Criminal Courts

V. Issues Surrounding Pretrial and Trial Procedures in Court

A. Bail and Preventative Detention

Bail can be defined as money provided in exchange for release from custody. Bail is basically money or some other surety given as promise that a defendant will appear for court. However, bail is more than money as an assurance to appear for court proceedings. The decision about release or detention represents one of the most important in the U.S. system of justice. Throughout history, bail could range from simply a defendant’s word that he or she would appear to turning over one’s property as a guaranteed appearance at trial. Through the industrial revolution and as the United States became more urbanized, one’s oath or property no longer sufficed as a guarantee of appearance for trial. Bail eventually became a monetary provision given in exchange for release of a defendant. This spawned the business of bail bonding and bondsmen as the main method for release from custody. As money became the main method for release, criticisms began to arise that bail was a form of economic discrimination against poor defendants. Defendants who could afford bail were released; defendants who could not were kept in detention.

Some believe that all defendants should be entitled to bail. However, the Eighth Amendment of the Constitution is not a guarantee of bail, only a protection against excessive bail. Although bail is not intended to be a form of punishment, judges generally have unlimited discretion on the imposition of a bail amount. In the case of Stack v. Boyle (1951), the Supreme Court defined excessive bail as that which is above a reasonable amount necessary to guarantee a defendant’s appearance for trial. The ruling also advised judges to impose similar bail in similar cases and stated that bail should not be frivolous, unusual, or beyond a defendant’s ability to pay.

On any given day, over 50% of the U.S. jail population is composed of pretrial detainees (U.S. Department of Justice [USDOJ], 2006). Holding these detainees who are awaiting trial or disposal of their cases costs the criminal justice system a great deal of money. Research on convictions and sentences of defendants reveals that those who are held in detention are more likely to be convicted, and if convicted are more likely to be sent to prison and also receive lengthier sentences. Nonetheless, despite these statistics the Supreme Court, in the case of United States vs. Salerno (1987), ruled that the practice of preventative detention is constitutional. This ruling justified preventative detention in an attempt to protect the community and as a method of crime control. The Supreme Court also upheld the constitutionality of preventative detention for juveniles in the case of Schall v. Martin (1984).

1. The Preventative Detention Controversy and Bail Reform

Controversy surrounds how best to preserve the idea of innocent until proven guilty while attempting to protect the community from dangerous offenders or those likely to recidivate. The Bail Reform Act of 1984 allows the detention of a defendant prior to trial if a judge does not believe that any conditions exist that will ensure that the defendant will appear in court. Numerous states also have statutes authorizing detention of those considered dangerous or likely to reoffend.

However, because of continuous criticisms that bail discriminates against poor defendants, many attempts have been made at reforming bail. The Vera Institute of Justice and its famous Manhattan Bail Project in 1961 changed the practice of money as the primary mode of bail. Prior to this, those who had money could make bail and those who did not were detained. The Vera Institute and the Manhattan Bail Project used law students who provided judges with more detailed information about defendants, thereby allowing them to make more informed decisions about which defendants would be most likely to appear or not reoffend. Because the project was such a success, the Bail Reform Act of 1966 was passed and release-on-recognizance (ROR) programs were implemented in courts across the country. The 1966 Bail Reform Act set forth that ROR was to be considered in lieu of monetary bail; it also created a form of bail, referred to as deposit bail, in which defendants would pay 10% of their bail amount.

This act and the practice of ROR would soon fall out of favor because of fears that defendants who were released were reoffending. The Bail Reform Act of 1984 was passed, setting forth new rules regarding bail. These new rules stated that judges should consider protection of the community as well as the defendant’s likelihood of appearance in court when making decisions about bail. Under the 1984 act, many more persons were held in detention. Bail as a method of ensuring a defendant’s appearance in court continues to undergo changes, and more jurisdictions are utilizing nonmonetary methods of bail. Criticisms have also surfaced that race and other extralegal factors may play a more important role in decisions about bail than the risk of either absconscion or community safety.

On both sides of the preventative detention controversy, arguments can be made for reforming bail. Those who believe bail is a form of monetary discrimination that leads to jail overcrowding believe that the principle of innocent until proven guilty should be at the forefront of all bail decisions. Those advocating for tougher standards believe that the primary concern is protection of the community. Until Congress or the Supreme Court decides to modify the rules regarding bail, the debate about what is a just, fair, and protective method of bail decision making is likely to continue. Judges must weigh both sides in making a determination of bail on a case-by-case basis.

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