GLOSSARY OF TERMS AND PHRASES RELATING TO BAIL AND THE PRETRIAL RELEASE OR DETENTION DECISION Copyright © 2015 by the Pretrial Justice Institute. All rights reserved. Gaithersburg, MD

Updated July 2015 3

Introduction The complicated nature of various terms and usage that they seem correct even when they phrases relating to bail and pretrial release are misused. For example, the terms “pretrial” or detention can sometimes lead to confusion and “pretrial services” are sometimes used as and misuse of those terms. That, in turn, may short-hand nouns referring to pretrial services lead to unnecessary quibbling and distraction agencies or programs (e.g., “Pretrial wants to from fundamental issues in the administra- eliminate commercial bail bonding.”), instead tion of bail and pretrial justice. Some of this of their proper use as (1) a period of time, and confusion and misuse is quite understand- (2) the actual services provided by the pretrial able. For example, in his Dictionary of Modern services agency or program. Legal Usage, Bryan Garner describes the term “bail” as “a chameleon-hued legal term,” with These predominantly legal terms are difficult strikingly different meanings depending on its enough without any layer of confusion and overall use as either a noun or a verb.1 A term misuse. Accordingly, this glossary of terms and like “habeas corpus,” as another example, has phrases has been written to provide current little meaning to one not fully immersed in the definitions, in context, and with historical legal waters of the American system of justice. references as needed, to clarify a comprehen- How does one sum up a concept like habeas sive set of common terms relating to bail and corpus, when, as the online company Twitter the pretrial release and detention decision. said when explaining its own service in March The authors hope that the glossary will be of 2010, “it’s a whole thing?” used to find consensus on common terms and phrases to avoid needless distractions from the Misuse of terms can be caused by simple lack of important work of making the administration education. That “bail” is used primarily to refer of bail more effective. References to Black’s to amounts of money is likely due only to a lack Law Dictionary (or “Black’s”) are to the Ninth of education for not only the public and the Edition.2 press, but also for some criminal justice prac- titioners. Other terms are often so ingrained in

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Adversary System emphasis on this sometimes riveting recitation of “facts” and to the charge filed, to the exclu- Black’s calls it “[a] procedural system, such as sion of other relevant factors used to assess the Anglo American Legal System, involving risk of flight and to public safety. active and unhindered parties contesting with each other to put forth a case before an independent decision maker.” According to American Bar Association (“ABA”) Michael Asimow, “[t]he central precept of the Criminal Justice Standards adversary system is that the sharp clash of The American Bar Association is the 400,000- proofs presented by opposing lawyers, both plus member national association for the legal zealously representing the interests of their profession and those interested in the legal clients, generates the information upon which profession. In 1964, the ABA implemented its a neutral and passive decision maker can “Criminal Justice Standards Project,” which most justly resolve a dispute.”3 It is typically has created and updated best practice stan- contrasted with the inquisitorial system of dards on twenty-three areas in criminal justice. justice, in which the judge controls most of the The Third Edition of the ABA’s Standards pretrial and trial procedures, including framing on Pretrial Release (black letter standards the issues, supervising criminal investigations approved in 2002, commentary approved in and discovery, questioning and cross-exam- 2007) are based on empirically sound social ining witnesses, and summarizing evidence. science research, as well as on fundamental Understanding the adversary system’s impor- legal principles, and have been used by courts, tance at bail is critical, for initiation of adver- legislatures, scholars, and others interested in sary proceedings triggers certain rights, such best practices in the field of pretrial justice. as the right to counsel. In practice, judges comfortable operating in a system in which Appearance Bond they are to oversee two sides in the adversarial see Bail Bond clash of proofs often find that the typical bail hearing is overwhelmingly lopsided, many times operating with no defense counsel, and Appearance Rate instead proceeding with defendants who are see Court Appearance Rate unprepared to argue issues concerning their pretrial release. The adversary system presup- Arraignment poses somewhat equal adversarial opponents, but bail hearings often lack that equality. A criminal proceeding at which the defendant is read the charge or charges and asked to Affidavit enter a plea. The essence of the arraignment is the act of pleading (e.g., guilty, not guilty, no A voluntary declaration of facts written down contest) to the formal charge or charges, and and sworn to by the declarant before an officer although an arraignment may be continued or authorized to administer oaths (Black’s). postponed, its goal is to obtain the defendant’s Among other things, affidavits are drafted to plea. The term is sometimes incorrectly used obtain search warrants and to document an to mean the defendant’s “first appearance” officer’s probable cause for making a warrant- or “initial appearance,” but the arraignment less arrest. In the administration of bail, some needn’t be the first appearance. As correctly persons may be tempted to place a greater noted in Black’s and other sources, the law

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regarding arraignments varies from jurisdic- believe that money motivates human action, tion to jurisdiction, and is typically explained and in most state statutes, money amounts are by court rules or statutes governing those forfeited for failure to appear), to date money jurisdictions. has never been empirically related to it – that is, no studies have shown that money works as Arrest Warrant an added incentive to appear for court. Third, the purpose of bail itself has changed over the see Warrant past 100 years from reasonably assuring only court appearance to also reasonably assuring Bail public safety, and research has demonstrated In criminal law, bail is the process of releasing that money is in no way related to keeping a defendant from jail or other governmental people safe. Indeed, this notion is reflected in custody with conditions set to reasonably most state statutes, which routinely disallow assure public safety and court appearance. the forfeiture of money for breaches in public “Bail” is perhaps one of the most misused terms safety. Fourth, money bail does not reflect in the field, primarily because bail has grown the criminal justice trend, since the 1960s, from the process of delivering the defendant to to make use of own recognizance or personal someone else, who would personally stand in recognizance bonds with no secured financial for the accused if he or she did not appear for conditions. And finally, in most jurisdictions court, to presently being largely equated with monetary conditions of release have been sums of money. It is now clear that, whatever overshadowed by the numerous nonfinancial pure system of “standing in” for a particular conditions designed to further bail’s overall defendant to face the consequences of non- purpose to provide a process for release while appearance in court may have existed in the reasonably assuring court appearance and early Middle Ages, that system was quickly public safety. replaced with paying for that non-appearance first with goods (because standardized coin Garner has correctly noted the multiple defini- money remained relatively rare in Anglo Saxon tions of bail that have evolved over time, most Britain until the Eighth and Ninth Centu- of which presuppose some security in the form ries) and later money. The encroachment of of money.4 For example, besides being defined money into the process of bail has since been as the security agreed upon, bail was also once unrelenting. And, unfortunately to this day, defined as a person who acts as a surety for a the terms “money” and “bail” have also been debt, and was often used in sentences such as, joined in an unholy linguistic alliance. “The bail is supposed to have custody of the defendant.”5 However, because much has been This coupling of money and bail is troubling for learned over the last century about money at several reasons. First, while money bail may bail (including its deleterious effect on the have made sense in the Anglo Saxon criminal concept of pretrial justice), and because the justice system – comprised of monetary penal- very purpose of bail has also changed to include ties for nearly all bailable offenses – the logic notions of public safety in addition to court eroded once those monetary penalties were appearance (preceding a new era of release largely replaced with corporal punishment and on nonfinancial conditions), defining the term imprisonment. Second, while perhaps logi- “bail” as an amount of money, as many state cally related to court appearance (many people legislatures, criminal justice practitioners,

