Availability of Detention With Due Process

detention header

Recommendation

States should ensure that bail statutes include a provision for risk-based preventive detention.

Description

This tool is needed by courts to order detention through due process for defendants who pose unmanageable risks to public safety or are at high risk of failing to appear in court. The existing practices of setting high dollar bonds and hoping the defendant cannot make the bond violates due process. Also, statutes that allow for preventive detention only in capital cases or other listed offenses should be altered to require risk, not offense, as the basis for allowing detention pretrial.

American Bar Association Standards

Standard 10-5.8 through 10-5.10

  ...After a hearing and the presentment of an indictment or a showing of probable cause in the charged offense, the government proves by clear and convincing evidence that no condition or combination of conditions of release will reasonably ensure the defendant's appearance in court or protect the safety of the community or any person, the judicial officer should order the detention of the defendant before trial.
ABA Criminal Justice Standards on Pretrial Release Third Edition

Resources

District of Columbia: Release Prior to Trial Code
District of Columbia Pretrial Code.pdf
63.4 KiB

Details
New Jersey Jail Population Analysis
New Jersey Jail Population Analysis - VanNostrand 2013.pdf
885.8 KiB

Details