Pretrial Release: Who is it good for?
Is the decision to grant pretrial release a constitutional right handed down in a bias free manner and is it a successful alternative to the goals of pretrial detention? Throughout history, dating back to the Middle Ages in England there has always been some form of pretrial release, allowing for those accused of crimes to await their day in court at home and continue on with their daily activities and responsibilities. Pretrial release falls under what is known as a common law, which gives defendants their due process rights and the pretrial presumption of innocence, for all crimes other than murder. The modern judicial system claims to believe in blind justice, which is a legal concept regarding the neutrality of the dispensing of justice. Lady Justice comes from Roman mythology; her likeness is often displayed as a symbol of our justice system. She wears a blindfold and holds the scales of justice in one hand and a sword in the other. The scales of justice represent the strengths of the case's support and opposition. The sword represents the authority and idea that justice can be swift and final, while the blindfold represents the ability to dispense justice without prejudice or bias. The granting of pretrial release is not a guaranteed constitutional right, it is however overall granted fairly, based on non-race or gender identifiers and is a less costly alternative; however, it does not guarantee compliance nor can it be a predictor of future adjudication.
There are two Constitutional Amendments that are called into play when pretrial release is either granted or denied. The Eight Amendment prohibits the infliction of cruel and unusual punishment. Remanding someone into custody in overcrowded jails where the use of force by officers is also claimed to be excessive while medical care is lacking. Lawsuits have claimed the conditions experienced in jail deprive prisoners of civilized treatment and therefore unconstitutional (Reinert 1). The Fourth Amendment also bought up in cases for pretrial release base their argument on what the Fourth Amendment was created to protect arbitrary and oppressive interference by law enforcement with the privacy and personal security of individuals. This goes along with the argument that even while granted pretrial release a defendant must give up a level of personal privacy and liberty in order to be released on bail or on their own recognizance. Constitutional challenges to pretrial detention claim vagueness, violation of the right to bail and the presumption of innocence, due process and freedom from excessive bail, all have been rejected by the higher courts in favor of allowing judges to decide based on certain criteria if pretrial release, bail or detention is in order.
When someone stands accused of a crime there are certain conditions that come with being release prior to adjudication. "When a magistrate judge releases an arrested person, the judge must include a clear and specific written statement to serve as a guide for the person's conduct, listing the conditions to which the release is subject" (Wilson 3). There is also the issue with pretrial release conditions when it comes to Forth Amendment rights preventing interference by law enforcement officials and the privacy and personal security of individuals. Those defendants who are granted pretrial release must relinquish some or all of their Fourth Amendment rights in exchange for jail time. These rights are relinquished by the defendant due to the stipulation of their release agreement, such as unannounced searches of their home and person or keeping track of their whereabouts with GPS monitoring (Wilson 1). Those opposed to relinquishing ones Forth Amendment rights in order to gain pretrial release feel it opens the door for the government to abuse their power, and those most likely to be abused are indigent defendants, who might always be required to give up their constitutional rights in exchange for pretrial release (Wilson 11).
Throughout history there have been many changes in how we deal with bail decisions and pretrial release or detention causing fluctuations in our jail population. In 1944 the adoption of the Federal Rule of Criminal Procedure 46 required courts to take into account factors in setting the bail amount to ensure the defendant would show up for trial. As a result of citizens being concerned about excessive pretrial detention being imposed the Bail Reform Act of 1966 was past allowing judges to consider defendants prior record to determine if they were a flight risk. In an effort to keep defendants thought too dangerous to society to be released the 1970 District of Columbia Crime Bill was passed into legislation, which in turn greatly increased the detention population. This bill allowed judges to set bail in amounts higher than defendants could afford, practically guaranteeing their pretrial detention status which greatly increased the detention population. Challenges to the District of Columbia Bill led to legislation called the Pretrial Services Act of 1982 to correct what critics thought as inequalities in bail-setting practices to ensure those who had favorable backgrounds to be released prior to trial in order to decrease jail populations.
Each year approximately 12 million people are booked into jail in the United States, which a majority of inmates are charged with nonviolent crimes. Guilt is the link between crime and punishment and before we can deny freedom or force someone to bear the penalties of that crime legal culpability must be established (Flemming et al.1). Prior to adjudication this link is not formally established, yet a large number of criminal undergo incarceration, incur financial losses and find their liberties taken away only to insure their appearance in court (Flemming et al.1). With more than 60% of pretrial detainees awaiting trial because they simply cannot afford bail (Lyons 2). There is a growing concern about the need to shrink the population of pretrial detainees and to fix our bail for money system. Reformers have offered an array of proposals and assessment tools that are aimed to improve judicial decision-making, however many of these tools combine flight and risk scores together that reinforce problematic judicial practices (Goudin 1).