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newspapers, and members of the public do, is pledge or a promise, which can include release flawed. Thus, a new definition of the term is without money),10 have enacted statutory defi- warranted. nitions to recognize bail as something more than simply money. Moreover, some states, Bail as a process of release is the only defini- such as Alaska,11a Florida,11b Connecticut,11c tion that: (1) effectuates American notions of and Wisconsin,11d have constitutions explicitly liberty from even colonial times; (2) acknowl- incorporating the word “release” into their edges the rationales for state deviations from right to bail provisions. more stringent English laws in crafting their constitutions (and the federal government in The phrase “or other governmental custody” crafting the Northwest Territory Ordinance of is added in recognition of the fact that bail, 1787); and (3) naturally follows from various as a process of releasing a defendant prior to statements equating bail with release from the trial, includes various mechanisms occurring United States Supreme Court from the late at various times to effectuate that release, for 1800s to 1951 (in Stack v. Boyle, the Supreme example, through station house release from a Court wrote that, “federal law has unequiv- local police department. The term “with condi- ocally provided that a person arrested for a tions” is added with the understanding that non-capital offense shall be admitted to bail. by changing the status of an individual from This traditional right to freedom before convic- citizen to defendant in a court proceeding, each tion permits the unhampered preparation of a release of any particular defendant contains defense, and serves to prevent the infliction at least one condition – attendance at trial – of punishment prior to conviction”)6 and to and typically more to reasonably assure court 1987 (in United States v. Salerno, the Supreme appearance as well as public safety. Court wrote that, “In our society liberty is the norm, and detention prior to trial or without Bail Bond 7 trial is the carefully limited exception.”). An agreement between the defendant and the court, or between the defendant, the surety Bail as release accords not only with history (commercial or noncommercial surety), and and the law, but also with scholar’s definitions the court, originally designed primarily to (in 1927, Beeley defined bail as the release of assure the defendant’s appearance in court and a person from custody), the federal govern- later expanded in the federal system and most ment’s usage (calling bail a process in at least states to include public safety protections. one document), and use by organizations such Bail bonds are sometimes called “appear- as the American Bar Association, which has ance bonds,” as all bail bonds are minimally quoted Black’s Law Dictionary definition of appearance bonds, but that term does not fully bail as a “process by which a person is released reflect the purpose of bail, which is to normally from custody.”8 States with older (and likely afford release while reasonably assuring court outdated) bail statutes often still equate bail appearance and public safety. with money, but many states with newer provi- sions, such as Virginia (which defines bail as Black’s Law Dictionary defines “bond” gener- “the pretrial release of a person from custody ally as an obligation or a promise, and “bail upon those terms and conditions specified by bond” as “[a] bond given to the court by a order of an appropriate judicial officer”),9 and criminal defendant’s surety to guarantee that Colorado (which defines bail as security like a the defendant will duly appear in court in the

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future and, if the defendant is jailed, to obtain is returned after the disposition of the case, the defendant’s release from confinement. but the court often retains a small portion The effect of release on bail bond is to transfer for administrative costs. If the defendant custody of the defendant from the officers of fails to appear in court, he or she is liable the law to the custody of the surety on the to the court for the full [money] bail [bond] bail bond, whose undertaking is to redeliver amount. the defendant to legal custody at the time and place appointed in the bond.” A broader defini- Full cash bond – The defendant posts the tion, however, correctly takes into account the full [money] bail [bond] amount in cash fact that many defendants are released without with the court. If the defendant makes all third party sureties, and recognizes the dual court appearances, the cash is returned. If purpose of bail. the defendant fails to appear in court, the bond is forfeited. In the law there are numerous types of bonds, and specifically several different types of “bail Property bond – Involves an agreement bonds,” all of which fall under one of two made by a defendant as a condition of categories of pretrial release from custody or pretrial release requiring that property confinement: (1) those that require a secured valued at the full [money] bail [bond] financial condition of release; and (2) those amount be posted as an assurance of his or that do not.12 The United States Department her appearance in court. If the defendant of Justice, Bureau of Justice Statistics (“BJS”), fails to appear in court, the property is provides the following categories and explana- forfeited. Also known as ‘collateral bond.’13 tions of financial bonds that require immediate payment or secured guarantee of payment BJS also provides the following categories of prior to a defendant’s release from detention: bonds that do not require immediate payment [Compensated] Surety bond – A bail or guarantee of payment prior to a defendant’s bond company signs a promissory note to release from detention: the court for the full [money] bail [bond] amount and charges the defendant a fee Release on recognizance (ROR) – The for the service (usually 10% [or more] of court releases some defendants on a signed the full [money] bail [bond] amount). If agreement that they will appear in court the defendant fails to appear, the bond as required … [which] includes citation company is liable to the court for the full releases in which arrestees are released [money] bail [bond] amount. Frequently pending their first court appearance on a the [money bail] bond company requires written order issued by law enforcement collateral from the defendant [or friend or or jail personnel. [In many jurisdictions, a relative of the defendant for the full amount ROR (also known as “Own Recognizance,” of the bail bond] in addition to the fee. “Personal Recognizance,” or “PR”) bond may also be an unsecured financial bond if Deposit bond – The defendant deposits it has money attached]. a percentage (usually 10%) of the full [money] bail [bond] amount with the court. Unsecured bond – The defendant pays no The percentage of the [money] bail [bond] money to the court but is liable for the full

