Thanks to the Fifth Amendment,1 the U.S. cannot lock someone up “without due process of law.” At an arrested person’s first appearance in court (arraignment), a judge decides whether the accused waits in jail or outside it.
If he leaves, how do you get him back? Holding cash was the traditional answer. But “cash bail” has fallen out of political favor, as critics consider it unfair to people who cannot afford to pay.
New York’s approach took shape during the bail-reform movement of the 1960s. Vera’s Manhattan Bail Project tested releasing defendants on the strength of their “community ties”—nearby family, a steady job, and years living in the city.
Lawmakers then considered letting judges detain people believed dangerous. Legal Aid, the NYCLU and other opponents warned of unreliable predictions and of racially discriminatory detention. So that proposal to consider public safety in bail decisions was dropped from the criminal-procedure overhaul that became effective in 1971.
A New York judge can set bail to get someone back to court, but cannot use it simply to protect the public from him. Illinois abolished cash bail in 2023 but lets judges keep people in jail when supervised release onto the streets would endanger others.
NYC’s Criminal Justice Agency already flags poor bets for returning to court. In a 2025 study, roughly seven in ten released cases in its small, least reliable group led to an arrest warrant for missing court.
Even after a defendant misses court, the law generally requires another notice and at least two days to return before an arrest warrant. Protecting a defendant from detention should not mean asking everyone else to take his cooperation on faith.
The Fifth Amendment binds the federal government. The Fourteenth Amendment imposes the same due-process requirement on state and local governments, including New York.