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.

The Bail Papers - Volume 3: Should Bail Be Less American?

I have recently been reminded again of how the government sponsored "free" bail champions argue that America should abolish financially secured release in favor of more "socially conscious" systems such as those prevalent in some other countries. They cite specifically England. Our Mother Country, they reason, does not utilize the practice of financially secured pretrial release, and therefore neither should we.

In other words, when it comes to release pending trial, America should "get with the program" and be like England. Why? Is it because local government subdivisions (cities and counties) can maintain the same ratio of enforcement personnel per pretrial defendant as does England? No, it isn't that. Is it because the demographics of our country are no different than those of England? No, not that either. Is it because America and England occupy the same basic land mass and therefore the opportunities of remaining an undetected absconder are about the same? Nope, not that. Well, is it because it is just as easy to flee England as it is to flee America? No. Well, is it because any legitimate comparison of the effectiveness of America's  pretrial release practices to England's has been done. No, that is not it either.

Why then, one if driven to ask, should America abolish it's current system in favor of that of some other country? Their answer would be rather obvious, and it would be simply this: America should change it's practice in favor of England's, because in England an accused does not have to secure his release pending trial in order to ensure his reappearance as directed by the court.

One might ask: It can't be that alone, can it? The clear answer is: For them, yes it can. It all, in their eyes, issues from the proposition that requiring financially secured release is so wrong that literally any alternative is preferable. An objective person might wonder: Why should not whichever approach best assures the appearance of the accused before the court so that the rights of all the people can best be served be the chosen approach? That's a pretty fair question, wouldn't you say? But it is apparent that for the "free bail" advocates that's not acceptable. Because for them, whether it works best or not, financially secured release is so patently unfair to the accused that the practice should be forbidden, and that's it. Period. End of discussion. Case closed.

And until one comes to understand their intractability on this one issue, one will never be able to comprehend their stance. You can argue all you like that all credible studies demonstrate that with financially secured release local justice systems will be administered more effectively, there will be less criminal misconduct among those released and thus fewer crime victims in the community. It will fall upon deaf ears unfortunately, because they appear to be so blinded in their mission of not holding the accused accountable to answer to the charges against him that they just cannot hear or see anything else.

This, in my opinion, is not because those enemies of financially secured release don't care or because they are bad people. Quite the contrary: the ones I know are fine people and they have big hearts. But they have, in my opinion, become too swept up in their belief that if we treated the accused more graciously all would work out well in the end. They argue that how one is released should not be a punishment, and they are right about that. Where they seem to go astray is by forgetting that neither is it to be a reward.

I suppose that the thing that is so strange in all this is how "overboard" the "anti-secured release" spokespersons seem to go. It appears that to them it has to be all one way: the defendant's way. But there is more at play than just being sure the system is not overly harsh with the accused. They are correct, certainly, when they say that we should not make it harder on the one being released than is absolutely necessary. But they are incorrect in holding that we should not apply sufficient conditions of release to accomplish the true ends of justice for all in the community.

It is true that you cannot cure bad behavior with mistreatment. But it is also true that justice means rewarding behavior according to its contribution to the order of society. And again I say: conditions of release should not be punitive, but neither should they be rewarding. Remember, the accused is only in custody because, based upon probable cause, he has committed a crime against the people. Asking him to reasonably guarantee that he will come back to court to answer those charges is not a punishment.

We don't need to go back to England. We already left there once.