Wanted: prosecutors to help advance pretrial justice.

• Author: Burdeen, Cherise Fanno

Prosecutors have a responsibility not only to convict law-breakers, but also to uphold the values, aims and effective operation of our justice systems.

This is an uncontroversial view held by major legal professional organizations. The American Bar Association (ABA) standards, for example, specify a duty to "seek justice, not merely to convict." (1) Similarly, standards from the National District Attorneys Association hold prosecutors responsible not only for ensuring that the guilty are held accountable, but also that "the innocent are protected from unwarranted harm, and that the rights of all participants, particularly victims of crime, are respected." (2)

Both organizations stress the importance of a prosecutor's duty to be guided by societal interests over those of groups or individuals and, importantly, to seek reform to "improve the administration of justice." The ABA makes it clear that, "[W]hen inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action." (3) In recent months, a dismaying and seemingly endless series of news accounts have underscored how frequently current pretrial practice in the United States falls short of these ideals and how pretrial practice is an area that clearly demands remedial action and reform. Currently, pretrial systems often hinder rather than facilitate the administration of justice and the effects and outcomes of such systems fail to meet our national justice values and aims.

In short, advancing pretrial justice is an area ripe for the leadership of prosecutors, for the benefit of victims, communities, the accused, and society as a whole.

What Is the Problem?

Our current bail system fails to provide justice to victims, society or alleged offenders and it fails to keep our communities safe.

At the heart of the problem is the nearly universal use of financial conditions for pretrial release--i.e., money bail. Placing a monetary value on release, mostly based on the charge, is a dangerous substitute for measuring an individual defendant's risks of flight or re-arrest. We have known this for a long time; even before 1964 when then-Attorney General Robert Kennedy said, "... usually only one factor determines whether a defendant stays out of jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money. How much money does the defendant have?" (4)

Yet, thousands of times every day prosecutors ask for financial release conditions, defenders argue for them to...