The Pretrial Phase in the Criminal Justice System

The pretrial phase of the criminal justice system in America is fortunately very different from other parts of the world, where people are often arrested and improperly detained by law enforcement.  In America however, law enforcement must have probable cause to arrest and detain someone; a reasonable ground for a belief that the accused was guilty of the crime.  The probable cause standard is more important in criminal law because it is used as a basis for searching and arresting people.
 
When people are arrested, they have several options for release pending the outcome of their case based on state statues and laws and if a judge deems the circumstances warrant a release.   Release on a commercial bail bond is one option a defendant may be granted.  Other options include:

• Release on recognizance or a promise to appear for court; 
• Cash bail whereby the defendant puts up the full bond with the court; 
• Unsecured financial release whereby the defendant is released on a promise to appear for court and if they don’t, they must pay the full bond to the court; 
• Cash deposit bail whereby the defendant pays a small percentage of the total bond to the court, which is returned for appearance at all required court hearings; and
• Taxpayer-funded release whereby a defendant is released to be monitored by a pretrial supervision program using tax dollars

A bail bond is an appearance bond; a bail agent is financially responsible for making sure a defendant attends all required court hearings until disposition of their case.  If the defendant fails to appear, the bail agent must pay the court the full amount of the bond.  Such a release system instills personal accountability on the part of the defendant to appear and for others who have pledged collateral for their release.  Bail agents use no taxpayer funds for their services.
 
Those who promote the elimination of commercial bail continue to try and make the taxpayers believe that our pretrial justice system is broken because defendants must either pay bail or wait behind bars for their court date.  Proponents of taxpayer-funded programs claim they save the taxpayers millions of dollars by securing the release of defendants who otherwise would languish in jail without them.  Money is the sole reason that is causing the unnecessary incarceration of the defendant.  Money is stopping them from returning to their family and jobs.  Money is causing jail overcrowding across the country because defendants can’t afford their release. 
 
Defendants should just be given an objective and validated risk assessment so that a judge could release defendants on non-monetary release with conditions to prevent further incarceration.  Such assessment would prevent the unsafe, unfair and inefficient pretrial practices that rely on money bail and cause preventative detention.
 
For non-violent, first-time offenders, that would be a workable solution to keep jail populations in check and to assist defendants to return to their community and hopefully be more productive citizens.  The mantra of proponents of taxpayer-funded release programs is that they provide a vehicle to enforce conditions of release.
 
But what about the fundamental principle that is being ignored by forcing conditions: defendants, who are innocent until proven guilty, are being forced into programs in order to be released from jail.  It is understandable if GPS or electronic monitoring is ordered as such conditions have a direct effect on public safety if the defendant is monitored properly.  But as we have shown throughout our blog postings, it is not only the non-violent, low-risk offender that is being released and supervised on taxpayer funds. 

And is forcing people to take drug tests or enter substance abuse or mental health treatment while they are still considered innocent of the charge they were arrested on a violation of their constitutional rights?  Do you not think defendants feel pressure to accept these conditions if they want to be released from jail on non-monetary means?  Why are such conditions acceptable to force on people while the condition of financial release is seen as greedy?  Such programs charge for their services along with supervision fees that defendants must pay for.  Why is this financial charge acceptable when the charge for a bail bond is not?
 
If convicted of a crime, ordering defendants into substance abuse or mental health treatment, anger management, batterers’ intervention programs etc. is the right thing to do if any of the above lead to the crime the defendant was convicted of.  Treatment and intervention will hopefully help these defendants to be contributing members of their community once released from jail or prison.
 
But too often society has assumed a paternalistic role to force and compel people arrested for a crime into programs before they have reached a trial on their merits or disposition of the merits.  When proponents of taxpayer-funded release systems say that it doesn’t matter if someone is indigent or not or even particularly what crime they are accused of to be eligible for release on taxpayer funds, it begs to question whether society has lost its path of getting back to the fundamentals of what the pretrial stage of the criminal justice system is all about.
 
While defendants should not have unreasonable bond imposed, nor should they have unreasonable societal conditions imposed. 
 
Judges have the authority and discretion to release any defendant on their own recognizance; if financial release is a burden and the defendant committed a non-violent crime, release them that way.  Defendants who have the resources to pay for a bail bond will do so usually within 72 hours.  And the bail agent will financially guarantee that the defendant will appear at all required court appearances.  If not, they pay the full amount of the bond to the court.  The taxpayer is not on the financial hook for that defendant.  The fact is: most people who have been arrested and had their liberty taken away will find a way to post a bail bond. 
 
Taxpayer-funded programs claim that without their services, jails would be overflowing with defendants languishing in jail and taxpayers would pay millions of dollars more than they should to house those defendants.  There are many jails without such programs and they manage to control their jail population through posting of bail bonds and other release mechanisms.  

And then there is discussion about the true cost of housing a defendant.  

Anyone who ever took an economics class understands the difference between a fixed cost and a variable cost.  Fixed costs are those “hard” costs that remain despite the inmate population.  If someone is not in jail on a given day, the power bill still has to be paid.  Upkeep and maintenance still has to occur.  Salaries of employees still have to be paid.  The consumable costs of housing an inmate include such things as food, clothing and healthcare and are usually under $15 per day.  A stark difference from the dollar amount told to taxpayers of up to $150 a day to house a defendant.
 
Like so many government programs, taxpayer-funded release systems can proliferate if not kept in check.  Something that came into existence in the 1960s as a program with a finite purpose today wants to exponentially expand its original purpose.  Today such programs are directly competing with private industry to supervise career and dangerous defendants using taxpayer funds and disregarding many of the very defendants they were created to help – the indigent, poor, non-violent defendants. 
 
There is a need for both a taxpayer-funded release system and the commercial bail industry.  The question we should all ask ourselves is this: do we want a private system with centuries of experience, which is comprised of small business owners, which is financially responsible for ensuring the appearance of defendants at court, which uses no taxpayer funds, to continue to be a viable partner in the criminal justice system – or do we want to put that responsibility on government and the taxpayers?