Efficiency and cost: the impact of videoconferenced hearings on bail decisions.

• Author: Diamond, Shari Seidman
• Position: Centennial Symposium: A Century of Criminal Justice

1. INTRODUCTION

   Over the course of the past century, bail decisions have been affected by two important developments that threaten the due process rights of defendants. First, the American criminal justice system expanded the reasons used to deny bail or to set high bond amounts. Second, and perhaps not surprisingly in view of the increasing pressure placed on courts by a growing docket of cases, American courts began to experiment with technology as a way to reduce costs, including those created by the growing volume of cases. The convergence of these two trends culminated in a perfect storm in 1999 when Cook County, Illinois instituted the practice of holding bail hearings for most felony cases using a closed circuit television procedure (CCTP) that allowed the defendant to remain at a remote location during the bail hearing.

   The assumption that justified the implementation of the video system, as with many criminal justice system reforms, was that it would reduce costs without disadvantaging defendants. We examine here the history that led Cook County to conduct bail hearings using the CCTP and the actual impact that the change from live hearings to the CCTP produced for bail outcomes. We begin in Part II by tracing the expansion of bail from a mechanism designed to ensure that the defendant would appear for his trial to one that reduced the likelihood that the defendant would engage in criminal behavior before being tried, that is, to achieve preventive detention. Next, in Part III, we consider the growth of technology that made it possible to hold remote bail hearings using the CCTP and how courts have generally responded to legal challenges to the growing use of technology in the justice system. Part IV outlines Cook County's change in policy in 1999 that brought the CCTP for bail hearings as well as the federal lawsuit initiated in 2006 that challenged the use of the CCTP for bail hearings, and our analysis of the impact of the change. Specifically, using a time-series analysis, we examine the pattern of bail decisions in Cook County for the eight years prior to and eight years following the implementation of the CCTP. The results are dramatic. We find a sharp increase in the average amount of bail set in cases subject to the CCTP, but no change in cases that continued to have live hearings. The preliminary results from this analysis were disclosed to all counsel in the litigation on December 11, 2008 and were reported in the Chicago Tribune the next day. (1) The lawsuit that initially stimulated this analysis was dismissed as moot on December 15, 2008 when Cook County voluntarily returned to live bail hearings for all felony cases and implemented other changes in the bail hearing process. But questions remain about the potential uses of video technology by criminal courts in bail hearings and other proceedings. In Part V of this article, we discuss the future: the prospects and questions that should be addressed as the criminal courts deal with the twenty-first century and beyond.

2. THE HISTORICAL EVOLUTION OF BAIL

   The institution of bail is deeply entrenched in our jurisprudence. It traditionally reflected the criminal justice system's purported desire to balance the unfairness of confining, and thereby punishing, a person who has not been convicted of any offense, and is presumed to be innocent, with the need to ensure that the defendant will show up for his trial.

   The origin of the bail procedure--and the fairness principle it seeks to safeguard--dates at least to thirteenth century English law. The Statute of Westminster the First of 1275 included an enumeration of non-capital offenses for which pretrial release on bail was available, thereby codifying a right (for those with financial means) not to be jailed and held prior to conviction. (2) The statutory right of bail in enumerated cases laid out in the thorough treatment of the history of bail that the authors have found is Professor Caleb Foote's pointed account, given to support his (now outdated) argument that the Eighth Amendment's Excessive Bail Clause incorporates a constitutional right to bail. See Caleb Statute of Westminster and in successor statutes had limits in practice, which burst into the foreground in the seventeenth century. In 1627, in Darnel's Case, a group of knights who had been peremptorily jailed "by the special command" of the king sought release on bail. (3) The judges refused. That arbitrary ruling, and other similar abuses by a judiciary beholden to the monarch, prompted the House of Commons in Parliament to adopt the Petition of Right of 1628, which Charles I accepted. The Petition of Right "brought the force of Magna Carta to bear upon pretrial imprisonment," affirming that there was a right not to be imprisoned or detained in noncapital cases without the ability to apply for bail. (4)

   This ongoing "bail controversy," which first produced the recognition of the underlying right to bail via the Petition of Right, shifted half a century later to questions regarding the procedure necessary to effectuate that right. (5) The Habeas Corpus Act of 1679 included a recital regarding judicial reluctance to consider bail even in cases in which bail was appropriate: "many of the King's subjects have beene ... long detained in Prison, in such cases where by law they are bailable." (6) Among the items included in the Habeas Corpus Act, therefore, were detailed provisions designed to ensure that procedural technicalities did not prevent judges from considering the defendant's right to pretrial release.

