Pretrial services as a profession has been in existence since 1961. It grew out of the “War on Poverty” during the Kennedy and Johnson administrations, and as a reaction to severe crowding and rioting in New York City’s jails. Investigation into the causes of the riots showed a majority of the inmates were in custody only because they could not afford to post bail.
Legal scholars during the 50’s had suggested there were serious constitutional questions about the bail system. They charged the system with violating the 8th amendment, “Excessive bail shall not be required”, which had been interpreted by Stack v. Boyle (342 U.S. 1 1951) to mean that bail should not be set higher than the amount reasonably needed to assure the defendant’s appearance in court.
Paul Wice, in his book Freedom For Sale (1974) commented on the bail system by stating that “…blatant economic discrimination inherent in this system seems to clearly contradict the equal protection clause of the 14th amendment. Our courts have permitted a system of justice which allows one’s pretrial freedom to be put up for sale and those defendants unable to pay must suffer the due consequences.” (pg. 160).
The systematic use of own recognizance release was seen as a way to relieve the inequities of the bail system. The assumption was that people with strong ties to the community could be safely released from jail on a written promise to make all their court dates. The first experiment with O.R. release was called the Manhattan Bail Project. It began in 1961 in New York City using students from local law schools to interview in the jails. The experiment proved to be very successful – failure to appear rates were low and the jail population went down.
The success of the Manhattan Bail Project sparked a nationwide movement. Within months after the National Conference on Bail and Criminal Justice in 1964, most large metropolitan jurisdictions had started their own “bail project”. In California, programs started in Oakland, San Francisco and Los Angeles.
According to the California law (Penal Code section 1270), a person arrested for a non-capital offense is entitled to be considered for an O.R. release and may be released by a “court magistrate”. California law (Penal Code section 1318.1) authorizes a court, with the concurrence of the Board of Supervisors, to employ an investigative staff for the purpose of preparing investigative reports for the courts to be used to determine a defendant’s eligibility to be released on his or her own recognizance.
SERVICES PROVIDED BY PRETRIAL AGENCIES:
- Jail screening and interviewing of all arrestees immediately after arrest or within a few hours.
- In-depth investigation of the arrestee’s ties to the community, past record, potential dangerousness to the community, past history of failures to appear, and the seriousness of the current criminal charges. Investigation includes contact with the arrestee’s references, and Probation/Parole Officers.
- Preparation of a written report to the court and the presiding magistrate, summarizing the defendant’s ties to the community and a recommendation for or against release based on an objective point scale.
- Case monitoring of conditions of release and court date notification system for those defendant’s released on their own recognizance. May include but is not limited to weekly phone contact with the defendant, reminder letters and/or phone calls.
- Supervised release for selected defendants to insure they make all court dates, and social services referral for those defendants in need of substance abuse, psychiatric or domestic violence counseling; housing; and medical aid.
- Follow-up services to locate O.R’d defendants who have failed to appear and return them to the court system without the unnecessary costs of an arrest.
FIVE REASONS WHY PRETRIAL SERVICES ARE IMPORTANT:
- IMPROVE RELEASE/DETENTION DECISION MAKING PROCESS in the courts. The judges are provided with comprehensive, accurate information about the defendant’s ties to the community, potential dangerousness, and reliability. There is no other source for this information.
- PROTECT PUBLIC SAFETY by insuring that only those defendants who can safely be released are released.
- INCREASE THE USE OF NON-FINANCIAL RELEASE alternatives, which reduces the percentage of pretrial detainees in the jail.
- MONITOR RELEASED DEFENDANTS to insure their appearance in court and track down defendants who have failed to appear.
- SAVE TAXPAYERS MONEY by reducing the costs of jailing pretrial defendants.