The practice of cash bail in the United States is changing. For the past few decades, the cash bail system is abandoning pretrial release and shifting the burden to the defendant thereby abandoning innocence until proven guilty. Bail hearings are increasingly less individualized and discriminatory because of risk assessment tools and judicial discretion without requiring justification, leading to indigent defendants facing unprecedented detainment solely for not being able to afford bail, and thus, violating due process of law. This Note focuses on two 2021 decisions: the California Supreme Court’s decision in In re Humphrey, ruling to partially maintain cash bail, and Illinois’ Pretrial Fairness Act, eliminating cash bail by 2023. This Note argues each state must fully eliminate cash bail to restore indigent defendant’s constitutional rights by highlighting the constitutional concerns which remain prevalent in California and how Illinois’ decision works to correct cash bail’s discrimination. In conclusion, this Note provides a proposal on how states can effectively eliminate the cash bail system using the Pretrial Fairness Act as a guide with District of Columbia’s foreshadowed success since mostly eliminating cash bail in 1992.



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