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amount of [the money] bail [bond] upon Act contained the following provisions: (1) a failure to appear in court. presumption in favor of releasing non-capital defendants on their own recognizance; (2) Conditional release – Defendants are conditional pretrial release with conditions released under specified conditions. A imposed to reduce the risk of failure to appear; pretrial services agency usually conducts (3) restrictions on money bail bonds, which monitoring or supervision, if ordered the court could impose only if nonfinancial for a defendant. In some cases, such as release options were not enough to assure a those involving a third-party custodian or defendant’s appearance; (4) a deposit money drug monitoring and treatment, another bail bond option, allowing defendants to post agency may be involved in the supervi- a 10% deposit of the money bail bond amount sion of the defendant. Conditional release with the court in lieu of the full monetary sometimes includes an unsecured bond.14 amount of a surety bond; and (5) review of bail There is growing recognition that “typing” bonds for defendants detained for 24 hours or bail bonds based on a single condition of more.15 After passage of this Act, many states release – money, such as when labeling a passed similar laws. bail bond a “surety bond” or a “cash bond” – is an archaic practice, and thus the better Bail Reform Act of 1984 practice (as reflected in the ABA Standards) The Act that amended the 1966 Bail Reform is to refer either to “release” or “detention,” Act to include danger to the community, or with release having one or more conditions public safety, as a consideration in the pretrial –financial or non-financial – as limitations release and detention decision. The 1984 Act on pretrial freedom. mandates “pretrial release of the person on personal recognizance, or upon execution of Bail Bondsman an unsecured appearance bond in an amount Also known as a commercial or compensated specified by the court . . . unless the judicial surety, a bail bondsman is one who guarantees officer determines that such release will not a defendant’s appearance for court by prom- reasonably assure the appearance of the person ising to pay a financial condition of bond if as required or will endanger the safety of any 16 the defendant does not appear for court. Bail other person or the community.” The Act bondsmen are typically licensed by the state further provides that if, after a hearing, “the and have an appointment from an insurance judicial officer finds that no condition or combi- company to act as such. For their services, bail nation of conditions will reasonably assure the bondsmen charge defendants a non-refund- appearance of the person as required and the able fee, and usually require the defendant (or safety of any other person and the community, his or her friends or family) to collateralize such judicial officer shall order the detention 17 the full amount of the financial condition with of the person before trial.” The Act creates a cash or property. rebuttable presumption toward confinement when the person has committed certain delin- eated offenses, such as crimes of violence or Bail Reform Act of 1966 serious drug crimes.18 The preventive deten- The first major reform of the federal bail tion provisions of the 1984 Act were upheld system since the Judiciary Act of 1789, which as constitutional in United States v. Salerno.19 established the federal judiciary. The 1966 See Salerno

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Bail Schedule right to bail via the Excessive Bail Clause in the federal system, written just four months after see Money Bail Bond Schedule Stack v. Boyle. In Carlson, the Court wrote:

Bench Warrant The bail clause was lifted with slight see Warrant changes from the English Bill of Rights Act. In England that clause has never been Bounty Hunter thought to accord a right to bail in all cases, Also known as a “bail recovery agent,” “fugi- but merely to provide that bail shall not be tive recovery agent,” and other similar terms, excessive in those cases where it is proper a bounty hunter is one who seeks to capture to grant bail. When this clause was carried wanted persons for the reward (bounty) over into our Bill of Rights, nothing was offered for the capture. Taylor v. Taintor, 83 said that indicated any different concept. U.S. 366 (1872), is commonly cited as the The Eighth Amendment has not prevented authority for persons to act as bounty hunters Congress from defining the classes of in the administration of bail. Bounty hunters cases in which bail shall be allowed in this were thought to be an essential ingredient to country. Thus in criminal cases bail is not bail administered through a personal surety compulsory where the punishment may system, which placed enormous responsibility be death. Indeed, the very language of the on sureties but did not allow them to profit Amendment fails to say all arrests must be from or be indemnified through the bail trans- bailable.20 action. With the advent of the commercial bail system in about 1900, however, the need for Citation the bounty hunter function has grown increas- According to Black’s, a citation is (1) a “court ingly dubious. Indeed, given the widespread ordered writ that commands a person to capability of traditional law enforcement and appear at a certain time and place to do some- the tendency for bail bondsmen to collateralize thing demanded in the writ; (2) A police issued the full amount of bail bonds (thus obviating order to appear before a judge on a given the need to “track someone down” to avoid date to defend against a stated charge, such payment), there is substantial debate over the as a traffic violation.” The second definition continued need for the bounty hunter profes- seems to reflect more common usage. Cita- sion. tion release is a large but often ignored part of pretrial justice, which involves a host of deci- Capias sions that occur from arrest until case disposi- From the Latin for “that you take,” a capias is tion, including whether to release an arrestee the general name for several types of writs, the with a citation versus taking that person to jail. common characteristic of which is that they Despite the fact that pretrial release has not require the officer to take a defendant into been historically viewed as a police function, custody (Black’s). through their discretionary decision-making ability to issue citations in lieu of arrests in certain cases, “the police are often in the best Carlson v. Landon position to provide for the speedy release of 342 U.S. 524 (1952). The United States criminal defendants.”21 Pretrial literature now Supreme Court case clarifying the concept of a typically discusses citation release under the

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topic of “delegated release authority,” which and past employment, criminal record, includes release of defendants prior to their and any other facts relevant to appearance first appearance by field officers and jail staff, in response to a citation.26 in addition to pretrial services program staff. Citations are also sometimes called “desk Following the principle of releasing defen- appearance tickets,” and are most used when dants under the least restrictive conditions, the risk to public safety and for failure to the American Bar Association Criminal Justice appear for court are perceived as low. Standards on Pretrial Release “favor use of citations by police . . . in lieu of arrest at stages Collateral prior to the first judicial appearance in cases involving minor offenses.”22 In Part II of the Generally, collateral is property that is pledged ABA Standards, “Release by Law Enforcement as security against a debt (Black’s). Specifi- Officer Acting Without an Arrest Warrant,” cally, collateral in the administration of bail Standard 10-2.1 states that “[i]t should be is typically a deposit of money or property to the policy of every law enforcement agency to protect a commercial bail bondsman from loss issue citations in lieu of arrest or continued if a defendant fails to appear for court. It can custody to the maximum extent consistent come from the defendant, but often comes with the effective enforcement of the law. This from friends and family of the defendant. policy should be implemented by statutes of statewide applicability.”23 Commentary to that Commercial Surety or Compensated standard explains that “emphasis on citation Surety release (as well as ‘stationhouse’ release) was a see Bail Bondsman logical extension of bail reform presumptions favoring pretrial release and release under least restrictive alternatives as well as encour- Condition aging diversion from the justice system alto- A future and uncertain event on which the gether.”24 ABA Standard 10-2.2 recommends existence or extent of an obligation or liability mandatory issuance of citation for minor depends; an uncertain act or event that trig- offenses, and would require law enforcement gers or negates a duty to render a promised agencies to document in writing the reasons performance (Black’s). In the administration for choosing to take a suspect into custody at a of bail, conditions are requirements that must secure facility on a minor offense.25 Moreover, be met to avoid certain consequences. Pretrial Standard 10-2.3 recommends that, release often hinges on defendants promising to follow certain conditions of release, which [e]ach law enforcement agency should are set to further the constitutionally valid promulgate regulations designed to purposes for limiting pretrial freedom (i.e., increase the use of citations to the greatest to reasonably assure court appearance and degree consistent with public safety. public safety). Among many other delineations Except when arrest or continued custody is in the law, these conditions may be precedent necessary, the regulations should require and subsequent. Most bail bond conditions such inquiry as is practicable into the are conditions subsequent – that is, release is accused’s place and length of residence, obtained, but if the condition occurs (or fails to family relationships, references, present occur, depending on its wording), it will trigger

