Pretrial Release and Diversion Chapter 2 Pretrial Release and Diversion

Pretrial Services Pretrial Services is a department with two overlapping functions: Assisting the court with release/detention decisions. Supervising those persons conditionally released on bond so they appear at their next court date. The pretrial release decision is the defendant’s release from jail for the purpose of securing appearance at the next court proceeding. Pretrial release allows the defendant to remain in the community and work as a productive citizen. LO: 1

History of Pretrial Release The Manhattan Bail Project in 1960 began to assist judges in identifying defendants who could be released on their own recognizance (ROR). 2 decades later, more than 200 cities had adopted similar programs. In 1984, the Federal Bail Reform Act added the safety of the public to the likelihood of appearance as a criteria for pretrial release. Most pretrial programs are funded by counties and administered by probation offices. LO: 1

The Pretrial Release Decision Most states use a quantitative point system to assess risk and need factors for the pretrial release system. The federal system utilizes an interview and assessment of risk of danger and nonappearance for each defendant. Benefits of pretrial services include lower jail populations as well as allowing defendants to remain employed and assist in their own defense. LO: 2

The Pretrial Release Decision, Con’t. The pretrial services officer assesses the defendant’s social and criminal history, but not the weight of the evidence in the pending charge. The personal interview of each defendant by a pretrial services officer is recommended by the National Association of Pretrial Services Agencies. Programs that interviewed defendants and used objective risk assessment instruments had less crowded jails. LO: 2

Types of Bonds Unsecured bond Release on recognizance Conditional release Surety bond Full cash bond Property/collateral bond LO: 2

Characteristics of Pretrial Releasees A 2006 study revealed that females over 40 years old with 1 or no misdemeanor convictions who were employed with some college education were most likely to be released on bond. Persons with mental illness were considered for release due to better service availability in the community. LO: 3

Recent Trends in the Federal Release Decision Despite the changes that were made to reform bail in the 1960s and keep people out of the system, there seems to be a growing trend toward an increase in federal pretrial detention once again. Pretrial detention rates have been steadily increasing in the federal system since 1992 to the present time, and now comprise over 60% of defendants. LO: 2

Pretrial Supervision Most state and federal felons released on bond have some sort of pretrial supervision. Only 2 out of 10 defendants evaluated are recommended for supervision. Defendants on supervision are typically required to call in weekly, comply with curfew, submit to drug testing, maintain employment and avoid contact with victims or witnesses. LO: 1

Pretrial Supervision, Con’t. 89% of the first violations of minor release conditions result in a warning on the first occasion, while on a second violation, 86% are reported to the court. Serious violations result in the issuance of a bench warrant, detention or bail revocation. Defendants on bond for murder, burglary or motor vehicle theft the most likely to commit new felonies, but more likely to appear for court. LO:4

Failure to Appear Defendants who failed to appear (FTA) did not attend their court date and seemed most likely to flee the day before their trial, hearing, or just prior to surrendering themselves. Jurisdictions following up for failure to appear have decreased in recent years. 1 of every 4 local defendants was unsuccessfully terminated, usually for repeated non-appearance. Many pretrial programs lack funding to track FTA rates, and 71% have no means to track rearrest rates. LO: 3

Reducing Failure to Appear 87% of pretrial programs reminded defendants of their upcoming court dates. A study by Goldkamp and White (1998) failed to demonstrate that varying degrees of notification and deterrence made a significant difference in FTA and rearrest. Pretrial services officers submit a report to the sentencing court regarding the defendant’s compliance with bond conditions. LO: 4

Diversion Diversion is an alternative suspended sentence or deferred adjudication program that gives first-time offenders a chance to address specific issues, and can result in a dismissal of charges. Treatment Alternatives to Street Crime and the Manhattan Court Employment Project in the mid-1960’s were the first diversion programs. Diversion attempts to avoid the negative aspects of incarceration while providing rehabilitation in the community. LO: 3

Candidates for Diversion Diversion programs provide services for three types of individuals: Youthful or first-time adult offenders Persons with special needs, such as mental illness Persons who require treatment for a problem, such as drug or alcohol abuse LO: 3

Drug Courts Drug courts integrate outpatient substance abuse treatment with criminal justice case processing. Charges are dismissed if the program is successfully completed. Failure or withdrawal from the program results in charges for the original offense. LO: 5

Assumptions of Drug Courts First-time drug offenders or low-level drug users with a criminal record would be more likely to curb future drug use through treatment rather than punishment. The sooner the treatment, the better the result. The judge, prosecutor, defense attorney and probation officer play a non-adversarial role. LO: 5

Gender and Drug Court Treatment Strategies Drug courts might not adequately address gender or cultural issues. Women and men have different reasons for why they abuse drugs, use different drugs, and have different use patterns. Michigan, California and New York have developed separate programs for men and women. LO: 4

Evaluations of Drug Courts Research varies as to whether drug courts save money, since noncompliance results in longer stays in jail. The GAO found that completion and retention rates varied by program and were lower than expected. Drug courts may not be applicable to all substance abusers. LO: 5

Mental Health Courts An indigent person who is mentally ill but poses no danger to public safety may benefit more from mental health and social services than from the criminal justice system. A team approach is used, consisting of a judge, a treatment provider and a pretrial services officer with special training. LO: 5

Criticisms of Diversion Programs One criticism of diversion programs overall is a lack of clarity about the best course of action if a participant fails to complete the requirements of a program. A second critique of diversion programs is that they may be perceived by average citizens as absolving the defendant of responsibility. LO: 5