Despite its initial success, the bail reform movement withered during the latter half of the 1960s as the War on Poverty gave way to a new offensive on crime. Linking civil rights demonstrations, student protests, and the “long, hot summers” of urban uprisings into a general pattern of lawlessness, conservative politicians argued that America was coming apart at the seams. Their calls for “law and order” were, from the start, designed to play on the racial fears of white Americans. H.R. Haldeman, President Richard Nixon’s chief strategist, bluntly laid out the program’s intent in his personal diary: “[T]he whole problem is really the blacks. The key is to devise a system that recognizes it while not appearing to.”

These widely popularized ideas about race and crime worked to eclipse the narrow reformist moment of the mid-1960s. By the end of the decade, bail reform efforts faced a profound imaging problem. The figure of the indigent defendant drawn by pretrial justice advocate like Kennedy had induced sympathy and was, crucially – as in San Ervin’s North Carolina moonshiner example – white, or, at the very least, racially unmarked. By the time Nixon took office, that image was replaced by a new one: the racially coded, repeat criminal offender.

With little evidence, politicians and law enforcement officials claimed the 1966 Bail Reform Act was responsible for turning these criminals loose on the streets. “The defendant gets the benefit of the doubt; the community gets the benefit of his switchblade,” the popular conservative commentator James Kilpatrick wrote. Seizing on the public’s growing fears, conservatives offered a set of policies designed to clamp down on street crime through prison expansion, block grants that boosted the capacity of local police departments, and tougher bail procedures. Collectively, these policies aimed to incapacitate those Nixon deemed “dangerous hard-core recidivists,” who were “being arrested two, three, even seven times for new offenses while awaiting trial.”



President Richard Nixon Outside the White House Shaking Hands with Metropolitan (Washington, DC) Police Officers

Nothing exemplified the punitive turn in American policy like Nixon’s District of Columbia Court Reorganization Act of 1970. In addition to mandatory minimum sentences for repeat offenders and “no-knock” raids, the Act authorized the use of preventative detention. The first of its kind anywhere in the country, the measure gave judges permission to incarcerate individuals before their trial by denying them bail altogether. Proponents reasoned that the measure would halt the so-called “revolving door” justice system. As the conservative National Review explained, preventative detention “would help especially in narcotics cases, in which the habit may cost the accused from $15 to $100 a day – thereby requiring him to continue mugging or stealing or whatever.”

The D.C. law’s preventative detention procedure was bureaucratically clunky and, in reality, rarely used. While it achieved little in the way of meaningful policy changes, its political impact was immense. The measure changed the conversation surrounding bail by reframing the issue in terms of public safety rather than the civil liberties of the accused. It was a sharp turn away from the philosophy that underpinned the 1966 Bail Reform Act, leading many bail reformers to mark the bill’s passage as the death knell of their movement.

By the time President Gerald Ford took office in 1974, War on Crime crusaders had adopted the “career criminal” – an early invocation of the mythical juvenile “superpredator” – as their primary foe. Both politicians and social scientists argued for new prosecutorial measures to contend with an alleged subset of young, chronic offenders who committed crime chiefly for the thrill. To this end, Ford authorized a special $330 million Career Criminal Program to “incapacitate” the offender, both “pretrial, through high bail recommendations, and post-conviction, through the recommendation of maximum sentences.” As historian Elizabeth Hinton documents in her book From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America, though Ford and his staffers painted the career criminal as ruthless and pathological, the “typical defendant selected for the special prosecution tended to be a single, unemployed black man under the age of twenty-four – with limited opportunities in the formal employment sector who had appeared to make crime into a career.”

Bail wasn’t increasing only in select crime-fighting programs. Across the country, judges began raising bail rates that appeared on predetermined court schedules. Essentially, schedules turned bail into a fee correlated with the defendant’s charge, and obviated the need for individualized assessments. They provided a shortcut for overburdened courts but hurt indigent defendants by failing to take economic resources into account.

Changes made in Cincinnati in 1972 were typical. In that Rust Belt city, where rates had been lowered only eight months before “to remove penalties against poor persons,” judges voted to substantially increase the bail amount that appeared on the city’s schedule. For robbery, they raised the rate from $25 to $1,000 and, for the crime of pandering, from $10 to $500. The prevalence of these schedules – and the move to indiscriminately and significantly apply rate increases – demonstrated a widespread failure to establish pretrial programs like the one Vera implemented only a decade earlier.

The lack of political will – and, crucially, funding – necessary to implement pretrial services in local court systems was dually embedded in the growing focus on crime control as well as newly popularized ideas about the nature of poverty itself. Unlike the heyday of the War on Poverty, by the latter half of the 1960s the notion that poverty was the result of economic deprivation and racial disadvantage was overturned by the argument that poverty was, more simply, a product of culture. Causation was reversed: social scientists and politicians – liberal and conservative alike – insisted that societal problems like crime, breakdowns in family structure, and unemployment were, in fact, themselves causing poverty. President Johnson’s adviser Daniel Patrick Moynihan famously propagated this idea in a memo referring to lower-class black culture as a “tangle of pathology.” Though Moynihan himself insisted that large-scale employment programs offered a remedy, it was his indictment of the black poor that stuck in the mind of the public.

The Harvard political scientist Edward Banfield epitomized the poverty-as-pathology perspective. In a 1968 article, Banfield argued that, because disorder was bred by lower-class culture – in his mind, an inescapable part of urban life – the government was incapable of producing solutions to “end chronic poverty, stop crime and delinquency, or prevent riots.” If the poor’s propensity to commit crimes was inevitable, shouldn’t public policy be oriented toward monitoring and containing criminals and potential criminals? In this ideological framework, dedicating resources to jailing pretrial detainees appeared more logical than supporting pretrial services, which seemed designed only to allow crime to thrive. That was precisely the thinking that won out: By 2002, less than 10% of U.S. jurisdictions operated risk assessment tools like the Vera program.