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some consequence, and sometimes bring mining how many persons in a group appeared pretrial freedom to an end. Money at bail is the for all court events, or at the court event level, quintessential, and typically the only condition by determining what percentage of court precedent. Unlike other conditions, some or all events were attended by any person or group of a financial condition often must be paid first of persons. See Pretrial Release Outcomes in order to initially obtain release. Criminal History Consent of Surety Also known as a criminal record, it is a compi- Primarily used with commercial bail lation of criminal offenses associated with a bondsmen, consent of surety refers to a written particular individual. Criminal histories can be document from the bondsman agreeing to powerful documents in the administration of remain as surety despite good cause for a bail bail, so great caution is urged in compiling and bond to be revoked. interpreting them.

Contempt Defendant Black’s defines criminal contempt as “[a]n The accused in a criminal proceeding. act that obstructs justice or attacks the integ- rity of the court.” Generally speaking, a court can declare a defendant to be in contempt for Delegated Release Authority any number of disruptive acts that interfere The entrusting – to law enforcement, or in with the administration of justice, including some places, a pretrial services agency or violating a formal court order. Contempt of program – of judicial authority to release an court may occur directly (committed in the arrested person before his or her first court immediate vicinity of the court) or indirectly appearance. (committed outside of court). Diversion Co-signor According to the National Association of Pretrial A person, separate from and in addition to the Services Agencies’ Performance Standards defendant, who guarantees compliance with a and Goals for Pretrial Diversion/Intervention, bail bond. Despite having a parallel function pretrial diversion/intervention is “a voluntary to that of a commercial surety, the term co-si- option which provides alternative criminal gnor has grown in use primarily to refer to an case processing for a defendant charged with uncompensated surety who guarantees only a crime that ideally, upon successful comple- the financial condition of release. See Surety tion of an individualized program plan, results in a dismissal of the charge(s).” The purpose Court Appearance Rate of such a program is to “enhance justice and A more representative way of expressing the public safety through addressing the root court appearance outcome by focusing on the cause of the arrest provoking behaviors of the more frequent number of court appearances, defendant, reducing the stigma which accom- instead of the typically much lower number of panies a record of conviction, restoring victims failures to appear (“FTA”) for court. This rate and assisting with the conservation of court may be calculated at the person level, by deter- and criminal justice resources.”27 The Pretrial

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Justice Institute’s website contains links to a the undesirable practices associated with variety of publications related to this topic.28 commercial bail bonding. It also drains supervisory resources from often under- Double Supervision or “Doubling Up” staffed and overworked pretrial services agencies, making it more difficult to super- The practice of setting a commercial surety vise the defendants for whom they prop- bond along with professional pretrial agency erly have responsibility.30 or program supervision. The National Associ- ation of Pretrial Services Agencies Standards The American Bar Association at one time had on Pretrial Release recommend not using this a position on “double supervision” in its Stan- practice of “doubling-up” supervision: dards for Pretrial Release, but it has since has removed it “so as to leave no doubt as to the [p]ending abolition of compensated sure- imperative nature of the recommendation that ties, jurisdictions should ensure that [commercial sureties] be abolished.”31 responsibility for supervision of defendants released on bond posted by a compensated surety lies with the surety. A judicial officer Due Process should not direct a pretrial services agency Refers generally to protecting individuals to provide supervision or other services from arbitrary or unfair federal or state action for a defendant released on surety bond. pursuant to the rights afforded by the Fifth and No defendant released under conditions Fourteenth Amendments of the United States providing for supervision by the pretrial Constitution (and similar state provisions). As services agency should be required to have noted by the Supreme Court inUnited States v. bail posted by a compensated surety.29 Salerno, due process is further broken down into two subcategories: Commentary to that Standard provides the following reasoning: So called ‘substantive due process’ prevents the government from engaging in conduct [o]ther provisions of the Standards empha- that ‘shocks the conscience,’ or interferes size that financial bail should be used only with rights ‘implicit in the concept of if other conditions are insufficient to mini- ordered liberty.’ When government action mize the risk of nonappearance, and that, if depriving a person of life, liberty, or prop- [secured] financial conditions are imposed, erty survives substantive due process scru- the bail amount should be posted with the tiny, it must still be implemented in a fair court under procedures that allow for the manner. This requirement has tradition- return of the amount of the bond if the ally been referred to as ‘procedural’ due defendant makes required court appear- process.32 ances. There is no reason to require defen- dants to support bail bondsmen in order to In the administration of bail, due process obtain release (and to pay the bondsman a considerations include fundamental fairness fee that is not refundable even if they are arguments that high money bail bonds lead ultimately cleared of the charges), and to defendants being unfairly punished prior the practice of [simultaneously] providing to trial, as well as concerns that high money for supervision by the pretrial services bonds and the resulting detention affects the agency simply encourages perpetuation of fairness of a defendant’s trial and the ultimate

