child or young person to remain out of detention prior to trial safeguards their right to liberty and the presumption of innocence.

The national dialogue on the unjust nature of cash bail in the adult criminal legal system and the strong movement for reform has largely neglected to shine a light on the use of cash bail in juvenile delinquency proceedings.

Very little, if anything, has been written on state laws governing bail in delinquency proceedings and even less is known about how such laws are put into practice at the local level or how cash bail affects youth and their families in the juvenile system.

Bail reform efforts must examine and address how state laws governing bail for children have been put into practice and how those practices impact youth and their families.

Advocating Against the Pretrial Detention of Youth…

A Right to Liberty: Resources for Challenging the Detention of Children

Ensuring a child or young person remains out of detention prior to trial safeguards their right to liberty and the presumption of innocence. The resources contained in this toolkit can be used to uphold and advance children’s liberty interests at the individual level and in policy advocacy.

Included in the toolkit:

A Right to Liberty: The Origin of Bail
Annotated Bibliography on Risks Associated with Incarceration
Sample Habeas Petition Challenging the Pretrial Detention of Children

Sample Habeas Petition Challenging the Pretrial Detention of Children

Because detention orders are not typically appealable, writs of habeas corpus are one way to push for a hearing to challenge the legality of the initial detention, when there are few or no other mechanisms for review. This is an example of a writ and supporting memorandum of law that juvenile defense attorneys might adapt in their own cases.

Watch our webinar for juvenile defense lawyers on decreasing the pretrial detention of young people in the juvenile justice system.

Juvenile Cash Bail in the News…

American Bar Association —

Read the ABA’s resolution and report against the use of bail with children.

A National Partnership

The National Juvenile Defender Center is proud to be a part of the National Partnership for Pretrial Justice which is supported by Arnold Ventures.

Call to Action for Reform

If you are interested in participating in these reform efforts, or would like to share a story on how cash bail is being used in your state, please contact Sherika Shnider at sshnider@njdc.info.