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The American system of bail is fundamentally incapable of doing the job we expect from it. Those with money, regardless of its source or their danger to the community, can purchase their freedom while poor defendants remain in jail pending trial, which can sometimes last years. The “Solutions” section will provide a brief overview of recommendations given by some of the leading agencies in the country on pretrial release issues and then outline what various jurisdictions have done to help remedy the issue. Hyperlinks are provided in headings, bill names, and throughout the article should you wish to pursue a more in depth analysis. The Pretrial Justice Institute has eight recommendations that will help jurisdiction move from resource-based to risk-based bail decisions-making process, including the adoption of a pretrial risk assessment instrument; implementation of pretrial supervision and monitoring; issuance of a citation in lieu of arrest; elimination of bond schedules; early screening by an experienced prosecutor; presence of defense counsel at the initial release hearing; ensure the due process of the individuals who are required to post bond; and a compilation of useful data to make informed decisions. In August 2017, the American Bar Association urged federal, state, local and territorial governments to promote public safety and assure that defendants appear in court by adopting policies and procedures that:1. Favor release of defendants upon their own recognizance or unsecured bond;2. Require that a court determine that release on cash bail or secured bond is necessary to assure the defendant’s appearance and no other conditions will suffice for that purpose before requiring such bail or bond;3. Prohibit a judicial officer from imposing a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant’s inability to pay;4. Permit a court to order a defendant to be held without bail where public safety warrants pretrial detention and no conditions of pretrial release suffice, and require that the court state on the record the reasons for detention; and5. Bar the use of "bail schedules” that consider only the nature of the charged offense, and require instead that courts make bail and release determinations based upon individualized, evidence-based assessments that use objective verifiable release criteria that do not have a discriminatory or disparate impact based on race, ethnicity, religion, socio-economic status, or sexual or gender identification.pretrial risk assessment A pretrial risk assessment (PTRA) instrument or tool provides an objective analysis of whether an arrested person is likely to appear in court and not get rearrested if released before trial. Using a pretrial risk assessment tool reduces bias and subjectivity in court decisions about who should be detained before trial and which conditions, if any, should be required of those who are released. A typical risk assessment instrument is a questionnaire or form that identifies information that categorizes defendants as having lower, medium, or higher risk for pretrial failure. The Federal Pretrial Risk Assessment Instrument was developed in 2009 after a case study of approximately 200,000 inmates. The PTRA was constructed to predict a released defendant’s risk of failure to appear, re-arrest for new criminal activity, or pretrial revocation. In 2018, a revalidation study was completed by Thomas H. Cohen and Christopher T. Lowenkamp to test the PTRA for predictive biases. The findings from the research show that the PTRA performs well predicting various forms of pretrial violations including re-arrests for any or violent offenses, failure to appear, pretrial revocations, or a combination of these outcomes. This finding supports the contention that officers of the court can use the PTRA to gauge a defendant’s likelihood of committing pretrial recidivism and hence apply this instrument when making release recommendations. Moreover, the research demonstrated that the PTRA can predict violations irrespective of defendant’s race, ethnicity, and gender. These findings are supportive of a growing literature showing that risk instruments like the PTRA can be utilized to assess recidivism risk and inform criminal justice decisions without exacerbating biases in the criminal justice system.Pretrial supervision and monitoring Pretrial supervision involves reminding people of upcoming court dates and supporting their compliance with any conditions the court may require when authorizing their release, such as check-ins, stay-away orders, curfews, and drug testing.Courts have discretion in setting pretrial conditions, and the law requires an individualized assessment for each arrested person. Courts can use these assessments to craft a customized plan to support each individual’s pretrial success.It is important to note that imposing unnecessary conditions actually decreases a person’s likelihood of pretrial success. Requiring three in-person check-ins per week during working hours, for example, could cause people to lose the jobs where they are expected to be during those same hours.citation in lieu of arrestGenerally, a custodial arrest must be made if one or more of the factors below are present:There are reasonable grounds to believe the person will not appear in court, or the person has previously failed to appear.There