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disposition of the case. When financial condi- mental fairness arguments that high money tions of release result in a defendant’s pretrial bail bonds lead to defendants being unfairly detention without the type of hearing envi- punished before trial, as well as concerns that sioned by the U.S. Supreme Court in Salerno, a high money bonds and detention affects the procedural due process claim might also prove fairness of a defendant’s trial and the ultimate successful. disposition of the case), many scholars have argued that equal protection considerations Eighth Amendment should serve as an equally compelling basis for fair treatment in the administration of Typically refers to the Eighth Amendment to bail, especially when considering the disparate the United States Constitution, which states impact of money bail bonds on defendants due that “Excessive bail shall not be required, nor only to their level of income.33 excessive fines imposed, nor cruel and unusual punishments inflicted.” See Excessive Bail Over the years, this argument has been bolstered by language from Supreme Court Emergency Release opinions in cases like Griffin v. Illinois, which dealt with a defendant’s ability to purchase a As it relates to the field of bail and pretrial transcript required for appellate review. In release, it is the release of any prisoner due that case, Justice Black stated that, “[t]here to an emergency situation, such as (and typi- can be no equal justice where the kind of trial cally) jail crowding. As a jail’s percentage of a man gets depends on the amount of money pretrial inmates rises, that jail’s overall popu- he has.”34 Moreover, sitting as circuit justice to lation can rise above its operational capacity. decide a prisoner’s release in two cases, Justice Because many jurisdictions are uneasy with Douglas uttered the following dicta frequently making policy changes affecting the pretrial cited as support for equal protection analysis: population, one sometimes sees jails releasing (1) “Can an indigent be denied freedom, where convicted inmates early, often pursuant to a wealthy man would not, because he does not elaborate emergency release schemes designed happen to have enough property to pledge for to comfort the public. At the extreme, emer- his freedom?”;35 and (2) “[N]o man should be gency releases are a response to a court order to denied release because of indigence. Instead, reduce a jail’s population, but some programs under our constitutional system, a man is enti- are voluntary to remain within agreed-upon tled to be released on ‘personal recognizance’ caps based on budgetary or other reasons. where other relevant factors make it reason- Emergency releases are relatively rare, but able to believe that he will comply with the represent a significant and often well-publi- orders of the Court.”36 Overall, despite schol- cized failure to manage a jail’s population. arly arguments to invoke Equal Protection Clause analysis to the issue of bail, the federal Equal Protection courts have not been inclined to do so. Refers generally to protecting individuals from laws that treat people unequally pursuant to Excessive Bail the right guaranteed by the Fourteenth Amend- A legal term of art used to describe bail that ment of the United States Constitution (and is unconstitutional pursuant to the Eighth similar state provisions). In addition to consid- Amendment to the United States Constitu- erations of due process (which include funda- tion (or similar state provisions). The Eighth

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Amendment states that, “Excessive bail shall whether bail conditions are excessive for the not be required, nor excessive fines imposed, purpose of achieving those interests. The state nor cruel and unusual punishments inflicted.” may not set bail to achieve invalid interests The Excessive Bail Clause derives from reforms [flight and public safety are valid; at least one made by the English Parliament in the 1600s federal court has held that the state’s interest to curb the abuse of judges setting impos- in setting bail at a level designed to prevent the sibly high money bail to thwart the purpose arrestee from posting it is invalid, see Wagen- of bail to afford a process of pretrial release. mann v. Adams, 829 F.2d 196, 211-14 (1st Cir. The English Bill of Rights of 1689 first used the 1987), and bail as punishment would also phrase, “Excessive bail ought not be required,” undoubtedly be an invalid state interest], nor which was incorporated into the 1776 Virginia in an amount that is excessive in relation to the Declaration of rights, and ultimately found its valid interests it seeks to achieve.”38 way into the United States and many other state constitutions. The law of Stack v. Boyle is still strong: when the state’s interest is assuring the presence of Excessiveness must be determined by looking the accused, “[b]ail set at a figure higher than both at federal and state law, but a rule of an amount reasonably calculated to fulfill thumb is that term relates overall to reason- this purpose is ‘excessive’ under the Eighth ableness. In United States v. Salerno, the Court Amendment.”39 Nevertheless, as the language stated as follows: in Salerno indicates, financial conditions (i.e., amounts of money) are not the only condi- The only arguable substantive limitation tions vulnerable to an excessive bail claim. of the Bail Clause is that the Government’s Any unreasonable condition of release (e.g., a proposed conditions of release or detention nonfinancial condition having no relationship not be ‘excessive’ in light of the perceived to reducing or ameliorating an identified risk, evil. Of course, to determine whether the or that exceeds what is needed to assure the Government’s response is excessive, we constitutionally valid state interest) might be must compare that response against the deemed constitutionally excessive.40 interest the Government seeks to protect by means of that response. Thus, when Exoneration the Government has admitted that its only interest is in preventing flight, bail must be Exoneration generally is the removal of a set by a court at a sum designed to ensure responsibility. In the administration of bail that goal, and no more. Stack v. Boyle, and the pretrial process, it is a term of art refer- supra. We believe that when Congress ring to one being released from liability on a has mandated detention on the basis of a bail bond upon the successful satisfaction of compelling interest other than prevention all conditions of the bond, upon payment of a of flight, as it has here, the Eighth Amend- forfeiture of the bond, or upon the occurrence ment does not require release on bail.37 of any other statutorily enumerated justifica- tion, such as the death of the defendant, the Thus, to determine excessiveness, one must surrender of the defendant into custody before “look to the valid state interests bail is intended the forfeiture process is complete, or deficien- to serve for a particular individual and judge cies in the process affecting a surety’s liability.