There have been many alternative solutions to pretrial detention but cost savings do not outweigh the safety and security of our communities when offenders are released. When offenders are granted pretrial release there are common factors that lead to their re-arrests. Technical violations of their release and their revocation rates for new crimes committed are a serious concern for pretrial release recipients. The Arnold Foundation also conducted extensive research on pretrial decision making to help distinguish among defendants who fell at different risk levels and created what they called the Public Safety Assessment (PSA) (Lyons 1). This tool was to help determine how likely a defendant was to fail and commit a new violent crime once released. The researchers determined that this tool would be effective without incorporating a long interview process with the accused (Lyons 2). The state of Kentucky implanted this tool which resulted in no less than a five minute assessment with the defendant and non-financial releases rose 15 percent, which added up to 11,000 more defendants granted release prior to trail since the new policy was put into place (Lyons 2). This new policy was said to have saved the state $40,000 in pretrial detention costs and the state that was already relatively safe became safer. The court reported that appearance rates were slightly up and re-arrests were slightly down even with the increased number of defendants being released on their own recognizance (Lyons 2). James Johnson with the Federal Probation and Pretrial Services gathered statistics based on federal offenders on supervised release prior to trail from fiscal years 2005 to 2012 and included over 360,000 offenders across 94 federal probation offices and returned with different results arguing against pretrial release. He found that overall 5.2 percent of offenders were re-arrested for a serious crime within the first six months of the term of their supervised release and 32.4 percent of offenders were re-arrested within 60 months (Johnson 4). "Not surprisingly, offenders serving terms of supervised release had higher recidivism rates for the majority of the serious offenses (e.g., drugs, violence, and firearms) that did offenders on probation" (Johnson 4). Johnson determined that when released on bail defendants did continue to commit serious offenses even while awaiting the outcome of criminal charges.
Courts currently determine bond amounts and release conditions based on the crime committed, criminal history and demeanor of the offender. Judges typically form their decision not based on race or gender related criteria but use their intuitive judgement which is not always data driven to consider flight risks. There is the risk of judges combining the risk of flight and the dangerousness of the crime, and therefore the offender and overestimate both in order to provide them with political cover (Gouldin 1). Judges take the pleas of defendants wanting to assist in their own cases as a way to flee or find a way to tamper with evidence or the witnesses. Therefore, Judges tend to error on the side of caution to ensure community safety and as a guarantee the defendant will appear for trial and deny pretrial release (Baradaran and McIntyre 504). Since courts do not have the ability to see into the future they have little ability to be able to separate the suspects who are sincere in wanting to help in their own defense and those who will lie and claim their help is needed it is in the best interest to ensure the defendant's presence at trail and the community safety (Leipold 28).
Critics of pretrial release decisions claim that gender and race play a large role in not only the judge's decision, but in the personal lives of those standing accused. Those against pretrial detention also claim incarceration is linked to financial loss, unfair punishment and injustice for lower socioeconomic offenders. Claims of lost family connections, employment is an undue interruption of important social connections created an undue hardship of those awaiting adjudication behind bars. Those who cannot afford bonds sit in jail for weeks waiting for the district attorney to accept or drop their charges. In the interim, they run the risk of losing their jobs and homes (Webster 2).
Studies also suggest that there is a link between not receiving pretrial release and a higher rate of conviction and longer prison sentences. The Arnold Foundation research released findings in 2013 that showed defendants who were held in jail awaiting trial had a three or four times greater likelihood of ending up with a sentence to prison or jail that was two to three times longer than those who were granted pretrial release (Lyons 2). This foundations research also claims that those being held for low to moderate risk defendants who were forced to spend their time in jail prior to the outcomes of their cases were more likely to commit new crimes within two years of their case outcome (Lyons 2).
