The Pretrial Justice Institute is the nation’s only nonprofit organization dedicated to ensuring informed pretrial decision-making for safe communities. When people are arrested, their release or detention pending trial should be based on a thoughtful, informed assessment of whether they will stay crime-free while on release and return to court for trial. |
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Where We Stand
- Cite and Release PJI supports the use of Cite and Release programs by law enforcement personnel to address misdemeanants. These programs permit law enforcement officers to write citations for low-level crimes and then release, rather than arrest, the arrestee. Cite and Release programs prevent the unnecessary detention of low-risk individuals and crowding of jails while simultaneously freeing officers to conduct community-policing activities as well as attend to more dangerous and immediate threats.
- Crisis Intervention Teams PJI supports the implementation and use of Crisis Intervention Teams to respond to individuals suffering from mental illness crises. These teams are innovative police-based first response programs that identify and divert mentally ill individuals away from the criminal justice system and into more appropriate and less stigmatizing avenues for treatment. The increased use of Crisis Intervention Teams will serve to protect officers, prevent unnecessary detention of mentally ill individuals, and provide access to mental health treatment for those who need it.
- Proactive Use of Diversion Programs PJI supports the proactive participation of prosecutors in the identification and placement of appropriate defendants into pre-plea, pre-adjudication diversion programs. In particular, PJI supports the use of diversion programs for misdemeanors and first-time offenses not impacting public safety. These programs prevent the overcrowding of jails, lighten the caseload of prosecutors and courts, and prevent the collateral consequences of incarceration and criminal records. Prosecutors play the key role in determining which defendants may qualify for diversion, and as such are primarily responsible for the effective use of such programs.
- Community Prosecution PJI supports the adoption of community prosecution by local prosecutor offices. According to the Association of Prosecuting Attorneys, community prosecution is a "long-term, proactive partnership among the prosecutor's office, law enforcement, the community and public and private organizations" under which "prosecutors are viewed not just as officers of the court who come on scene once a crime has occurred, but rather as members of the community who have the power to stop crime from occurring." This approach allows prosecutors to become familiar with communities and generate crime prevention and solution strategies, rather than simply addressing the crimes once they have already occurred.
- Collaborative Use of Problem-Solving Courts PJI supports a collaborative and aggressive approach to the use of drug courts and mental health courts by prosecutors and defense counsel. A significant number of defendants have either or both mental illness and substance abuse problems, and these courts are designed specifically to address defendants dealing with those issues. Employment of evidence-based decision—making, as well as considerations of cost-effectiveness, compel use of mental health courts and drug courts for the appropriate defendants. As with diversion programs, prosecutors largely serve as the gatekeepers to such courts. PJI supports the collaboration of courts, prosecutors, and defense counsel to establish objective criteria for admission. Defense counsel should also advocate for admission to pre-plea, pre-adjudication diversion programs.
- Representation at Initial Appearances Where Bail is Set PJI supports the zealous advocacy of defense counsel at their clients’ bail determination hearings, in accordance with the Recommendations by the American Bar Association on First Appearance Hearings. In particular, PJI strongly supports the appointment of counsel to indigent defendants prior to all first judicial appearances. Though the Supreme Court held in Rothgery v. Gillespie, 554 U.S. 191 (2008), that a defendant’s right to counsel attaches at the first appearance hearing, defendants are often subject to bail proceedings without the benefit of counsel. This is particularly true for indigent defendants. Consequently, many defendants spend unnecessary time in jail because they cannot make bail. By attending bail setting hearings, defense counsel can ensure that their clients are not subject to excessive bail and have every opportunity to obtain pretrial release during which they can participate in their own defense.
- Release Upon the Least Restrictive Conditions PJI supports the practice by prosecutors of recommending to judges appropriate bail comporting to the least restrictive conditions necessary to ensure public safety and prevent risk of flight. PJI supports the practice by defense counsel of making motions to secure pretrial release upon the least restrictive conditions necessary to achieve the purpose for which bail is being set. The law favors release prior to trial and, as Justice Rehnquist stated in Salerno v. United States, 481 U.S. 739, 755 (1987), "detention prior to trial is the carefully limited exception." The Supreme Court has only recognized two legitimate purposes for bail: 1) Protecting the community from future criminal acts, and 2) ensuring the defendant’s appearance at court proceedings. As such, bail should be closely tailored to effectuate those purposes. However, courts frequently set bail by rote, according to established bond schedules, and as a result, bail for many defendants is set at inappropriately high financial amounts unconnected to public safety or future appearance.. In turn, such defendants cannot obtain the release to which they have been ruled entitled. Consequently, prosecutors can and ought to request bail that is no greater than necessary to effectuate community safety and the defendant’s appearance in court. Defense counsel can and ought to move to have bail reduced to the least restrictive conditions under such circumstances.
- Avoid Reliance Upon Bail Schedules PJI strongly supports the judicial practice of conducting individualized bail determinations, rather than reliance upon a locally promulgated financial bond schedule. Bond schedules fail to consider the personal characteristics and risk factors of each individual defendant, and as such, bond set according to such schedules is often inappropriate. The result is unnecessary detention for low-risk defendants who cannot post financial bonds of even low amounts. In addition, bail fixing according to predetermined schedules arguably runs afoul of due process requirements, as well as the prohibitions against excessive bail contained in the Eighth Amendment. Individualized bail determinations will serve to alleviate unnecessary detentions and prevent unconstitutional bail conditions. They will also, if combined with appropriate conditions of supervision, provide for superior public safety.
- Favor Non-Monetary Release PJI supports the preference for non-monetary release for the majority of defendants. Monetary release conditions are ineffective to prevent future criminal acts by the defendant and as such should never be used where the court finds the defendant poses a risk to the community or victims. Where the court determines that monetary release conditions are the only conditions that can reasonably assure the defendant’s future appearance, the court should require cash deposit with the court, instead of compensated sureties.
- Supervision Tailored by Risk Assessment PJI supports the creation of a tailored supervision strategy for each defendant objectively and scientifically assessed for his or her risk to public safety and failing to appear in court. Regardless of the entity conducting the supervision, all who claim responsibility for supervising defendants in the community should be required to submit regular compliance reports to the court, to ensure that the supervision conditions are both the least restrictive but most effective at protecting the community and ensuring court appearance.
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