are reasonable grounds to believe the person poses a danger to persons or property, or that the offense will continue.The person has outstanding warrants.A legitimate investigation or prosecution would be jeopardized by release.The person requires physical or mental health care—one example being intoxication.State laws generally prohibit a citation from being issued in two common scenarios:The person refuses to sign a written promise to appear or requests to be taken before a judge.The person does not have or will not provide valid identification, or the provided identification cannot be verified and the person is unwilling to provide fingerprints.The legal principle of pretrial release on least restrictive conditions should start with the initial contact with law enforcement. As such, many arrests for minor offenses can be addressed with the issuance of a citation or summons in lieu of detention. Many jurisdictions now use simple in-field proxy tools to determine if a defendant needs to be taken into custody. Citations divert lower risk offenders from detention, reserving limited space and resources for more dangerous offenders. By providing an alternative to pretrial detention and release processes for certain defendants, citation in lieu of arrest can be considered a component of state pretrial policies.elimination of bond schedulesThe Supreme Court in Stack v Boyle, 342 U.S. 1 (1951), stated that “[b]ail set at a figure higher than an amount reasonably calculated to fulfill [the purpose of assuring the presence of the accused] is ‘excessive’ under the Eight Amendment. The Court further held that to “reasonably calculate” the appropriate bail for individual defendants, courts must conduct bail determinations “based upon standards relevant to the purpose of assuring the presence of the defendant. Id at 5. Broadly speaking, bail schedules are procedural schemes that provide judges with standardized money bail amounts based upon the offense charged, regardless of the characteristics of an individual defendant. These schedules might formally be promulgated through state law, or informally employed by local officials. They may be mandatory or merely advisory, and may provide minimum sums, maximum sums, or a range of sums to be imposed for each crime. Where these types of schedules represent a judicial determination that defendants charged with low-risk offenses ought to be released, the appropriate mechanisms are release on recognizance or unsecured appearance bonds. Otherwise, these low bail amounts simply serve as an arrest fine or tax on those defendants who can make bail, while detaining those who cannot; therefore, the bond schedule should be eliminated. Early Screening by an Experienced prosecutorEarly screening of cases will allow for appropriate charging or timely dismissal, as well as early diversion or problem-solving court eligibility determinations. Prosecutors engaged early in the case can use the pretrial risk assessment instrument to aid in their bail arguments at the initial appearance, to include details needed to request preventive detention if available.Early Screening can also help:Reduce needless pretrial detention based on bail decisions made using arrest charges;Air prosecution in determining the most appropriate recommendations for pretrial release or detention;Dispose of weaker cases sooner and target resources to high level cases; and Identify defendants eligible for diversion and other alternatives to adjudication. Presence of defense counsel at initial appearanceThe Supreme Court in Gideon v. Wainwright, 372 U.S. 335 (1963), ruled that under the Fourteenth Amendment defendants were entitled to counsel in criminal cases. Additionally, in Rothgery v. Gillespie County, 554 U.S. 191 (2008), the U.S. Supreme Court ruled that the initial bail hearing is a critical stage in the criminal case because liberty is at stake.Jurisdictions should ensure that defense counsel is engaged prior to the initial appearance and is prepared to represent the defendant on the issue of bail. Should the jurisdiction also use a pretrial assessment instrument, defenders can use it to aid in their bail arguments at the initial appearance, to include offering rebuttal presumptions in cases where that is appropriate.availability of detention with due processPreventive pretrial detention is a tool that courts can use to detain certain people accused of crime until their cases are resolved. Research and experience show that most people who come into contact with law enforcement can be safely released to the community before trial with either a reminder to appear in court or minimal supervision. In some jurisdictions, however, courts may choose to preventively detain a small number of people for whom no release conditions can reasonably assure public safety and appearance in court. Ideally, only people charged with certain violent or very serious offenses should be eligible for preventive detention, and the decision-making process should follow specific, transparent steps, also known as “due process.” When an arrested person meets the eligibility criteria, the prosecutor may request a detention hearing where the detention-eligible person is represented by defense counsel and has a right to question any witnesses. Before entering a detention order, the court should find clear and convincing evidence that the person poses an