Part One of a Two-Part Series

By Zach Dal Pra

Increasingly, courts around the country are requiring local jurisdictions to justify their bail practices—i.e., to demonstrate that decisions about who they release and who they detain pretrial are informed by both the law and by current research on the behavior of released defendants. For jurisdictions considering revising their bail practices, criminal justice analyst Timothy R. Schnacke suggests a prototype bail process in “’Model’ Bail Laws: Re-Drawing the Line Between Pretrial Release and Detention.”

A new model for pretrial detention and release

Current money- and charge-based bail systems often detain people based on their ability to pay or on unfounded assumptions about their risk to public safety. Schnacke believes that these systems would best be replaced by a system based more on actual defendant behavior. In his paper, he documents how American legal history and current evidence argue for the release of all defendants except those who pose an extremely high and unmanageable risk of (1) committing a serious or violent offense while on pretrial release, or (2) willfully failing to appear for court in order to avoid prosecution.

Under Schnacke’s model, only defendants charged with violent crimes—either felonies or misdemeanors—would initially be detained pretrial. (This includes people charged with domestic violence.) Defendants not charged with a violent crime would be released, under supervision conditions informed by actuarial pretrial risk assessments such as the Colorado Pretrial Assessment Tool (CPAT) or Laura and John Arnold Foundation’s Public Safety Assessment (PSA).

Once released, pretrial defendants would subsequently be detained only if they committed a new crime or intentionally tried to avoid prosecution. In either case, instead of being automatically detained, the defendant would receive full due process protections, meaning that the court would first have to determine that the defendant’s failure to appear was willful or the risk to public safety is unmanageable.

“The only two constitutionally valid purposes for limiting pretrial freedom are court appearance and public safety,” Schnacke writes. Under his model, released defendants would not be detained for committing a minor transgression such as a traffic infraction, failing to appear in court because they missed the bus, or technical violations of their bond, such as not checking in with their pretrial officer.

Erring on the side of public safety? Or liberty?

Schnacke acknowledges that it is a balancing act to satisfy all of the basic (and sometimes competing) purposes of bail systems: to simultaneously maximize public safety, court appearance, and defendant release. For jurisdictions concerned that releasing defendants charged with serious but not violent crimes would pose a risk to the public, he points to research showing that defendants generally are not as risky as we often assume they are. He also cites the high number of people being detained who demonstrably are not a risk to the public. Which side should we err on, he asks. Public safety or personal freedom and liberty?

Frameworks for assessing any bail reform effort

Schnacke’s model bail process is just one possibility. He also recommends three analyses for assessing any proposed method of “redrawing the line between release and detention.” In describing these analyses, Schnacke summarizes legal concepts important to consider in any bail reform effort, such as due process, excessive bail, and equal protection.

Whether Schnacke’s model bail process is appealing or not, any jurisdiction contemplating revising its process for making detention/release decisions would do well to review Schnacke’s paper before deciding on the principles on which it will base its revisions.

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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