CHAPTER 5 PRETRIAL RELEASE AND PRETRIAL DETENTION

• Jurisdiction: United States

Chapter 5 PRETRIAL RELEASE AND PRETRIAL DETENTION

§ 5.01 PRETRIAL RELEASE: PROCEDURAL CONTEXT AND OVERVIEW

After a suspect is arrested and booked at the police station, she is ordinarily taken to jail. Most often, her first opportunity to be released arises at a hearing before a judge or magistrate that is often called the "first appearance," though it goes by many names, including "initial appearance" and "arraignment."¹ The first appearance should occur "without unnecessary delay,"² usually within twenty-four hours after arrest, except on weekends.

At the hearing, the judicial officer determines whether to authorize release of the arrestee. The release may be "ROR" — which means "released on recognizance," the promise that the defendant will appear as required at future proceedings — or it may be with conditions. A very common condition is that the accused deposit cash or property with the court, or post a bond provided by a commercial surety (a "bail bondsman") in an amount determined by the judicial officer. The money deposited or the bond posted is called "bail," and if the defendant fails to appear after posting it, the bail is subject to forfeiture.

In traditional bail proceedings, the judicial officer will attempt to determine what conditions, if any, are both necessary and sufficient to reasonably ensure the defendant's future appearance. The only legal justification for not simply releasing the defendant is that bail or other restrictions are necessary to assure the integrity of future proceedings in the case.

More recently, federal law and the law in about half the states have also authorized the judicial officer to deny bail and order continued confinement on the ground that it is necessary to assure the safety of the community.³ This approach, called "preventive detention," is discussed in § 5.05 below.

Although the Supreme Court has indicated that the Constitution does not require it,⁴ indigent defendants are entitled in the Federal courts to appointed counsel at the first appearance, at which bail is usually determined.⁵ Among the states, however, indigents usually are not provided with counsel at their first appearance, and thus have their initial bail established without representation.⁶ Of course, when counsel is eventually appointed, she may make a motion to change the defendant's bail conditions.

In making the bail determination, the judicial officer is typically guided by a list of factors established by statute or rule. These factors fall into two categories: those relating to the potential punishment for the charged offense and those otherwise related to the arrestee's likelihood of appearing in the future. The former category includes the nature and circumstances of the charged offense, the strength of the evidence, and the arrestee's record of prior convictions. Factors in the latter category include the arrestee's employment and financial status, family ties, length of residence in the community, and, importantly, previous record, if any, with regard to required court appearances.⁷

The success of these judicial efforts is in the eye of the beholder. In a Justice Department study of felony defendants in the seventy-five largest urban counties in the United States in 2000, 78% of those granted release showed up for court when they were supposed to, and of the remainder approximately three-quarters returned to court, voluntarily or otherwise, within one year, so that about 6% of released defendants ended up as fugitives a year after their release.⁸

§ 5.02 PRETRIAL RELEASE: INTERESTS AT STAKE

[A] The Community's Interest

Although an accused person has a "traditional right to freedom before conviction,"⁹ that right has never been absolute. Most importantly, society has a long recognized interest in protecting the integrity of the judicial process. Protecting that integrity requires adequate assurance that if the defendant is released she will attend trial and sentencing if convicted,¹⁰ and that she will not intimidate witnesses and others involved in her prosecution.¹¹

The community also has an interest in making sure that persons charged with crimes who are released pending trial do not commit other offenses while they are free.¹² Although until recently that interest, like the financial issue, was not formally a factor the judicial officer was supposed to consider in the bail process,¹³ few doubt that this interest nonetheless played a significant role in bail decisions. In any event, the Court has now held that the interest in crime prevention may constitutionally be considered in the bail determination process.¹⁴

On the other hand, in many situations, the community also has an interest in an arrestee's pretrial release, because housing defendants pending trial, even in jail, is not cheap.¹⁵ Releasing defendants pending disposition is less expensive. This point may have special weight in jurisdictions where pretrial detention is handled at the local level (county jail), while post-trial punishment is handled at the state level (state prison).