extremely high risk of danger to the community or of flight to avoid prosecution and that no condition or combination of conditions can provide reasonable assurance of safety or appearance.Collection and analysis measuresIn order to gauge more accurately the effectiveness of pretrial decision-making, jurisdictions need to collect and analyze its compiled data. Often, data needed exists in various locations - the state criminal history repositories, jails, police departments, sheriffs' offices, courts, and local pretrial services or probation departments. Jurisdictions should establish communication between agencies to help ensure that there is interoperability of data systems, or the development of data warehouses, to allow for the most accurate information available.WHAT HAVE THEY BEEN DOING AROUND THE COUNTRY?Requiring mandatory release on personal recognizance or unsecured bond, or a presumption of release on personal recognizance or unsecured bond, in certain low-or moderate-risk cases.Monetary conditions are either eliminated or viewed as a last resort, to be imposed only if necessary to ensure future court appearances. If monetary conditions are imposed, individualized review is required. Providing by statute for a specific list of non-monetary conditions that may be imposed in lieu of money bailIf any conditions are imposed, mandating use of the least restrictive conditions or combination of conditions to ensure public safety and future court appearances.If conditions are imposed, creating a procedure for timely review.Mandating or strongly encouraging the use of locally- validated and empirically-based risk assessment tools.Establish a right to counsel at bail hearings.Alaska (2016) SB 91Alaska adopted a statutory system governing pretrial release that relies on a combination of risk assessment and pretrial service recommendations. Release decisions are now made based on the alleged offense and the defendant’s risk, as assessed by a validated pretrial risk instrument. Key HighlightsMandatory release on personal recognizance for low-and moderate-risk defendants charged with non-violent, non-DUI misdemeanors and class C Felonies. Courts may require compliance with pretrial supervision, so long as they are the least restrictive conditions necessary. Created pretrial services program to conduct pretrial risk assessmentReclassified Class C felonies to the list of offenses for which officers are allowed to issue a citation in lieu of arrest. Arizona (2016) R-16-0041Arizona Supreme Court stepped in when bail reform attempts failed in the state legislature by amending the Rules of Criminal Procedure. Key HighlightsEliminates the requirement for a secured bond Includes a presumption of release on own recognizanceIncluded non-monetary conditions for pretrial supervision.Eliminated the bail schedule and mandates monetary conditions be individualized Established the right to counsel in misdemeanor cases for the purpose of determining release conditions. Colorado (2013) HB 13-1236In 2013, Colorado reformed their bails laws to include an expanded definition of and individualized approach to setting bail, providing non-monetary conditions of pretrial release, and encouraged the use of an evidence-based risk assessment. Key HighlightsPresumption of release under the least restrictive conditions.Mandated consideration of defendant’s ability to payIf practicable, mandated the use evidence-based risk assessment instrumentOutlined conditions for pretrial supervision, including telephone contact, counseling, mental health/substance abuse treatment and GPS monitoring. Connecticut (2017) HB 7044Connecticut legislation bars cash-only bail and restricts judges from setting bail for misdemeanors in most circumstances. Judges retain discretion to impose bail for defendants with a record of not appearing in court or considered to be a flight risk. Key HighlightsCourts are required to accept surety bonds from defendants (bars cash only)Requires the court to remove financial conditions to release for defendants unless:The individual is charged with a family violence crime;The individual requests financial conditions for release; orThe court makes a finding on the record that there is a risk of failure to appear or threat to the safety of the community. Illinois (2017) SB 2034Illinois legislation makes clear that cash bail is not required for people charged with a non-violent misdemeanor or low-level felony, and imposes a presumption against money bail in such cases. If a cash bond is imposed, it requires a rehearing within 7 days. Key HighlightsIncludes a presumption of release with non-monetary conditions and requires imposition of only the least restrictive conditions necessary to assure the defendant’s appearance. If a cash bond is required and defendant is unable to post bail, and is charged with non-violent misdemeanors or Class 3 or 4 felonies, a bail review hearing must be heard within 7 days of bail being set. Allows courts to reconsider conditions of release if sole reason for incarceration is inability to post monetary bail.Defendant’s charged with non-violent misdemeanors or Class 3 or 4 felonies receive a $30 deduction from money bail for every day incarcerated. Kentucky (2011) HB 463Legislation required judges to release low-and moderate-risk defendants without financial conditions. Judges maintained their discretion but must make