Wednesday, January 22, 2014

Aristotle and Pretrial Release

In the first installment of The Bail Papers, I suggested that, regarding the process of release pending trial, the most important thing that could come out of 2014 would be the initiation of dialogue between the public sector (government sponsored pretrial release programs) and the private sector (commercial bail bond industry) for the purpose of exploring whether the best that each has to offer might be brought together for the optimum benefit of all stakeholders in that process. Further, I said that following that segment I would offer what I would hope would be compelling reasons to pursue this ambitious exploration project. This article is intended to serve that follow-up purpose.

I believe that the best evidence of the need for the public sector and the private sector to engage in such a discussion one need look no further than the American Bar Association's (ABA) Standards for Pretrial Release. Just the briefest of reviews of those standards will reveal that the ABA breaks the pretrial release process down into four critical elements, each of which must be fully protected in any consideration of release pending trial.

Those four elements, whose integrity must be preserved, are:

  1. The due process rights of the accused,
  2. The assurance of the appearance of the accused as directed, 
  3. The safety of the community and
  4. The rights of crime victims to have the wrongs against them redressed.

It could therefore be very legitimately recommended that the proposed joint exploration of the public and private sectors focus on these four important points, again, as set out by the ABA. Certainly, no one on either side would argue with the proposition that each of the four elements deserve the fullest possible protection.

I believe that this is so important that I will be devoting several future "Bail Papers" pieces on precisely those features.

But the title of this article mentions the Ancient Greek philosopher Aristotle. What could that age old sage possibly have to do with pretrial release? Well, directly, probably nothing, but one of his teachings could have a very great deal to do with how both sides of the proposed discussions should approach their respective roles, should they in fact agree to the joint exploration.

That teaching of Aristotle has come to be known as "The Principle of the Golden Mean". The teaching is all about achieving a desirable balance between extremes. "Nothing overmuch" is another way of stating the principle. From it evolved the notion that all things should be done in moderation.

How can the idea of arriving at a point of balance between extremes serve the suggested dialogue, should it in fact become reality? I think we can use the required four ABA pretrial release elements as an example of how to employ Aristotle's approach. Let's say, for example, that we fully embrace one of those elements, like making certain that we insure the accused's appearance but that we do it in such a way as to fully deprive him of his due process rights. In other words, we throw the ABA element number (1) completely overboard in favor of setting up conditions in full accord with element number (2). Clearly, that would produce a grossly defective product. It becomes clear, therefore, that there must be a "balancing" of protecting due process rights with the integrity of the court. That is: ensure appearance, but not at the expense of the accused's rights of due process.

Any meaningful exploration toward collaboration between the public and private sectors must embody a "coming together" to protect all four of the ABA elements. That would require a movement toward the middle in some cases, a "balancing" of the virtues contained in each of the four elements. In other words, an application of The Golden Mean. Let's hope that each side would exhibit a willingness to do just that. Make sense?

I am told that persons in the public sector camp are reading these Bail Paper pieces. I hope so, and should that be the case I would be pleased to hear any comments.

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