Critics claim pretrial detention hampers the defense by making it difficult of the defendant to access legal help, find witnesses and gather and review the evidence against them. There is no direct evidence that a suspects case is harmed by pretrial detention, however there is some data that suggest that it may be. "It is impossible to tell how often the suspect's case is materially harmed by pretrial detention, but there are some worrisome data" (Leipold, 2005 pg. 28). The percentage of federal defendants were released prior to their trail has dropped at a substantial rate in recent years. For example, in 1990, 62% of defendants who were charged federally were released prior to their trial date; in 2002 it dropped to 45% (Leipold 28). "On the surface, the goals of the bail decision have little to do with the accuracy of the eventual trails, and everything to do with preventing the defendant's flight and protecting the community from dangerous subjects (Leipold 28). Therefore it appears that the decision to grant pretrial release or a short stay in jail has little to do with the actual outcome of the defendant's case and should not be considered a factor.
The impact of race on pretrial decisions has long been documented suggesting that black defendants are less likely to be recipients of pretrial release. Critics claim that pretrial release is being used in a bias manner and minorities are being denied release when their crimes and backgrounds are similar to their white counterparts (Demuth and Steffensmeier 1). This is thought to be true due to black defendants being viewed by the courts as more dangerous and blameworthy which decrease their chances to be released on their own recognizance (Freiburger et al., 2010, pg. 84). Richard Webster wrote an article titled Bail System Puts Court Costs in New Orleans on Backs of the Poor, where he claims the bail system discriminates against people who do not have money and therefore fills up the jails with the disenfranchised, people of color (Webster 2).
Prior research from Demuth and Steffensmeir however used data to examine race-ethnicity effects on the pretrial release decisions and the outcomes. They did this in hopes to understand if race or ethnicity was the overwhelming factor in if a defendant received pretrial release or was held in jail until the outcomes of their cases were decided. What they found was that black defendants had an increased likelihood of detention based solely on the inability to pay bail (Freiburger et al. 76). Other research in 1898 also found that race did not have a significant effect on pretrial release outcomes, however the white defendants did appear to receive greater leniency for education and income. ".....while it appears race had a significant effect on various components of the process, it was not shown to affect all aspects of pretrial release decision" (Frieburger et al 79). However, when it came to cases involving drugs a strong racial impact was found among this sample was consistent. "....as black drug offenders are believed to initiate especially strong stereotypical images among judges" (Frieburger et al. 84). This study also concluded that women were not significantly more likely to be given a release on their own recognizance but they did receive a significantly lower bail amount than their male counterparts (Frieburger et al. 84).
There effect gender plays on pre-trail release decisions is difficult to determine. There are few studies that examine the impact gender has because there are such a smaller number of women in the judicial system than men and the most recent data dates back to the 1980's (Demuth and Steffensmeier 3). "There often are an insufficient number of female cases to perform a robust statistical analysis of gender differences (Demuth and Steffensmeier 3). However some studies find that women defendants receive more lenient sentences and are less likely to be detained prior to trial and are granted released through nonfinancial means or lower bail amounts than their male counterparts (Demuth and Steffensmeier 3).
According to Wilbur Bock and Charles Frazier from the Department of Sociology, University of Florida there is more that comes into play than race, gender or seriousness of crime when a judge is making his decision to grant pretrial release. They claim that judges grant releases own recognizance based on the consideration of offense and the demeanor of the defendant. "When deciding on recognizance, judges apparently formed typifications of misdemeanants who are respectful" (Bock and Frazier 241). They offer this explanation; those who had committed a misdemeanor and those who were disrespectful were less likely to be released on their own recognizance. Those who committed a lesser crime and who were respectful to the court were thought to be less of a threat to society and therefore less deserving of detention as punishment (Bock and Frazier 241).
Many factors play into the judge's decision to grant pretrial release, such as education, family and community ties, education, finances and even the demeanor of the defendant in court. For example, being employed fulltime is an important indication of the defendants' ties to the community and their overall stability. Therefore it is reasonable for a judge to use this to measure the defendants' flight risk (Frieburger et al. 84). It is also reasonable for a judge to consider females less dangerous and less of a flight risk opposed to males (Frieburger et al. 84). Judges have to make decisions based on the overall circumstances of the crime, case, lifestyle, resources, employment, previous criminal record and education to determine flight risk and dangers to the community in order to grant or deny pretrial release. I feel it is unreasonable to expect every outcome to be the same because no two people's cases, backgrounds and home life are the same. There may be some disadvantages to people of color due to societal reasons that may need to be addressed, but I do not feel that bail decisions are based solely on race or gender.
