Supervision by the state of defendants who have not yet been convicted erodes the presumption of innocence and has unfortunately become routine in this country. The growth of the penal state over the last 50 years relied on risk assessing and the employment of government programs to trammel on individual civil liberties in the name of being free from jail rather than respecting such rights. Plus, the pre-disposition period, particularly in lower-level offenses, is so short that whatever is being done with the defendant will most certainly come to an abrupt end. Instead, jurisdictions are better o putting resources into diversion programs or post-conviction programs that will address criminogenic needs and reduce recidivism or putting their efforts in programs to divert defendants out of the criminal justice system after they are arrested.

The drafters of the Judiciary Act of 1789 did not have electronic surveillance techniques available to them when they put the modern architecture of our court system together. There is no reason for them now on a pre-conviction basis, unless the state can make an individual showing. They are resource intensive and have not, since introduced, been revolutionary in reducing or solving pre-disposition crime.

All bail conditions of supervision or monitoring by the state should be individualized and not assigned by a computer or schedule.

They should be limited to a specific class of cases (i.e., violent or felony cases, or DUI cases—example: interlock devices). A prosecutor must demonstrate the need for such a condition and the court then must agree that such condition is necessary to meet the purposes for which bail is set in the first place.