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.
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…
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 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…
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
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…
Call to Action for Reform