Beyond Cash Bail Balancing Crime Control and Rights Protection in Pretrial Release

Abstract

This academic article aims to study the concepts, principles, and challenges of the pretrial release system within the criminal justice process. It focuses on analyzing the impact of the cash bail system on the rights and liberties of suspects or defendants, as well as examining the balance between crime control and human rights protection under Herbert L. Packer's Crime Control Model and Due Process Model.

The study reveals that although Paragraph 2 of Section 29 of the Constitution of the Kingdom of Thailand B.E. 2560 (2017) and Section 107 of the Criminal Procedure Code formally guarantee the rights of suspects or defendants—including the presumption of innocence and the right to pretrial release—in practice, Thailand's pretrial release system still heavily prioritizes financial collateral or cash bail. This reliance perpetuates socioeconomic inequalities in accessing these rights, particularly affecting low-income or impoverished suspects and defendants who may face detention during trial without a final judgment. Consequently, this practice negatively impacts human dignity and exacerbates prison overcrowding.

A comparative analysis with foreign jurisdictions, specifically certain U.S. states such as California, indicates a growing transition from cash bail systems toward Pretrial Risk Assessment frameworks. These frameworks prioritize objective risk indicators—including flight risk, potential interference with evidence, and public safety—over financial capacity, thereby reducing socioeconomic disparity and aligning with international human rights principles.

Accordingly, this academic article proposes that Thailand develop a standardized, transparent, and accountable pretrial risk assessment mechanism to complement or replace the sole reliance on financial collateral. Additionally, non-custodial alternatives to detention or imprisonment should be promoted to achieve a sustainable balance between public safety and the protection of individual liberties, fostering a more equitable criminal justice system grounded in the rule of law.