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What You Should Know About Pretrial Release Programs

  • December 01, 2008
  • by Collateral Staff

According to The New York Times, the United States and the Philippines are the only two countries in the world with a dominant commercial bail system. In the past 40 years, the commercial bail system has come under intense scrutiny, as critics claim pretrial release should not be based on a defendant's ability to pay a bail agent. The rise in anti-commercial bail sentiment has been accompanied by a wave of bail reform law, most commonly in the form of pretrial release programs run by the courts. Pretrial release programs have also been seen as a solution to overcrowded jails, a result of mandatory sentencing guidelines and three strike laws.

History of Pretrial
Pretrial release programs began in 1961 with the Vera Institute's Manhattan Bail Project. Candidates to be released before their trial sans bail were carefully vetted to ensure their stability and ties to the community. Due in large part to the success of the Manhattan Bail Project (the failure to appear rate of defendants released on their own recognizance [ROR] was comparable to the failure to appear rate of defendants released on money bail), President Lyndon Johnson signed into law the Federal Bail Reform Act of 1966, which set ROR as the de facto form of pretrial release as long as a person was not found to be a flight risk. While this only applied to federal cases, many states created similar bail reform laws. With these laws, pretrial release was born.

While the Manhattan Bail Project was a resounding success, that success has not been replicated on a larger scale. Participants in the Manhattan Bail Project had been carefully selected using a point system that took in all factors that affect flight risk, including community involvement, family ties and length of employment. As jails fell victim to overcrowding, pretrial release programs spread to lessen the strain on the prison system. More defendants were being released through pretrial release programs, and the quality of the monitoring and selection process for those released without bail decreased. Essentially, people who would not have been approved for ROR under the Manhattan Bail Project were being approved for release in other places, negating the effectiveness that the Manhattan Bail Project was able to create. This trend continues in many areas' pretrial release programs today.

Effectiveness of Surety v. Non Surety Release
As discussed in the first part of this series, the selection process for pretrial release programs has become less arduous. As more people are declared eligible for pretrial release programs, the failure to appear rate for these programs has soared above that of people released on surety bail. In November 2007, the US Department of Justice released a special report from the Bureau of Justice Statistics entitled, "Pretrial Release of Felony Defendants in State Courts". As an unbiased third party, the Department of Justice determined that of all defendants released through some type of pretrial program, 28 percent failed to appear in court. 19 percent of defendants released on surety bond failed to appear, compared to 30 percent released on an unsecured bond. After a year, only three percent of defendants released on surety bond were fugitives, compared to ten percent of those released on unsecured bond. The Pretrial Justice Institute refutes that this study promotes surety bail as the best method of pretrial release. In their Fact Sheet "Understanding the Findings from the Bureau of Justice Statistics Report: Pretrial Release of Felony Defendants in State Courts", the PJI asserts that the study done by the Department of Justice was "not designed to answer the question of effectiveness. To evaluate the effectiveness of one release type over the another requires controlling for all the factors that might influence how release decisions are made and how defendants perform while on release." However, it can be argued that comparing statistical data regarding failure to appear and fugitive rates for those released through various pretrial methods does answer the question of effectiveness, even if not designed to do so. Further, in a private study that was designed to answer the question of effectiveness of pretrial release methods, the same conclusions were reached.

This study, entitled "Public versus Private Law Enforcement: Evidence from Bail Jumping," two economists, Dr. Eric Helland and Dr. Alexander Tabarrok, compared the failure to appear and fugitive rates of felony defendants released from jail under own recognizance, deposit bond, cash bond, surety bond and emergency release using data sets compiled by the U.S. Department of Justice's Bureau of Justice Statistics spanning an eight year period. The results of this study undoubtedly show that defendants released on surety bond are more likely to appear in court and are less likely to become fugitives than defendants released on their own recognizance, deposit band, cash bond, or emergency release. According to Helland and Tabarrok, "[d]efendants released on surety bond are 28 percent less likely to fail to appear than similar defendants released on their own recognizance and if they do fail to appear they are 53 percent less likely to remain at large for extended period of time." While many may argue that comparing ROR to surety bond is not an equitable argument, Helland and Tabarrok also compare surety bond releases to cash bond releases, nothing that "[r]equiring defendants to pay their bonds in cash can reduce the FTA rate to a similar rate than that for those released on surety bond. Given that a defendant skips town, however, the probability of recapture is much higher for those defendants on surety bond. As a result, the probability of being a fugitive is 64 percent lower for those released on surety bond compared to those released on cash bond (emphasis added)." As Helland, Tabarrok, and readers of the study can conclude, surety bail is the most effective way of ensuring defendants appear in court to face the justice system. Unfortunately, this data is not enough to discourage ineffective pretrial release programs.