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Failure to Appear (FTA) courts combined a probable cause determina- tion with charge recitation and bail setting.41 The phrase typically used when a defendant or The relevant statute typically requires such a witness under subpoena does not show up for hearing “without unreasonable delay,” causing a scheduled court appearance. It is understood some practical variation, and usually includes to carry with it some penalty for the failure, an advisement of defendant rights, a recitation such as the issuance of a bench warrant. It has of charges, and bail bond setting. Also called an sometimes been defined as a “willful” absence “initial appearance.” See also Presentment from a court appointment, but research and experience has shown that FTAs needn’t be willful to nonetheless occur. Forfeiture To forfeit something generally in the law Failure to Appear Rate means to lose the right to money or property based on the breach of a legal obligation. In the see Court Appearance Rate administration of bail and the pretrial process, forfeiture refers to the procedure in which a Felony court orders that the money paid up-front be A serious crime usually punishable by impris- retained by the court or that a surety pay the onment for more than one year or by death security pledged to the court when a defendant (Black’s). Also called “major” or “serious” fails to fulfill the requirements of a bail bond. It crimes. What is and is not considered a felony is often used in relation to the bond agreement (and whether it is even called a felony) differs between a court, the defendant, and a commer- among jurisdictions, and the lines of demar- cial surety (bail bondsman), with numerous cation between less-serious felonies and complicated statutory provisions governing more-serious misdemeanors are often blurred, the forfeiture procedure.42 so reference to each state’s sometimes complex criminal code is necessary to determine the Habeas Corpus precise definition. When reporting crime statistics, many entities (including the Federal From the Latin, “that you have the body,” the Bureau of Investigation) categorize offenses term is short for habeas corpus ad subjici- using other classifications, such as “violent” endum, which means “that you have the body and “property” offenses. to submit to,” and long for “habeas,” as in “the defendant filed his habeas petition today.” The term “habeas corpus” actually precedes First Appearance any number of writs designed to bring a The court proceeding in which a criminal person from one place to another, typically defendant is first brought before a judge, court. The most frequently used and referred either physically or through some electronic to (ad subjiciendum) is directed to someone transmission. The laws concerning first detaining another person and commanding appearances vary among the states, and can that the detained person be brought to court, have different names. For example, in Roth- typically to ensure that the person’s impris- gery v. Gillespie County, the case dealing with onment is not illegal. It is one means avail- the Sixth Amendment right to counsel at the able for defendants to obtain judicial review of initial appearance, that appearance was called the right to bail, or the amount of a financial an “article 15.17 hearing,” in which the Texas condition of a bail bond. To Garner, the term

GLOSSARY OF TERMS 13

habeas corpus “is the quintessential Latinism Like “bail,” habeas corpus is a process, impli- that has taken on a peculiar meaning so that no cating a unique legal procedure and body of homegrown English term could now supply.”43 legal precedent.

It is often referred to as the “Great Writ,” Immigration and Customs in recognition of its importance among all Enforcement (“ICE”) other writs, and has been described by the United States Supreme Court as “the funda- The principal investigative arm of the United mental instrument for safeguarding individual States Department of Homeland Security, freedom against arbitrary and lawless state created in 2003 by merging parts of the United action.”44 As Justice Stevens once wrote, “[t] States Customs Service and the Immigration he great writ of habeas corpus has been for and Naturalization Service. In some jurisdic- centuries esteemed the best and only sufficient tions, ICE places immigration holds on defen- defence of personal freedom. Its history and dants that can affect their perceived risk and function in our legal system and the unavail- thus their pretrial status. ability of the writ in totalitarian societies are naturally enough regarded as one of the deci- Incarceration sively differentiating factors between our According to Black’s, it is the act or process 45 democracy and totalitarian governments.” of confining someone. By most estimates, the United States has the highest number of Habeas corpus derives from the famous 1676 inmates and the highest incarceration rate in English case of an individual known only as the world, with China (number of inmates) and Jenkes, who was held for two months on a Russia (incarceration rate) coming in second. charge that, pursuant to statute, required admittance to bail. Jenkes’ case, and cases like it, ultimately led to Parliament’s passage of the Incarcerated Population Habeas Corpus Act of 1679, which established Also known at the local level as the jail popula- procedures to prevent long delays before a bail tion, the incarcerated population is the number hearing was held. The United States explicitly persons held in one or more detention facili- incorporated the right of habeas corpus into ties. Jail population dynamics are important the Constitution in Article 1, Section 9, which to understand when dealing with policies and reads, “[t]he privilege of the writ of habeas procedures that affect that population, such corpus shall not be suspended, unless when, as those surrounding bail and pretrial release. in cases of rebellion or invasion, the public A typical jail is akin to a water barrel, which safety may require it.” The first Judiciary Act has an overall amount of liquid based on how provided habeas corpus for federal prisoners, much water is put into it, and how long that and in 1867 Congress expanded the process to water stays inside the barrel until it is let out. allow federal courts to grant writs of habeas Like the water barrel, the average daily jail corpus in all cases, including state cases, where population is determined by bookings (inflow) any person may be restrained in violation of and length of stay (outflow). Thus, in addition the Constitution or U.S. law or treaty. Each to variations in bookings, various jail subpop- state typically also has its own habeas right and ulations can drive the average daily popula- procedure, which is often incorporated into an tion based on their lengths of stay, and these overall postconviction remedy provision. lengths of stay, in turn, are affected by local

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policies and procedures. As it pertains to bail Integrity of the Judicial Process and pretrial release, the Bureau of Justice A term of art in the field of bail and pretrial Statistics reports that jail populations peaked release that often sums up a number of vari- in 2008, but have been declining since then. ables typically related to risk to court appear- Nevertheless, approximately two thirds of the ance and public safety. The phrase has inmates housed in our nation’s jails are pretrial sometimes been used as a label for a third detainees, and the use of secured money at bail constitutionally valid purpose for limiting has increased the lengths of stay of pretrial pretrial freedom beyond court appearance and inmates. public safety, but often the phrase is either used without definition or has been further Individualized Bail Determination defined as relating to either court appearance The notion underlying a risk-based admin- or public safety. For example, the American istration of bail that each defendant poses Bar Association states that the purpose of the his or her own risk, which can be assessed pretrial release decision includes “maintaining using professional standards and research. It the integrity of the judicial process by securing 46 presupposes that the fixing of bail in a blanket defendants for trial.” Other jurisdictions fashion not taking into consideration those use the phrase when describing the threat of individual risk characteristics is flawed and intimidating or harassing witnesses, arguably possibly illegal. The notion was first articulated clear risks to public safety. by the United States Supreme Court in Stack v. Boyle, 342 U.S. 1, 5-6 (1951), when the Court The phrase “ensure the integrity of the judicial 47 wrote that “[t]o infer from the fact of indict- process” was used in United States v. Salerno, ment alone a need for bail in an unusually high but only in a passing reference to the argument amount is an arbitrary act,” and “[s]ince the on appeal. Reviewing the court of appeals function of bail is limited, the fixing of bail for ruling, however, sheds some light on that argu- any individual defendant must be based upon ment. The principle contention at the court of standards relevant to the purpose of assuring appeals level was that the Bail Reform Act of the presence of that defendant. The traditional 1984 violated due process because it permitted standards as expressed in the Federal Rules of pretrial detention of defendants when their Criminal Procedure are to be applied in each release would pose a danger to the community 48 case to each defendant.” The particular stan- or any person. As the appeals court noted, dards referred to in Stack included the nature this contention was different from what it and circumstances of the offense, the weight of considered to be the clearly established law the evidence, the financial ability of the defen- that detention was proper to prevent flight or dant, and his or her character. Most states threats to the safety of those solely within the have similar standards in their bail statutes, judicial process, such as witnesses or jurors. thus statutorily mandating an individualized The appeals court found the idea of potential bail setting. risk to the broader community “repugnant” to due process and, had the Supreme Court not reversed, the distinction between those in the Initial Appearance judicial process and those outside of it might see First Appearance have remained. However, by upholding the Bail Reform Act’s preventive detention provi-