   Finally, the English Bill of Rights of 1689 included a provision, similar to the Eighth Amendment, forbidding "excessive bail." (7) That provision was added to remedy Parliament's finding that the right of bail was being "subverted" by judges who were setting bail in amounts that could not be met. (8) These seventeenth century legislative efforts to solidify and protect the institution of bail--the Petition of Right, the Habeas Corpus Act, and the English Bill of Rights--all demonstrate, in Professor Foote's view, that "relief against abusive pretrial imprisonment was one of those fundamental aspects of liberty which was of most concern during the formative era of English law." (9)

   The notion that a person should not be unnecessarily detained before trial is an accepted axiom of American law as well. Yet the Eighth Amendment of the United States Constitution includes only a spare, ambiguous reference to the institution of bail: "Excessive bail shall not be required." (10) The Constitution also prohibits Congress from suspending the "privilege of the writ of habeas corpus." (11) But the Constitution is silent on whether there is an underlying constitutional right to bail.

   Unquestionably, though, a long-standing American tradition allows persons with financial means accused of non-capital crimes to post security for their appearance at trial and obtain their release until that time. In America, this tradition can be traced to the seventeenth century prerevolutionary era, roughly contemporaneous with the English bail controversy. The right to bail in non-capital cases was included in the Massachusetts Body of Liberties of 1641, (12) in the New York Charter of Liberties and Privileges of 1683, (13) and in the fundamental law of Pennsylvania in 1682. (14) The right to bail was recognized and codified in constitutions and statutes enacted just before the federal Constitution, including the constitution of North Carolina in 1776 (15) and the Northwest Ordinance of 1787. (16) A federal right to bail was codified in the Judiciary Act of 1789, which Congress enacted contemporaneously with its approval of the Bill of Rights. (17) Then, over the span of many years following the enactment of the Bill of Rights, a large majority of the states adopted state constitutional provisions guaranteeing the fight to bail in non-capital cases, (18) leading one commentator to conclude that "[a] pervasive fight to bail developed in America in the years after 1789." (19)

   Though the formal recitation of a right to bail in state and federal statutes and in state constitutions may have been commonplace, over the course of American history, pretrial release on bail has not been pervasive or anything like a universal fight in practice. First, since the seventeenth century, formal recognition of the fight to bail has been limited to noncapital cases. (20) Throughout much of our history, capital punishment was available for many crimes other than the aggravated murder cases to which that punishment is now almost exclusively confined. (21) In any such capital case, American law has always recognized that bail may be denied altogether.

   Second, even in the absence of systematic data regarding the availability in practice of pretrial release on bail, (22) it is safe to presume that, throughout this country's history, pretrial release--even in non-capital cases--was far from automatic. For accused persons whose poverty precluded the posting of bail in any amount (the great majority of criminal defendants), the ability to gain release prior to trial has always turned on the magistrate's willingness to grant non-financial release. Where the charged offense was a non-trivial one, there is no evidence that such judicial largesse was common. As Professor Foote points out, civil imprisonment for debt was commonplace in the United States throughout the nineteenth and even into the twentieth century. (23) In that context, the routine pretrial incarceration of poor persons accused of a crime of violence or a serious property crime is unlikely to have provoked public ire, or even notice.

   A couple of noteworthy nineteenth century judicial opinions pay lip service to the notion that a person not yet proven guilty should not be incarcerated unless doing so is necessary to secure his presence at trial. United States v. Lawrence involved the setting of bail for the...