Chapter 2 Pretrial Release and Diversion

Pretrial Services Pretrial Services is a department with two overlapping functions: Assisting the court with release/detention decisions Supervising those persons conditionally released on bond The pretrial release decision is the defendant’s release from jail for the purpose of securing appearance at the next court proceeding Pretrial release allows the defendant to remain in the community and work as a productive citizen

History of Pretrial Release The Manhattan Bail Project began to assist judges in identifying defendants who could be released on their own recognizance Two decades later, more than 200 cities had adopted similar programs In 1984, the Federal Bail Reform Act added the safety of the public to the likelihood of appearance as a criteria for pretrial release Most pretrial programs are funded by counties and administered by probation offices

The Least Restrictive Option Most states use a quantitative point system to assess risk and need factors for the pretrial release system The federal system utilizes subjective assessment of risk of danger and nonappearance for each defendant Benefits of pretrial services include lower jail populations as well as allowing defendants to remain employed and assist in their own defense

The Least Restrictive Option, cont. The pretrial services officer assesses the defendant’s social and criminal history, but not the weight of the evidence in the pending charge The personal interview of each defendant by a pretrial services officer is recommended by the National Association of Pretrial Services Agencies Programs that interviewed defendants and used objective risk assessment instruments had less crowded jails

Types of Bonds Unsecured bond Release on recognizance Conditional release Surety bond Deposit bond Full cash bond Property/collateral bond

Characteristics of Pretrial Releasees A 2006 study revealed that individuals with no or only one misdemeanor conviction, employed, with some college education, more than 40 years old and female were more likely to be released on bond Person with mental illness were considered for release due to better service availability in the community

Pretrial Supervision Most state and federal felons released on bond have some sort of pretrial supervision Only 2 0f 10 defendants evaluated are recommended for supervision Defendants on supervision are typically required to call in weekly, comply with curfew, submit to drug testing, maintain employment and avoid contact with victims or witnesses Federal pretrial services officers supervise an average of 35 defendants and assist in the preparation of the presentence investigation report

Pretrial Supervision, cont. 89% of the first violations of minor release conditions result in a warning on the first occasion, while on a second violation 86% are reported to the court Serious violations result in the issuance of a bench warrant, detention or bail revocation Defendants on bond for murder, burglary and motor vehicle theft the most likely to commit new felonies, but more likely to appear for court dates

Failure to Appear Jurisdictions following up for failure to appear has decreased in recent years One of every four defendants were unsuccessfully terminated, usually for repeated non-appearance Almost half of all pretrial programs do not calculate FTA or rearrest rates

Reducing Failure to Appear 87% of pretrial programs reminded defendants of their upcoming court dates A Philadelphia experiment failed to demonstrate that varying degrees of notification and deterrence made a difference in FTA and rearrest Pretrial services officers submit a report to the sentencing court regarding the defendant’s compliance with bond conditions

Diversion Diversion is an alternative suspended sentence or deferred adjudication program that gives first-time offenders a chance to address specific issues, and can result in a dismissal of charges Treatment Alternatives to Street Crime and the Manhattan Court Employment project in the mid-1960’s were the first diversion programs Diversion attempts to avoid the negative aspects of incarceration while providing rehabilitation in the community Juvenile diversion programs seek to avoid “labeling”

Candidates for Diversion Diversion programs provide services for three types of individuals: 1. Youthful or first-time adult offenders and women, 2. Persons with special needs, such as mental illness, 3. Persons who require treatment for a problem, such as drug or alcohol abuse

Drug Courts Drug courts integrate outpatient substance abuse treatment with criminal justice case processing Charges are dismissed if the program is successfully completed Failure or withdrawal from the program results in charges for the original offense

Assumptions of Drug Courts First-time drug offenders or low-level drug users with a criminal record would be more likely to curb future drug use through treatment rather than punishment The sooner the treatment, the better the result The Judge, the prosecutor and the probation officer play a non-adversarial role

Gender and Drug Court Treatment Strategies Research indicates drug courts might not adequately address women or minorities Women and men have different reasons for why they abuse drugs, different drugs of use and different use patterns Michigan, California and New York have developed separate programs for men and women

Evaluations of Drug Courts Research varies as to whether drug courts save money, since noncompliance results in longer stays in jail The GAO found that completion and retention rates varied by program and were lower than expected Drug courts may not be applicable to all substance abusers

Mental Health Courts People with mental illness may appear more deviant than criminal Mental health courts began in 1997 as a means to deal with people who needed help more than punishment A team approach is used, consisting of a judge, a treatment provider and a pretrial services officer with special training

Criticisms of Diversion Programs If a participant fails to complete the program, the situation is unclear Evidence that may be inadmissible in court results in diversion proceedings Diversion programs may not be widely supported due to the unfamiliarity with the positive effects