GLOSSARY OF TERMS 15

sions, the Supreme Court forever expanded the Judicial Officer notion of public safety to encompass consid- Broader than the term “judge,” judicial offi- eration of all potential victims, whether in or cers include judges and magistrates, as well out of the judicial process. Today, use of the as other officers of the court as defined locally phrase typically begs further definition so as to or in state or federal bail statutes. In some clarify whether judicial integrity means specif- jurisdictions the title is important when deter- ically court appearance or public safety, more mining the authority to grant or fix bail. general compliance with all court-ordered conditions of one’s bail bond, or some other relevant factor. Least Restrictive Conditions Least restrictive conditions is a concept related Jail to excessive bail, as evidenced by the United States Supreme Court’s opinion in Salerno, A jail is a building designated and used to which explained that conditions of bail must be temporarily confine persons who are sentenced set at a level designed to assure a constitution- to minor crimes or who do not obtain release ally valid purpose for limiting pretrial freedom during the pretrial period, typically operated “and no more.” The phrase “least restrictive by local jurisdictions. As Black’s notes, it is a conditions” is a term of art expressly contained place of confinement that is somewhat more in the federal and District of Columbia stat- than a police station, and less than a prison. Jail utes, the American Bar Association best-prac- is pronounced the same as “gaol,” the British tice standards on pretrial release, and other variant, which is traced to the Latin term for state statutes based on those Standards (or a “cage.” Because jails are seen as somewhat temporary, they often do not have the sort of reading of Salerno). Moreover, the phrase is long-term rehabilitation programs afforded in implicit through similar language from various many prisons. state high court cases articulating, for example, that bail may only be met by means that are “the least onerous” or that impose the “least Judge possible hardship” on the accused. A public official appointed or elected to hear and decide legal matters in court (Black’s). Commentary to the ABA Standard recom- The term is often used interchangeably with mending release under the least restrictive “court,” as in “I hope that the court will decide conditions states as follows: this matter soon.” There are numerous types of judges, from county and district to military This Standard’s presumption that defen- and “senior visiting,” so one should attempt dants should be released under the least always to further clarify the title. The term restrictive conditions necessary to provide is frequently misused to describe those on reasonable assurance they will not flee supreme courts, who are typically instead or present a danger is tied closely to the called “justices.” In some jurisdictions the title presumption favoring release generally. is important when determining the authority It has been codified in the Federal Bail to grant or fix bail. Reform Act and the District of Columbia release and pretrial detention statute,

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as well as in the laws and court rules of a cured bond because such a bond requires no number of states. The presumption consti- ‘up front’ costs to the defendant and no costs tutes a policy judgment that restrictions on if the defendant meets appearance require- a defendant’s freedom before trial should ments.” be limited to situations where restrictions are clearly needed, and should be tailored Legal and Evidence-Based Practices to the circumstances of the individual case. Additionally, the presumption reflects a According to Marie VanNostrand, Ph.D., who practical recognition that unnecessary first coined the term, they are “interventions detention imposes financial burdens on the and practices that are consistent with the community as well as on the defendant. pretrial legal foundation, applicable laws, and methods research has proven to be effective The least restrictive principle is foundational, in decreasing failures to appear in court and and is expressly reiterated throughout the ABA danger to the community during the pretrial Standards when, for example, those Standards stage. The term is intended to reinforce the recommend citation release or summonses uniqueness of the field of pretrial services versus arrest. Moreover, the Standard’s overall and ensure that criminal justice profes- scheme creating a presumption of release on sionals remain mindful that program prac- recognizance, followed by release on nonfinan- tices are often driven by law and when driven cial conditions, and finally release on financial by research, they must be consistent with the conditions is directly tied to this foundational pretrial legal foundation and the underlying 49 premise. Indeed, the principle of least restric- legal principles.” tive conditions transcends the Standards and flows from even more basic understandings of Magistrate criminal justice, which begins with presump- A judicial officer, often with limited juris- tions of innocence and freedom, and which dictional power, who possesses whatever correctly imposes increasing burdens on the authority that is given to him or her through government to incrementally restrict one’s appointment or law. In some jurisdictions liberty. the title is important when determining the authority to grant or fix bail. More specifically, however, the ABA Stan- dard’s commentary on financial conditions makes it clear that the Standards consider Manhattan Bail Project (or Vera Study) secured money bonds to be a more restric- One of the best known social science studies tive alternative to both unsecured bonds and of bail, and the first to explore alternatives to nonfinancial conditions: “When financial release on secured financial conditions (money conditions are warranted, the least restrictive bail bonds). It was conducted by the Vera Foun- conditions principle requires that unsecured dation (now the Vera Institute of Justice) and bond be considered first.” Moreover, the Stan- the New York University Law School beginning dards state, “Under Standard 10-5.3(a), finan- in October of 1961. It was designed “to provide cial conditions may be employed, but only information to the court about a defendant’s when no less restrictive non-financial release ties to the community and thereby hope that condition will suffice to ensure the defendant’s the court would release the defendant without appearance in court. An exception is an unse- requiring a bail bond [i.e., release on the

