LOS ANGELES — A new report released Tuesday warns that states across the country are quietly changing their constitutions in ways that could make it easier to keep people in jail before trial, even though they have not been convicted of a crime. The report, released by The Bail Project, examines recent changes to state constitutional language around bail and finds a growing pattern: more people can now be detained before trial, and fewer protections are guaranteed to them, according to the organization.
The report is titled Detention by Design: The Constitutional Crossroads of Pretrial Justice, and it focuses on amendments proposed or passed between 2021 and 2025. Many of those changes, The Bail Project says, are happening with little public awareness.
“The right to bail was meant to guarantee release before trial,” the report states. Instead, The Bail Project argues that recent amendments are moving states in the opposite direction, allowing broader pretrial detention and tying freedom more closely to money.
David Gaspar, chief executive officer of The Bail Project, said the changes are easy to miss because they are buried in legal language. “A quiet constitutional crisis is unfolding in America,” Gaspar said. “State by state, the right to bail is being rewritten.”
According to the report, more than a quarter of states with a constitutional right to bail have proposed or passed amendments in just the past four years. Most of those amendments expand who can be held in jail before trial, The Bail Project reports.
Many of the changes rely on broad language about “risk,” giving courts more discretion to detain people before trial. The report warns that this kind of wording can allow people to be jailed without strong evidence or clear limits on when detention should be used.
The report also finds that cash bail remains deeply embedded in many states’ systems. In places such as Ohio and Wisconsin, constitutional language now emphasizes the ability to impose financial conditions for release. According to The Bail Project, this means whether someone goes home or stays in jail can still depend on how much money they have.
Civil rights advocates say systems that rely on cash bail do not just affect court outcomes — they affect people’s lives. The American Civil Liberties Union has long warned that when freedom depends on money, low-income communities and people of color are hit the hardest.
According to the ACLU, people who cannot afford bail often remain in jail for days or weeks before trial, even when they pose little risk. During that time, they can lose jobs, fall behind on rent, or struggle to care for their families — all before a court has determined whether they are guilty of any crime.
Advocates say that pressure can push people to plead guilty simply to get out of jail, raising serious concerns about fairness and due process in the criminal legal system.
The organization also points out that basic protections are often missing from state constitutions. Of the 41 states that include a right to bail, only nine guarantee protections such as a hearing, access to a lawyer or limits on how long someone can be detained before trial, according to the report.
Erin George, national director of policy at The Bail Project and lead author of the report, said the changes have largely gone unnoticed because constitutional amendments can seem abstract or overly technical. “Though these amendments may seem technical, their impact is sweeping,” George said.
The report highlights Texas as an example of how public advocacy can still influence outcomes. In 2025, organizing efforts helped secure an amendment that included stronger protections, such as guaranteed legal counsel at detention hearings and a requirement that detention be justified by “clear and convincing evidence,” according to The Bail Project.
The report is intended to help advocates, journalists and the public better understand how bail laws are changing and what those changes could mean. It includes background on how the right to bail has evolved, examples from different states and guidance on what safeguards can help protect pretrial liberty.
“These changes strike at the foundation of pretrial freedom,” Gaspar said. The full report is available through The Bail Project.
Follow the Vanguard on Social Media – X, Instagram and Facebook. Subscribe the Vanguard News letters. To make a tax-deductible donation, please visit davisvanguard.org/donate or give directly through ActBlue. Your support will ensure that the vital work of the Vanguard continues.
