2 Pretrial ServicesPretrial procedures are important because majority of criminal cases are resolved informallyCharges can be dropped or dismissedPlea bargain can be madeCompetency hearings
3 BailBail: money or some other security provided to the court to ensure the appearance of the defendant at every stage in the criminal justice process.Purpose: obtain release from custodyIf defendant fails to appear, bail is forfeited and person is confined in jail until court appearance
4 Bail (cont.)Current data indicate about 2/3rds of those arrested made bail1/3rd are held in custody7% denied bailMurder defendants least likely to get bail1/3 of those released were rearrested
5 Bail (cont.)Purpose is to ensure appearance at trial, not punishCannot be arbitrarily denied or revokedCritics argue is discriminatory/objectionableWorks against poorState pays to incarcerate people who would otherwise remain in communityDetainees receive longer sentences than those on bailDehumanizingRacial/ethnic disparity
6 Bail (cont.)Pretrial ServicesCreated in 1960’s to improve release and detention decisions1980’s began to focus on identifying those who were unable to make bail but would be acceptable risks for releaseToday virtually all larger jurisdictions have pretrial release in one form or another
7 Bail (cont.)Pretrial Services Programs/ResponsibilitiesProvide information for judges to make release decisionsAssess likelihood of defendant failing to appear or being rearrestedMonitoring conditions of release or provide intensive supervisionProvide special services for those with mental illness
8 Bail (cont.)The Legal Right to Bail8th Amendment prohibits excessive bail, it does not guarantee a right to bail.Stack v. Boyle - If a crime is bailable, the amount set should not be frivolous, unusual or beyond a persons’ ability to pay under similar circumstances.Those unable to post bail are held in pretrial detention until trial.
9 Bail (cont.)Release on recognizance (ROR)Pioneered by the Vera Institute of Justice, Manhattan Bail Project in 1961concluded that release based on verified information was more effective than money bailFederal Bail Reform Act of 1966First change in federal bail laws since 1789release should be under the least restrictive method necessary
10 Bail (cont.)Federal Bail Reform Act of 1984 – mandated no defendant shall be kept in pretrial detention simply because they cannot afford money bailCommunity safety and risk of flight be considered – allows for preventive detentionCritics of bail reform argue emphasis should be placed on controlling the behavior of serious criminals
11 Preventive DetentionDefendants are held in jail based on the belief that they will commit new crimes while on release.Allows for detention without conviction for the protection of the defendant and that of the community.Critics believe it is punishment prior to conviction.
12 Preventive Detention (cont.) Some state jurisdictions have incorporated element of preventive detention into bail systemsExclusion of certain crimes from bail eligibilityDefinition of bail to include appearance in court and community safetyLimitations on right to bail for those previously convicted
13 Preventive Detention (cont.) Schall v. MartinPreventive detention of juveniles is constitutional because it is useful to protect the welfare of the minor and society as a whole.United States v. SalernoUpheld 1984 Bail Reform Act’s preventive detention provisionsPreventive detention act had a legitimate and compelling regulatory purpose which does not violate the due process clause.Society’s need for protection outweighs and individual’s liberty interest.
14 Pretrial DetentionThose unable or ineligible for bail are subject to pretrial detention.Pretrial Custody accounts for more incarceration than imprisonment after sentencing.Jails considered the weakest link in the criminal justice process.
15 Pretrial Detention (cont.) Effects of DetentionMore likely to be convictedReceive longer sentence than those released on bail.Less attractive plea bargains
16 Charging the Defendant Grand JuryTraced to English common lawFifth AmendmentPower to act as independent investigating bodyPresentmentTrue billNo bill
17 Charging the Defendant (cont.) Grand Jury (cont.)Controlled by the prosecutorClosed and secret deliberationsNeither accused or public allowed to attendA rubber stamp for the prosecutorProsecutor need not reveal evidence that might exonerate the accused
18 Charging the Defendant (cont.) Preliminary HearingUsed in about half the states as an alternative to the grand jury to determine probable causeOpen hearing conducted before a judgeRules of evidence applyJudge makes decision on whether to bind over for trialDefendant may waive the hearing
19 Charging the Defendant (cont.) ArraignmentOccurs after the indictment or preliminary hearingFiled in the court with jurisdiction to try the facts of the caseDefendant informed of charges and has counsel appointed if necessaryDefendant enters a pleaGuilty plea results in date being set for sentencingIf pleading not guilty a date is set for trial
20 Charging the Defendant (cont.) Types of PleasNot Guilty: verbally stated by defendant or entered by court if defendant refuses to answerNolo Contendere: (no contest) defendant does not admit guilt but agrees to accept punishmentGuilty: defendant admits criminality
21 Plea-BargainingMost common practice in the criminal justice systemConcessions of Plea BargainingReduction of initial chargesReduction of the number of chargesRecommendation for a lighter sentence than probableTo alter the chargesTo help move the case to a more lenient judge
22 Plea-Bargaining (cont.) BenefitsCosts of prosecution reducedEfficiency of courts improvedDefendant avoids lengthy pretrial incarceration and may receive a reduced sentenceResources devoted to cases that need greater attentionProsecution devotes more time to serious cases
23 Plea-Bargaining (cont.) OppositionEncourages defendants to waive their constitutional right to a trialDangerous offenders may receive lenient sentencesInnocent people may plead guilty if they believe the sentence is biased and they have little chance of acquittal or to avoid the possibility of harsh punishmentsProsecutors may induce or compel defendants to plead guiltyA “guilty plea culture” develops among defense attorneys.
24 Plea-Bargaining (cont.) Legal IssuesDefendants are entitle to effective assistance of counsel.Plea must be made voluntarily and without pressure.Innocent persons can plead guilty to gain a lenient sentenceBoth the prosecutor and defendant must honor any promise madeProsecutors may threaten to indict defendants on more serious charges if they do not plead guiltyStatements made during negotiations may be used against defendant
25 Plea-Bargaining (cont.) Factors Affecting the Prosecutor’s DecisionNature of the offenseDefendant’s prior record and ageThe type, strength and admissibility of evidence in the caseAttitude of the victimIntangible factors
26 Plea-Bargaining (cont.) Defense Attorney’s RoleAdvisory roleEnsure the defendant understands the nature of the plea bargaining process and the guilty pleaMake sure defendant understands the alternatives available to themMust communicate all plea-bargain offers to client
27 Plea Bargaining (cont.) Judicial participation in plea negotiationsCreates impression on defendant that he/she could not receive a fair trialLessens the ability of the judge to make an objective determination of the voluntariness of the pleaIs inconsistent with the theory behind the use of presentence investigation reportsMay induce an innocent defendant to plead guilty because he is afraid to reject the disposition desired by the judge
28 Plea-Bargaining (cont.) Victim’s RoleSome argue process is too “victim driven”Other argue the victims are relegated to a secondary role with no influenceVictims do not have a right to veto a plea bargainMost agree prosecutor should confer with the victim
29 Plea-Bargaining (cont.) Suggestions for ReformOversight of negotiationsGuidelines to identify suitable types of cases and offendersReview of prosecutor’s decisionsWritten documentation of need and acceptability for a plea bargain in any given case
30 Pretrial DiversionDesigned to remove case from formal criminal justice processAvoids stigma of convictionReduces costs to the systemAlleviates jail and prison overcrowdingDanger of “net-widening”Research indicates programs may result in reduced recidivism for some offenders