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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 recent data from the Prison Policy Institute, over 75% of those detained in local jails have not been convicted of a crime; two-thirds of the state pretrial population is being held for a non-violent offense.

People in pretrial detention face the loss of their employment and housing; they suffer disruptions in their education, medical treatment, and medications; they face serious damages to their family and community relationships. These costs and consequences reverberate throughout the criminal justice process. Those who are held in pretrial detention are more likely to be convicted, to be sentenced to jail and prison, and overall receive lengthy sentences then their peers who are released pending disposition of their cases. Those held in jail even for a few days are at great risk of being re-arrested both while their cases are pending and in the two years following their conclusion. Avoiding unnecessary pretrial confinement and its attendant fiscal, personal and societal costs should be of paramount importance to every court system.

Defender Advocacy Materials

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 completed a series of jurisdiction-specific materials to give defenders the tools to effectively argue for pretrial release. These include sections explaining risk assessment instruments, bail statutes, state and federal case law, and appeal procedures, as well as important practice tips for defense attorneys, including pointers for the first interview, arguments against excessive bail or over-conditioning, and sample motions.

Colorado 

Harris County, TX (Houston area) 

New Jersey 

Wisconsin 

Additional Resources 

 

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