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.

The Bail Papers: Volume One

Some have recently requested that in this new year I put forward a set of bail related articles; a periodical of sorts. One such person suggested that it could be called "The Bail Papers".  I decided to go with that, and hence the title of this piece.

I suppose the reason for the requests was that those making the suggestion all knew that this marks the beginning of my forty sixth year as an attorney whose role included that of being an advocate for commercial bail.  Perhaps they are simply curious about my impressions of the state of the industry considering all that has impacted it, both good and bad, during this time, and especially over the last several years.

Thinking of that, I found myself moving forward from there just a little to ask myself the question:  Do I see anything extremely positive that one could hope for in this year of 2014? And then I considered that the question, if one's heart is really in the right place, should not be confined to just what might be best for the commercial bail industry, but what single development could best benefit the entire pretrial release arena? That seems to be the better enquiry, since how one is released pending trial is such a major component of our country's criminal justice system.

So I confined my pondering to that broader question: What single advance within the pretrial release world would best serve both the administration of justice and the public safety interests of communities nationwide?

The answer that shortly came to me might surprise some of the readers of this first issue of "The Bail Papers". I say this, because over the last twenty years or so much of my time has been spent trying to show that "we" (the private sector bonding industry) are better than "they" (taxpayer funded local pretreat release agencies).

And why, in light of this, would the answer to my question be surprising? Because I believe the best thing that could happen this year would be for these two forces to become the major participants in a new "public-private sector partnership" whereby each side would bring to the country those significant talents unique to each contributor. For, unquestionably, each side has something of extreme value to offer which potential is peculiar unto that side alone. That is: the private sector can bring benefits undeliverable by its counterpart and likewise for the public sector. Exactly what these benefits are will be the subject of another Bail Paper shortly to follow.

More compelling at this point, however, is another question: Could this "coming together" ever even happen, or is it too much to reasonably hope for? It is a very legitimate question indeed, for the depth of the controversy between the two sides has been so pronounced that it puts one in mind of certain biblical language: "Between us and you a great chasm has been set in place, so that those who want to go from here to you cannot, nor can anyone cross over from there to us." Luke 16:26.

No doubt the harsh rhetoric historically flowing from either side may have created a challenge, a "chasm" if you will, seemingly too great even if there were some willingness toward exploration of working together for the greater good. But maybe willingness alone, at the outset, could be enough to open some dialogue, and on the premise that communication is the best solvent a bridge toward a place of at least listening to each other could be built. And after that, who knows?

I can almost guarantee you that some among the leaders of the National Association Of Pretrial Service Agencies and The Pretrial Justice Institute will wonder, maybe even "wonder" to the point of being distrustful, at my suggestion. But even if, over the years I  have caused them to be suspicious of my motives, I could remind us all of something President Reagan once said about collaborating with the political opposition: "Sometimes, to get to the other side of the river, you have to ride in the boat with folks you wouldn't invite home to dinner."

Maybe, then, just placing the public good first and our own interests second a beginning could be had, a beginning on a path leading to a place where all of our energies and resources could be invested in the same overall objective. In the words of another wise man: "Let it be written. Let it be so."  I look forward to reading your comments.