Bail and Pretrial Release: A Q and A: May 2012  | STATE LEGISLATURES MAGAZINE

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Timothy Murray and Dennis Bartlett spoke with State Legislatures about the pros and cons of pretrial release and commercial bail.

Murray is the executive director of the Pretrial Justice Institute, a national organization dedicated to ensuring informed pretrial decision-making. Bartlett is the executive director of the American Bail Coalition, which represents the nation’s underwriters of criminal court appearance bonds and works to educate on the benefits of commercial bail bonding and to advance the interests of their member companies. 

Timothy Murray

State Legislatures: Use of nonmonetary, “release on recognizance” has declined in pretrial release over the past 10 to 15 years. Are there nonfinancial release options that you would suggest could be used both safely and more frequently?

Murray: Yes. First, based on what we know about low rates of failures to appear and pretrial rearrest among those objectively assessed as low-risk, many people could be safely released on their own recognizance. For them, studies have shown use of formalized court reminder programs can help ensure higher rates of court appearance. Second, for those objectively assessed to present moderate or higher rates of risk, court-ordered supervision is the most effective means of achieving the two purposes of bail: ensure appearance in court and public safety. Several years ago the National Institute of Justice, (NIJ), the research arm of the Justice Department, conducted a controlled experiment testing the efficacy of supervised pretrial release. Simply put, supervised pretrial release accountably monitors pretrial defendants in the community using an array of supervision conditions designed to minimize failure to appear in court and re-offending. NIJ’s experiment showed conclusively that randomly assigned defendants who were placed into supervision had better outcomes than those who were released on financial bonds. Other studies have shown the costs of supervised pretrial release averages is less than $10 per day, a fraction of the cost of housing, feeding and medical care required for defendants in local jails.

With appropriate pretrial supervision, communities can realize significant cost savings without incurring additional risk to public safety or court process. Many communities are using existing probation resources to perform this work with good results, while others have dedicated pretrial services programs either county-run or contracted to nonprofit agencies.

SL: An important trend in criminal justice policy today is risk-based decision making. How is or how can this be effectively put in practice in pretrial release?

Murray: The use of risk assessment has gained widespread use across our criminal justice systems for good reasons. These empirically validated tools help decision makers make the best use of scarce resources while maintaining a sharp focus on public safety. Courts are using risk assessments at sentencing, and probation and parole agencies are using them to develop appropriate supervision strategies. In the pretrial arena, risk assessments offer enormous help to judges who often have to make pretrial release decisions very quickly. At this decision, the risk is of rearrest during the pretrial phase, as well as risk of failing to appear for court hearings. These are different tools than those that assess risk of recidivism over a one- or three-year period. Knowing what risk level a defendant is allows judges to fashion nonfinancial supervision conditions to mitigate those risks, just as they do when setting conditions of probation.

In most communities, the offense alone is used to set bond, rather than a comprehensive assessment of the risk presented by the person. The results of this practice are not surprising: Two people with very different risk levels but charged with the same crime are typically given the same bond amount. The court then has no control over which one gets out. When we examine the jail populations in the country today, we often that most of the pre-trial defendants—they make up two-thirds of the jail population—are lower-risk defendants with low bond amounts who were not able to post the small amount needed to be released. This system is costing taxpayers significant money. Having risk assessments instead of pre-set bond amounts based on charge alone allows judges to make safe and informed decisions. The results are better outcomes for all concerned.

SL:  What do you see today as the greatest opportunity for and biggest challenge in pretrial release?

Murray: Our biggest challenge is to bring pretrial justice policies into an evidence-based paradigm. We have made great strides in reentry and probation and now sentencing practices. We made progress because we recognized the failings of our current policies and practices, both in terms of outcomes and return on investments. It is time now to continue that enlightenment in the pretrial phase of a criminal case. The current cash-based system for pretrial release or detention decision-making causes profound damage to victims, defendants and their families, and ultimately to our communities.

The greatest opportunity for pretrial justice now is the intersection of the science of “what works” and growing bipartisan support for being “smart on crime.” The public deserves a justice system that is transparent and accountable, that produces the best outcomes and the highest return on investments. Growing support for pretrial justice reform is rooted in the belief that we can and must do a better job of protecting our streets while safeguarding individual rights. We have the tools to administer safe, effective and fair pretrial justice systems; and those who make and administer our laws must now use those tools.

Dennis Bartlett

State Legislatures: Commercial bail is the most common form of pretrial release. What are the public safety benefits?

Bartlett: The advantages are huge. Out of the 13 million arrests a year, 3.75 to 4 million are released on corporate surety bonds. Of this cohort of defendants, 97 percent to 98 percent will appear in court to face charges. Furthermore, the commercial bonding community assumes this burden at no cost to the taxpayer. Evidence shows defendants released on a corporate surety bond are less likely to commit crimes than those on other methods of release. If a defendant skips, commercial bail will locate and return to custody all but about 3 percent. For those permanently absconded, the bail community will pay a forfeiture in cash to the court. A crucial factor attenuating pretrial misconduct is the involvement of the family. A defendant is released pending trial because somebody wants him/her out of jail. While a defendant might not heed or respect the court or law enforcement, when it comes to family or friends, loyalty to same motivates the defendant to stay out of trouble. This has a major positive consequence for public safety for millions of citizens.

SL: Use of commercial bonds depends on ongoing and effective public-private partnerships. How does this partnership contribute to effective criminal justice systems?

Bartlett: The commercial bail system nationwide operates under long established laws and regulations by which it serves both its clients and the courts, which in a sense are also clients of the bail industry. Bail agents are a necessary and integral part of the pretrial process. They help the court maintain a social control over the defendant in a manner unknown to pretrial services bureaucracies. The participation of friends and relatives is vital to both the court and bondsman by providing additional follow-up to ensure the defendant’s appearance in court. Local law enforcement is strapped for resources and agents fill the gap by apprehending absconded defendants. Bondsmen also assist the court to resolve mistaken and erroneous court dates. The bonding industry also helps ease the pressures of jail overcrowding by taking responsibility for defendants that the court could otherwise not release.

SL: What do you see today as the greatest opportunity for and biggest challenge in pretrial trial release?

Bartlett: The biggest opportunity and greatest challenge are linked. It is to maintain a balance. On the one side of which are the rights of accused people to be released on reasonable bail pending their trials. The Bail Clause of the Eighth Amendment to the Constitution embodies the long Anglo-American legal tradition favoring pre-trial release of accused persons. Bail insurers make this a reality by providing a financial service that permits such people to post bail. The bail bond system thus performs an extraordinarily valuable public service by permitting accused people to participate more fully in their own defense while at the same time freeing up crowded jail space. On the other side of the balance are the interests of the people as a whole in ensuring the people accused of crimes appear for trial and that fugitives be returned to justice. Bail insurers provide appropriate assurances to the state that an accused person will appear as scheduled to answer charges. If the defendant absconds, the bondsman has significant financial incentives to take investigative steps to insure his return. These efforts are credited with recovering thousands of fugitives each year. Without their efforts, these fugitives would either remain at large or significant state and local police resources would need to be diverted from other law enforcement activities to secure their capture. In short, the system works well, returning many fugitives to custody at no cost to the government and with a low rate of abuse.