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Pretrial Release Advocacy

In Salerno v. United States, 481 U.S. 739 (1987), the Supreme Court observed that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Despite this precept, some would argue that the exception has swallowed the rule. According to the Pretrial Justice Institute, more than 60% of inmates in local jails nationwide are awaiting trial. These persons, all of whom are presumed innocent, have been charged with offenses ranging from nonviolent misdemeanors to serious felonies. One estimate indicates that half of local corrections costs can be attributed to inmates in pretrial detention.

People in pretrial detention may lose their employment, businesses, and housing; suffer disruptions in education; and experience serious damage to family relationships. These costs and consequences reverberate throughout the criminal justice process. Studies show that defendants detained in jail while awaiting trial plead guilty more often, are convicted more often, are sentenced to prison more often, and receive harsher prison sentences than those who are released during the pretrial period. Avoiding unnecessary pretrial confinement and its attendant fiscal, personal and societal costs should be of paramount importance to every court system.

Defender Advocacy Manuals

Perhaps the most important factor in reducing unnecessary pretrial confinement is the presence and effective representation of a defense attorney at the initial appearance and bail review hearing.  When defense attorneys are present, defendants are more likely to be able to present favorable and verified information to the court establishing that a defendant is not a flight risk and will return to court if released. They are able to identify potential legal defenses, raise issues regarding the sufficiency of the charges and challenge whether there was probable cause for the defendant’s arrest. They can advocate for the least restrictive conditions of release that will reasonably ensure a defendant’s attendance at court proceedings and protect the community. They can identify defendants who may be eligible to participate in drug treatment, diversion programs or other pre-adjudication alternatives to incarceration.

Pursuant to a grant from the Bureau of Justice Assistance, NACDL is completing a series of jurisdiction-specific manuals to give defenders the tools to effectively argue for pretrial release. These manuals include sections explaining risk assessment instruments, bail statutes, state and federal case law, and appeal procedures. The manuals also include important practice tips for defense attorneys, including pointers for the first interview, arguments against excessive bail or over-conditioning, and sample motions.

The Colorado Bail Book 

The New Jersey Pretrial Justice Manual 

The Wisconsin Bail Book (forthcoming 2017)

See also, NACDL Resolution on Counsel at First Appearance 

Defender Joint Statement on Pretrial Risk Assessments

The American Council of Chief Defenders, Gideon’s Promise, National Association for Public Defense, National Association of Criminal Defense Lawyers, and the National Legal Aid & Defender Association strongly endorse and call for the use of validated pretrial risk assessment in all jurisdictions, as a necessary component of a fair pretrial release system that reduces unnecessary detention and eliminates racial bias, along with the checks and balances set forth in this statement.

While there are concerns that the use of pretrial risk assessment instruments fails to address existing racial bias in the criminal justice system, those concerns should not be used to deter the use of pretrial risk assessment, but should instead be used to guide protocols for implementation, data collection and analysis; to identify points in the system which may require amelioration; and to act as the basis for ongoing monitoring by advocates and community groups external to the system.

Read the May 10, 2017 statement here.

Additional resources on pretrial release 

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