Understanding Pretrial Release Programs

In accordance with American principles of justice, anyone accused of a crime is considered innocent until either being convicted in court or admitting to his or her guilt through a plea bargain arrangement. The fact that individuals can be held in custody pending any court verdict seems to fly in the face of this concept. The system of bail addresses this issue by allowing those charged with crimes to remain free until the case is resolved. A pretrial release program is a relatively new innovation that makes possible the freeing of accused criminals without the need to post bail. Long a part of the American criminal justice system, bail is usually available to those charged with all but the most serious crimes. Bail agents are largely private contractors who are willing to post, in dollars, the amount stipulated by the court in order to secure the release of the defendant. Depending upon the state, bail agents will keep either 10 or 15 percent of the total amount as a “commission” for the service they have provided.

Although the U.S. Constitution prohibits excessive bail, the prospect of releasing those charged with crimes without posting a significant amount as collateral raises other concerns, including those related to public safety. The pretrial release program was established for the purpose of addressing both of these issues. The first such program was initiated in New York City in 1961. The Manhattan Bail Project was created out of concern that many defendants, some possibly innocent, were being unjustly held in custody simply because they lacked the resources to seek bail. This principle was established on a large scale in 1966 and allowed those charged with most federal crimes to be released on their own recognizance, or ROR, without posting bail.

Pretrial release programs are today widely used at the state level throughout the U.S. One of the most important elements of the ROR system is a determination of whether the person being freed will attempt to flee the state or country in order to avoid prosecution. One study showed that nearly 30 percent of the defendants released on their own recognizance failed to appear in court. Among those who were ROR, 10 percent had yet to be apprehended a year after being freed, compared to only 3 percent of those released on bail. The relatively low rates of flight of those participating in the New York program have not been duplicated elsewhere, the higher rates experienced in them being attributed to inefficiencies in both the selection process and the monitoring of the defendants. In an attempt to reduce flight, some programs have incorporated related services, including drug treatment and constant monitoring.

Pretrial release programs are also useful in reducing prison overcrowding. They are less than popular among bail agents, who rely upon criminal defendants for their incomes, and members of the public, who are leery of mingling with others who may later be found guilty of crimes. Balancing these issues, pretrial release programs will continue to be a part of the American system of justice.

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