American Bar Association Release Standards: Who Does Them Best?

In a recent article I recommended a public sector (Pretrial Release Agencies) and private sector (commercial bail) collaboration. I suggested that there be an exploration of benefits that might flow from such an experiment. In support of that proposal it seemed to me that first we would need to have some solid "common ground", some principle, or set of principles, upon which both sides might agree as a launching pad for that exercise.

I could conceive of none better than the very heart of the American Bar Association Pretrial Release Standards For Criminal Justice as found in the beginning recommendation of that impressive work. Standard 10-1.1 sets the stage for all that follows. It states: "The purposes of the pretrial release decision include providing due process to those accused of crime, maintaining the integrity of the judicial process by securing defendants for trial, and protecting victims, witnesses and the community from threat, danger or interference."

In other words, there are certain very real and extremely important conditions that must be attached to every release pending trial, and if these conditions are not present in each case then the system, as far as that particular case is concerned, is at substantial risk of failure.

So, it almost goes without saying that the very best method of release in any individual case would be that method which best meets each of these critical conditions.

The conditions are so vital that they bear repeating, and they are: (1) making sure that the rights of the accused are not violated, (2) making sure that the accused returns to court and (3) making sure that the victims as well as the rest of the community are protected.

Now, those advocating for the pretrial service agencies (primarily the Pretrial Justice Institute), insist that only the public sector be allowed to implement these conditions once the releasing authority sets them. The private sector (the commercial bail industry) insists that it is in the best position to implement at least some of these conditions. This difference of opinion is what creates the need to investigate whether particular conditions might be put in place best by assigning their implementation to whichever one of these institutions is best suited to assure the meeting of such condition(s). So just for purposes of this exploration, let's put aside any insistence upon "being right" and look at the question of which side is best suited for implementation of each condition.

The first ABA release condition, then, is: "PROVIDING DUE PROCESS TO THOSE ACCUSED OF CRIME." Whether either side wants to admit it or not, neither one of them, pretrial services or commercial bail, has the power to implement this condition. It is exclusively within the purview of the court setting release conditions. That is, whether due process rights are violated depends upon whether or not the judicial authority setting release conditions sets them appropriately. If the conditions are inordinately harsh, then as a matter of pure practicality the due process rights of the accused are being violated.

How can we know this? What authority establishes this principle? It is none other than the Constitution of the United States whose Eighth Amendment says: "There shall be no excessive bail." It necessarily follows, then, that if the release conditions are fairly established there can be no due process rights violations as far as release from pretrial custody is concerned. Conditions too harsh would be, by definition, "excessive" and therefore not allowable.

So as it turns out, neither side can say that in the release process it does a better job of protecting the due process rights of the accused than does the other side. And this is true simply because neither side's implementation ability determines whether the release conditions are proper. If there is a complaint about the fairness of the release conditions, as imposed, that complaint must be lodged against the court setting those conditions, and is the proper role of defense counsel as she or he brings a motion to reduce bail conditions. That's it. This operates as the proper remedy in such situations.

So neither the pretrial services side nor the commercial bail side has standing to complain about the other as far as this first ABA requirement (protecting the due process rights of the accused) is concerned.  This first ABA condition belongs exclusively to the court, not to implementers of conditions.

There is room however, for each side to claim superiority of performance in relation to each of the other ABA Standards suggested conditions, and those need to be addressed one by one. That will be the subject of articles to immediately follow. Stay tuned.