Part Two of a Two-Part Series

By Zach Dal Pra

The first of this two-part series was posted on August 1st and examined money- and charge-based bail systems. In this follow-up blog, we look at the analyses jurisdictions should consider when seeking to revise their practices.  Jurisdictions contemplating revising how they decide which defendants to release pretrial and which to detain can find a description of key legal concepts to consider in “‘Model’ Bail Laws: Re-Drawing the Line Between Pretrial Release and Detention,” by criminal justice analyst Timothy R. Schnacke.

Among other things, Schnacke’s paper summarizes the legal history of bail in America and describes three analyses for assessing proposed revisions to decision-making processes about pretrial release.

One analysis, based on current law, could help jurisdictions understand whether changes they are considering will result in a bail process that holds up to legal scrutiny—namely, whether the proposed process is consistent with the Due Process, Excessive Bail, and Equal Protection clauses of the U.S. Constitution’s Fifth, Eighth, and Fourteenth amendments.

Schnacke raises the following questions about proposed processes related to pretrial release/detention decisions:

What should be the role of actuarial pretrial risk assessments when high-risk defendants are charged with relatively low-level crimes? Schnacke concludes that, for a jurisdiction to avoid legal jeopardy with respect to the Excessive Bail Clause, it should create a charge-based floor below which no detention should be sought. “Some defenses—perhaps misdemeanors or non-violent property offenses—are simply not serious enough to trigger the blunt hammer of detention no matter how risky some defendants may seem to be based on aggregate prediction,” he writes.

Does the bail process being considered treat similar people differently based on their wealth, which can be tied to race? If so, this opens the jurisdiction up to charges based on violations of the Equal Protection Clause. As Schnacke says, “jurisdictions must ensure that detention provisions calling for either detention or increased supervision for ‘dangerous’ defendants are not based on instruments capable of racial bias.”

Does the state have an intent to punish a group of defendants by detaining them before trial, even if they are not a flight risk or a danger to the public? To avoid this type of violation of the Due Process Clause, Schnacke says, jurisdictions “must constantly concern themselves with reducing, if not eliminating” the detention of people who do not need to be confined. Such detention constitutes punishment.

Under the bail process being considered, is the purpose of detention limited to preventing (1) crime by defendants, or (2) flight to avoid prosecution? Does the process focus on narrow problems in which the government has an overwhelming interest? Does it detain only people who have been arrested for extremely serious offenses? Does it require the state to demonstrate to a court that no release conditions can ensure public safety? “These are the most important elements of a lawful detention provision to survive substantive due process analysis,” Schnacke writes, noting that such a bail process includes justification for detention, a charge-based detention eligibility net, and a process designed to further limit that net to people who demonstrably are unmanageable in the community.

Schnacke goes on to propose his own model bail process that meets the criteria of this analysis, as well as two other analyses based on (1) fundamental principles related to American history, the law, research, and national standards for release/detention decisions, and (2) threshold requirements for predictive models, according to legal philosopher and theorist Andrew von Hirsch.

All three analyses could be helpful to jurisdictions seeking to revise their practices regarding a defendant’s eligibility for pretrial release.

About Timothy R. Schnacke

Timothy R. Schnacke is a leading thinker and writer on pretrial justice who currently serves as executive director of the Colorado-based Center for Legal and Evidence-Based Practices. He also is a consultant to the Pretrial Justice Institute. Schnacke’s previous papers include “Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform” and “Money as a Criminal Justice Stakeholder: The Judge’s Decision to Release or Detain a Defendant Pretrial,” both from 2014.


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