Other arguments for and against
As the PJI mentions, "the value of these release types can be judged by other factor: do we want to continue to allow potentially dangerous defendants to buy their way out of jail? Do we want to low risk indigent defendants to take up expensive jail space because they cannot afford the services of bail bondsmen?" While these focus on the monetary argument against surety bail, these questions do not focus on another issue with pretrial release programs - some assume you are guilty before being proven so. Ironically, this is one of the issues pretrial release programs were supposed to mitigate. Candace McCoy emphasizes this in her review of Caleb Foote's ideas of criminal justice, focusing on the pretrial program in Philadelphia that included "Treatment Courts." In these Treatment Courts, judges would release defendants without bail who agreed to weekly monitoring and drug testing. McCoy expresses the double standard in this practice, saying, "In the name of humane reform of bail practices and therapeutic help for druggies, the Philadelphia courts have designed a system in which an entire class of offenders are subjected to intrusive state control while on release and while they have not been convicted of anything (emphasis author's own)." Even advocates of pretrial release cannot help but admit the flaws inherent in the system.

Despite these flaws, pretrial release programs are still spreading around the country (Apparently the programs are not spreading as fast as they used to - the Department of Justice has stated that in 1998 surety bond surpassed ROR as the most popular type of pretrial release). While the public should not support pretrial release programs that are not effective and essentially incriminate suspects before trial, bail agents have even more incentive to band together to fight the spread of pretrial release programs. Not only do pretrial release programs affect the safety of the community, but they also affect the livelihood of the estimated 14,000 bail agents nationwide. In general, bail agents need at least 95% of their clients to appear in court to break even. Perhaps this is why defendants released on surety bonds have a lower failure to appear rate and a higher recovery rate; whereas police officers do not have a lot of incentive to recover fugitives, bail agents' livelihoods depend on it.

"Sometimes you just can't hold back the river." - Tilly and the Wall
As a bail agent, what can you do to fight pretrial release programs? The truth of the matter is that pretrial release programs are here to stay. As previously noted, it is almost impossible to reconcile the philosophical arguments against commercial bail (it is unjust to indigent defendants who cannot afford a bondsman) and the practical (commercial bail is statistically more effective). However, there are ways that bail agents can work with and around pretrial release programs, in addition to fighting the addition of pretrial release programs in their area. First of all, the old adage about strength in numbers is true - you cannot have a strong political voice unless a lot of voices are speaking in unison. If you are not a member of your local or state bail association, now is the time to join. Reach out to more than just bail agents as well. Befriend local judges and see what needs to be done to encourage surety bail. Another way of dealing with pretrial release programs is by working with them. Dr. Salvador Rivas and Dr. Diana Wilson recently wrote an article for the Florida Surety Agents Association outlining how pretrial programs and surety agents could work together to create an effective form of pretrial release that benefited both surety agents and defendants. In their plan, bail agents would continue to write bail as always, giving defendants the opportunity to choose who supervises their release and increasing the likelihood a defendant will appear in court. Pretrial agents can supplement surety bail by providing counseling for at-risk defendants with multiple arrests, defendants with substance abuse problems, and families of defendants. In addition, pretrial agents can oversee pretrial release of indigent defendants who cannot afford even low bail. By allowing surety agents to lighten the work load of pretrial agents that tend to be spread to thin, pretrial release programs can increase their effectiveness while providing counseling services to defendants who may need it. This symbiotic relationship works "to the benefit of the defendant [and] to insure that justice and community safety are at the forefront." While the American Bar Association is staunchly opposed to commercial bail, allowing a combination of surety bail for those who can afford it and pretrial release programs for those who cannot would mimic the current system for procuring legal representation - defendants who can afford private representation can hire a lawyer, while those who cannot can be assigned a public defender to serve as their counsel.

With 1 in 100 American adults incarcerated and 2 in 100 American adults on parole or probation, 3% of the American population is currently serving a sentence for some crime, according to the PEW Research Center. While overcrowded jails is one of the most popular justifications given as to why pretrial release programs are necessary, there does not seem to be a lot of action in decreasing the country's incarceration rate. In fact, the inverse is true, with three-strike programs and lengthy mandatory sentencing requirements for drug offenders only serving to increase the jail population. While incarceration rates could theoretically decrease with stricter qualifications for three-strike programs and rehabilitation instead of incarceration for drug offenders, there is still the philosophical question that will continue the pretrial release debate, as phrased by Helland and Tabarrok: "How should the probability of failing to appear and all the cost this implies, including higher crime rates, be traded-off against the injustice of imprisoning the innocent or even the injustice of imprisoning the not yet proven guilty?" As this question can never be answered, this debate will seemingly never end. It is essential that bail agents stay educated on this issue and work together to continue to fight the prevalence of ineffective pretrial release programs.

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