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Perhaps the most difficult assessment a judge must make is in deciding bail. The various articles in this issue raise the inherent difficulties with a cash bail system, but for the vast majority of judges, that is the system they must implement . . . at least for now. Judges know they must be competent in the law and perform judicial duties without bias or prejudice (ABA Model Code of Judicial Conduct Rules 1.1, 2.2, 2.3). And yet, the bail system as created by law gives little legal guidance in any individual circumstance and we know, from the research, inherently incorporates bias.
Every judge reading this issue is likely reviewing his or her own recent decision making and questioning the influences that led to that particular outcome. Was the amount too high for...