[B] The Arrestee's Interest

An arrestee's interest in pretrial release is linked to the presumption of innocence implied by the Constitution's Due Process Clause.¹⁶ Although the presumption does not formally come into play until trial, the Supreme Court has observed that "[u]nless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning."¹⁷

An arrestee's interest in liberty — and, therefore, in release pending trial — is a weighty one, no less so for being obvious. The Supreme Court has characterized the interest as strong and fundamental.¹⁸ One court has suggested that a detainee's fundamental interest in liberty is "second only to life itself in terms of constitutional importance."¹⁹ Not only does pretrial detention entail a complete loss of liberty for some who may not, after all, be guilty of any crime, but, given the often poor conditions of the jails in which detainees are held,²⁰ the accused's interest in her freedom is particularly acute.

Moreover, confinement can hamper the defendant's or her counsel's preparation of the trial defense.²¹ For example, it may be necessary for a defendant to assist her lawyer to identify and convince alibi witnesses to testify, or to search the accused's home for relevant evidence. Somewhat dated studies suggest that "some defendants unable to make bail are, for that reason alone, more likely to be convicted and, if convicted, more likely to be sentenced to jail."²² Furthermore, confinement can be emotionally and financially disruptive to the accused and her family. A defendant may lose her job if she is incarcerated pending trial; in turn, she may be unable to support her family or earn the money necessary to pay for the attorney she wishes to retain. Pretrial confinement may also deny the defendant an important opportunity to demonstrate that she has "reformed" (for example, by continued employment, avoidance of rearrest or even performance of good works) — a determination that could be helpful to her in plea bargaining or sentencing.

Finally, the combination of the lengthy time-period between arrest and trial, often more than a year in felony cases,²³ and the prevalence of plea bargaining, gives a significant added importance to the pretrial release decision. A defendant's "best case scenario" — an acquittal after trial — is much less attractive if she is unable to obtain pretrial release: The best case becomes a year in jail. In deciding whether to accept a plea offer that will entail three years' imprisonment (when conviction after trial might result in, say, five years' imprisonment), a defendant assessing her options will certainly consider the fact that she will spend one year in jail in any event. For this reason alone, one would expect defendants unable to obtain pretrial release to end up with higher average sentences through the plea bargaining process than those who are at liberty pending disposition of their cases.²⁴

§ 5.03 PRETRIAL RELEASE: EIGHTH AMENDMENT²⁵

Traditionally, persons charged with non-capital offenses have had an absolute statutory or state constitutional right to be admitted to bail.²⁶ As one commentator put it, "a person arrested for a [non-capital] criminal offense [has] the right to purchase his release pending trial."²⁷

How expensive can the key to the jail be? The Eighth Amendment to the United States Constitution provides in part that "[e]xcessive bail shall not be required." The Supreme Court has noted in dictum that this provision "has been assumed to have application to the States through the Fourteenth Amendment."²⁸ The matter may be moot, however, because all states, by constitution or statute, prohibit excessive bail.

In Stack v. Boyle,²⁹ the Supreme Court stated that although pretrial release is a traditional right, it is permissible for a judge to condition freedom on "adequate assurance that [the accused] will stand trial and submit to sentence if found guilty." In that context, it held that "[b]ail set at a figure higher than an amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth Amendment."

The fixing of bail must be based upon standards relevant to the purpose of assuring the presence of the defendant. In Stack, the justices listed the "traditional standards" as: the nature and circumstances of the offense charged; the weight of the evidence against the accused; the accused's character; and the financial ability of the defendant to meet the bail requirements. Even during the Supreme Court's most constitutionally expansive period, however, it never ruled that the Constitution entitles an arrestee to have bail set at a level she can afford.

§ 5.04 PRETRIAL RELEASE: STATUTORY LAW

[A] Pre-Reform³⁰

Until statutory reform occurred in the 1960s, magistrates typically conditioned pretrial release of defendants on the deposit of cash with the court. A...