a finding in writing for the deviation. Key HighlightsRequires pretrial release without financial conditions:If the defendant is low risk and likely to appear in courtIf identified as moderate risk and subject to GPS monitoring, drug testing and increased supervision.Allows officers to issue a citation in lieu of arrestRequires written findings when release is deniedProvides a $100 credit toward the amount of bail for each day the defendant remains in jail prior to trial. Requires the use of evidence-based practices in supervision and intervention programsMaryland (2017) Rules Order Maryland’s Court of Appeals adopted a new rule that requires judges to consider non-financial conditions of release before using money bail. If the judge decides that money bail is necessary to ensure the defendant’s return to court, the judge cannot impose a bail amount that is unaffordable. Key HighlightsIncludes presumption of release on own recognizance and requires written findings in the event of court’s denial. Requires individualized assessment when imposing conditions of releaseEliminates bond schedulesRecommends pretrial services and use of risk assessment toolNebraska (2017) LB 259Legislation does not require cash bail for nonviolent misdemeanors or low-level felonies such as theft, prostitution, DUI, or drug possession. In such cases, there is a presumption for non-monetary bail; including electronic home monitoring, curfews, drug counseling, and in person reporting. The law also requires judges to consider a person’s ability to pay as a factor in the setting the bond. Key HighlightsRequires court to consider all methods of bond and conditions of release to avoid pretrial incarceration. Allows the court to order pretrial services.Removes provisions allowing the court to consider defendant’s character and mental condition in setting bond. Court is required to consider the defendant’s financial condition if the defendant cannot be released on their own recognizanceNew Jersey (2014/2016) S946 3RNew Jersey’s bail reform efforts are the product of legislation and a constitutional amendment approved by voters in 2014 that allows judges to detain certain offenders without bail. New Jersey’s Bail Reform and Speedy Trial Act eliminates bail in most minor criminal cases. It also requires courts to use the PSA risk assessment tool to decide whether a defendant should be released pretrial.Key HighlightsPresumption of release upon conditionsMoney bail shall only be set when court finds, after considering pretrial risk assessment, that no other conditions would reasonably assure the defendant’s appearanceRequires the least restrictive conditions to assure defendant’s future appearance in court. Requires release of certain defendants after 90 days who are unable to meet monetary conditions of bail. Establishes right to counsel at pretrial detention hearing. New Mexico (2016) Constitutional Amendment 1New Mexico’s recent constitutional amendment prohibits the detention of defendants who are not deemed dangerous or a flight risk “solely because of financial inability” to pay bail. For those who claim to be too poor to afford bail, the measure lays out a process by which they “may file a motion with the court requesting relief from the requirement to post bond.”Key HighlightsCourt has authority to deny bail when clear and convincing evidence is presented that no release conditions will reasonably protect the safety of any other person or the community. Prohibits the detention of defendants who are not deemed dangerous or a flight risk solely based on inability to pay a monetary bail. Creates a process for defendants unable to afford bailRequires pretrial release hearing within 3-5 days of arrest. Washington DC (2016) §23-1321Washington, D.C. has a bail-free (i.e., cashless bail) system of pretrial release. Under D.C.’s pretrial release system, defendants may be subject to a number of non-monetary conditions.Key HighlightsRequires the court to release a defendant on their own recognizance, or an unsecured appearance bond, subject to the condition that the defendant not commit a crime during the period of release, unless the court determines that the release will not reasonably ensure public safety and future appearances in court.Requires least restrictive conditions that will reasonably ensure public safety and future appearances in court. Provides a review of the conditions set by the court after 24 hours if the defendant is unable to meet the conditions. If the court does not amend conditions for release, must provide in writing reasons for the conditions imposed. Philadelphia (February 2018) Press Release Philadelphia District Attorney announced that the Philadelphia District Attorney’s Office will no longer ask for cash bail for low-level offenses. Atlanta (February 2018) Ordinance 18-0-1045The local ordinance eliminated cash bonds to secure release from the City of Atlanta Detention Center following an arrest for violation of non-violent city ordinances. Key HighlightsReleases defendants on their own recognizance or signature without the requirement of a financial obligation for non-violent crimes. Initial appearance hearing heard within 48 hours after the time of arrest. If a bond is established, the court must make a written finding regarding the defendant’s ability to pay. ................
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