Policies and practices for programs must be guided by the pretrial legal foundation, applicable laws, and methods that research has proven to be effective.
The legal foundation for case processing during the pretrial stage can be found in the Constitution of the United States, case law, and state and federal statutes. There are six critical principles found in the law that serve as the framework for the operation of pretrial services programs:
• Presumption of innocence;
• Right to counsel;
• Right against self-incrimination;
• Right to due process of law;
• Right to equal protection under law; and
• Right to bail that is not excessive.
The six legal principles are not fully inclusive of all of the rights afforded to a defendant during the pretrial stage. There are many other legal protections provided to defendants during this stage, including but not limited to, the requirement of a probable cause hearing within 48 hours, the right to confront witnesses, and the right to a fair and speedy trial, for example.
History of Reform
Little attention was paid to the bail system, and any problems that might exist in it, from the beginning of the republic until the early part of the 20th Century. Bail studies were conducted in Cleveland and Chicago in the 1920s, and in New York and Philadelphia in the 1950s. Formal retrial services programs, which now operate in more than 300 counties and in all 94 districts in the Federal court system, trace back to 1961 with the Manhattan Bail Project, a program that was designed to help defendants who were unable to post the financial surety bond conditions set in New York City. Defendants were interviewed for information about community ties to determine their likelihood of appearing in court. Based on these interviews, low risk individuals were recommended for release on their own recognizance rather than financial conditions. An evaluation of the project found that defendants who did not have to post bond were just as likely to return to court as those who did post surety bond. Moreover, the project found that when judges were given verified information about defendants, including assessments about their likelihood of appearing in court, these defendants were three times more likely to be released on personal recognizance than comparison group defendants who had no risk assessments done. Similar entities were started in dozens of jurisdictions around the country to provide judges with information that would enable them to use a range of nonfinancial conditions.
A key piece of legislation was the Bail Reform Act of 1966, establishing that risk, rather than money, would determine pretrial release and conditions. The law encouraged judges to consider factors other than the seriousness of the charge in setting conditions of release adopt alternative conditions to money bonds. In addition to the nature of the offense and weight of the evidence against the accused, courts were also asked to weigh the defendant’s time in the area, living situation, employment status, ties to the community, drug, alcohol, or mental health status, and prior criminal record. The act listed a range of options that would be available to the judicial officer when making a pretrial release decision, and established a clear preference for release on non-financial conditions, stating that financial conditions could only be used if non-financial release could not reasonably assure appearance. Over the next several years, most states re-wrote their pretrial release statutes modeled after the Bail Reform Act. Rather than focusing just on indigent defendants, as programs had done prior to the Bail Reform Act, pretrial programs were now tasked with interviewing and investigating all defendants so that the court would have information on all the factors it was required to consider on every defendant.
The American Bar Association first developed standards on pretrial release as part of their Criminal Justice Standards in 1968, calling for the presumption of release on the least restrictive conditions necessary to reasonably assure the defendant’s appearance in court. The National Association of Pretrial Services Agencies (NAPSA), a membership organization of pretrial services practitioners and others interested in pretrial justice reform, was established in 1972 and later released its own standards. The ABA and NAPSA standards are updated periodically.
In the 1970s and 1980s, the mission of pretrial services expanded further to include public safety. Many of these statutory revisions did more than simply add community safety as a co-equal consideration in the bail decision, establishing instead the safety of the community as the primary consideration, and risk assessments were revised accordingly. Many of these danger statutes also authorized courts to hold defendants without bail in certain circumstances if it was determined that no release conditions or combination of conditions could reasonably assure public safety. As a result, pretrial services programs completed their transformation from being entities that sought only to release low FTA risk indigent defendants to becoming vital assistants to the court to help judges sort out which defendants could be safely released and which needed to be held.
In the late 2000s, a third generation of bail reform came to fruition, beginning with the National Symposium on Pretrial Justice in 2011. From that symposium and the recommendations from the Attorney General, a Pretrial Justice Working Group was created to address issues relating to bail and pretrial justice. During this generation several national organizations have come out in support of a pretrial system that uses legal and evidence-based practices at the front end of the criminal justice system leading to the use of validated-risk assessments and pretrial supervision and diversion.