The History of Misdemeanor Bail

Bail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the impact of being denied bail on those charged with misdemeanors. However, there is a lack of theoretical scholarship explaining defendants’ rights when it comes to misdemeanor bail. There is also a lack of historical perspective in determining how we have dealt with misdemeanor crimes. Considering this historical perspective, we learn that misdemeanors have always been plentiful but it is only recently that they have become a serious problem and that their impact has become as serious as felony offenses. This Article strives to a first step toward creating a theoretical footing for misdemeanor bail decisions by considering the historical role of misdemeanors and discussing the importance of creating an analytical framework for making these decisions.