Defense Bar Proposes Pretrial Release Reform
Release with Least-Restrictive Conditions Favored Over Financial Bail; Defendants Should Get Jail Credit for Court-Supervised Release
Washington, DC (July 30, 2012) – The Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) approved the first major bail reform policy proposal in over 25 years at its Annual Meeting in San Francisco July 28. The policy was proposed by the Association’s Task Force on Pretrial Justice after a year of study.
NACDL President Steven D. Benjamin explained, “The proposal emphasizes release over detention, with a preference for personal recognizance in most cases. For those persons who do not qualify for release on personal recognizance, NACDL supports standards requiring judicial officers to release the defendant with the least onerous conditions possible.”
According to the policy, the bond decision should begin with considering release on personal recognizance, unless the court makes an evidence-based determination that personal bond will not reasonably assure the accused’s future appearance in court or assure the safety of others or the community. For defendants the court finds unqualified for personal recognizance, NACDL supports the development of standards requiring judicial officers to order release on the least onerous conditions possible.
Financial bail (often known as cash or secured bonds) disproportionately disadvantages indigent and working class defendants who lack the financial resources to secure release, resulting in unnecessarily prolonged periods of pretrial detention, even though they may pose no substantial risk of flight or danger to the community. Pretrial detention not only results in such collateral consequences as loss of employment and eviction from housing, and detained individuals are markedly disadvantaged in assisting counsel in preparation for trial. Pretrial detention also effectively coerces even innocent defendants into pleading guilty in exchange for a sentence of “time-served.”
In the vast majority of cases, particularly non-violent offenses, pretrial supervision can ensure a defendant’s appearance and public safety without the discriminatory and disparate impact of financial bonds. But NACDL acknowledges in the proposal that a monetary bond may be appropriate in a limited number of cases, provided that the bail is not excessive.
The policy cites U.S. Attorney General Eric Holder’s assertion that “[a]lmost all of these [detained] individuals could be released and supervised in their communities – and allowed to pursue and maintain employment and participate in educational opportunities and their normal family lives – without risk of endangering their fellow citizens or fleeing from justice.”
The bail reform debate has waxed and waned many times since the 1968 Crime Control Act. What is new this time is that NACDL’s proposal recognizes that conditional release still imposes substantial restrictions on liberty. Curfews, restrictions on travel or employment, mandatory reporting do not allow accused persons, who are presumed innocent, the same freedoms they enjoyed before arrest. Therefore NACDL advocates that defendants released under any significant pretrial restriction of his liberty, including home confinement, should get credit against any future sentence.
A chief proponent of the credit for significant liberty restrictions, NACDL President-Elect Jerry J. Cox, advocates for the credit any time there is a deprivation of liberty, including (but not limited to) home detention, electronic monitoring (“ankle bracelet”), drug testing, restricted work release, or in any case where the individual is required to pay for pretrial supervision.
Vital to bail reform is the proposal that jurisdictions create independent pretrial services agencies to conduct background investigations to advise the court with evidence-based release and bail recommendations. Verified information and recommendations allow for more accurate decision-making, the proposal says. If the court determines that supervised release is appropriate, the pretrial services agency would be responsible for supervising, monitoring and counseling the defendant while his case is pending.
Immediate Past President Lisa M. Wayne, who initiated the proposal and organized the Task Force on Pretrial Justice, emphasized that “This is the first step in a long-overdue overhaul of an outdated and unfair process that favors the haves over the have-nots and is a major factor contributing to mass incarceration in this country.”
Ms. Wayne and Mr. Benjamin will continue to work actively with the task force to implement bail reform nationwide.
The policy report is on NACDL’s website at http://www.nacdl.org/resolutions/2012am1.