GLOSSARY OF TERMS 17

defendant’s own recognizance].”50 The project protect public safety, a notion with no empir- was a focal point of discussion at the National ical support and no legal basis in the more Conference on Bail and Criminal Justice in enlightened states’ statutes. 1964, and generally in the bail reform move- ment of the 1960s. Money Bail System The “traditional” money or financial bail Misdemeanor system, which includes any system of the A crime that is less serious than a felony and is administration of bail that is over-reliant on usually punishable by a fine or relatively brief money. Some of its hallmarks include mone- confinement in a place other than a prison tary bail bond schedules, overuse of secured (Black’s). See also Felony bonds, a reliance on commercial sureties (for- profit bail bondsmen), financial conditions Monetary Bail Bond Schedule (or Bail set to protect the public from future criminal Schedule) conduct, and financial conditions set without consideration of the defendant’s ability to A written listing of amounts of money to pay, or without consideration of non-financial be used in bail setting based on the offense conditions that would likely reduce risk. charged, regardless of the characteristics of any individual defendant. While they are often National Association of Pretrial Ser- created with good intentions, many argue that bail schedules are the antithesis of individu- vices Agencies (“NAPSA”) Standards alized bail determinations, and thus clearly on Pretrial Release violate principles articulated by the Supreme NAPSA is the national professional association Court in Stack v. Boyle.51 To many, they also for the pretrial release and pretrial diversion improperly displace judicial discretion, and fields. Like the ABA’s Standards, the NAPSA’s they have been “flatly reject[ed]” by the Amer- Standards on Pretrial Release serve as best ican Bar Association’s Criminal Justice Stan- practice standards in the field.53 In many areas, dards on Pretrial Release because they are the NAPSA Standards compliment (and some- “arbitrary and inflexible,” and because they times mirror) the ABA Standards, but they also exclude individualized factors that are more provide important detailed guidance on best relevant to risk. At least three state supreme practices for operating pretrial services agen- courts have examined procedures to imple- cies or programs. ment non-discretionary bail amounts and found them legally deficient.52 National Conference on Bail and Criminal Justice Money Bail The 1964 conference, convened by United A shorthand term used primarily for describing States Attorney General Bobby Kennedy, which bail or a bail bond using secured financial brought together over 400 judges, prosecutors, conditions. The two central issues concerning defense lawyers, police, bondsmen, and prison money bail are: (1) unnecessary incarceration officials to present “for analysis and discussion of defendants who cannot afford to pay; and specific and workable alternatives to [money] (2) the use of secured financial conditions to bail based on the experience of the Manhattan

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Bail Project and some others which followed in an agreement to a more lenient sentence or a its wake.”54 Attorney General Kennedy closed dismissal of other charges. It is also called a the conference with the following memorable “plea agreement.” There is a significant, but statement: extremely sensitive issue in the administra- tion of bail concerning whether a defendant’s For 175 years, the right to bail has not been pretrial status has the effect of “coercing” a a right to release, it has been a right merely plea, typically by providing the defendant with to put up money for release, and 1964 can a Hobson’s choice (a take it or leave it option) hardly be described as the year in which the of pleading guilty in order to be released from defects in the bail system were discovered. confinement. Given the large percentage of cases ending with guilty pleas, research is * * * needed to shed further light on this issue.

What has been made clear today, in the Point Scale last two days, is that our present atti- tudes toward bail are not only cruel, but A system by which number or “point” values really completely illogical. What has been are assigned to various characteristics and demonstrated here is that usually only one circumstances associated with individual factor determines whether a defendant defendants. Threshold scores are established stays in jail before he comes to trial. That that identify defendants as eligible for release factor is not guilt or innocence. It is not the or not. Many pretrial programs have used a nature of the crime. It is not the character version of the original VERA point scale at one of the defendant. That factor is, simply, time, but many others have developed local or money. How much money does the defen- statewide validated pretrial risk assessments dant have?55 as called for by national standards. See Pretrial Risk Assessment Plea Preliminary Hearing In criminal law, it is an accused person’s formal response to a criminal charge (e.g., “guilty,” A criminal hearing to determine whether there “not guilty,” “no contest”) (Black’s). is sufficient evidence to prosecute an accused person. If sufficient evidence exists, the case proceeds to the next phase. Also called a Parole preliminary examination, a probable cause Release from jail, prison, or other confine- hearing, or a bindover hearing (Black’s). ment after actually serving part of a sentence (Black’s). Presentment A little-used term to describe the act of Plea Bargain bringing a defendant before a judge for the A negotiated agreement between a prosecutor defendant’s first appearance as soon as reason- and a criminal defendant whereby the defen- ably possible. The United States Supreme dant typically pleads guilty to a lesser offense, Court recently commented on the federal or to one of multiple charges, in exchange for presentment requirement, writing that it is some concession by the prosecutor, such as not just some “administrative nicety,” but in

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fact still has practical importance: “As we said, without any burden placed on the accused to it stretches back to the common law, when it prove innocence (Black’s). Although it is not was one of the most important protections mentioned in the United States Constitution, against unlawful arrest. Today presentment its tie to the criminal burden of proof implicates is the point at which the judge is required to the Due Process Clause.57 The United States take several key steps to foreclose Government Supreme Court first discussed the principle as overreaching: informing the defendant of the the “true origin” of the doctrine of reasonable charges against him, his right to remain silent, doubt, writing in Coffin v. United States that his right to counsel, the availability of bail, and “a presumption of innocence in favor of the any right to a preliminary hearing; giving the accused is the undoubted law, axiomatic and defendant a chance to consult with counsel; elementary, and its enforcement lies at the and deciding between detention or release.”56 foundation of the administration of our crim- See First Appearance inal law.”58 The Coffin Court itself traced the presumption’s origins to various statements Presumption under Roman law, which included not only notions of proof, but also language re-articu- A legal inference of assumption that a fact lated and published by Blackstone, who wrote exists, based on the known or proven exis- that “it is better that ten guilty persons escape tence of some other fact or group of facts. Most than that one innocent suffer.” presumptions are rules of evidence calling for a certain result in a given case unless the Some confusion surrounding the phrase adversely affected party overcomes it with derives from a line in Bell v. Wolfish, in which other evidence. A presumption shifts the the Court stated that the presumption of inno- burden of production or persuasion to the cence “has no application to a determination of opposing party, who can then attempt to over- the rights of a pretrial detainee during confine- come the presumption (Black’s). Concerning ment before his trial has even begun.”59 The bail and pretrial release, the term is often used temptation to use this quote to erode the role in “presumption of innocence” (see below), of the presumption in the administration of a “presumption of release” (tied philosoph- bail is dampened considerably by the scope of ically to the presumption of innocence, and concerns addressed in the Bell opinion. As the included in both the ABA’s Criminal Justice Court expressly stated: “We are not concerned Standards on Pretrial Release and NAPSA’s with the initial decision to detain an accused Standards on Pretrial Release), a more specific and the curtailment of liberty that such a deci- “presumption of release on recognizance” (a sion necessarily entails. . . . Instead, what is at principle flowing from the Standards’ recom- mendations to use least restrictive conditions issue when an aspect of pretrial detention that of release), and sometimes a “presumption is not alleged to violate any express guarantee toward confinement” found in some preven- of the Constitution is challenged, is the detain- tive detention statutes. ee’s right to be free from punishment, and his understandable desire to be as comfortable as possible during his confinement, both of which Presumption of Innocence may conceivably coalesce at some point.”60 Bell The fundamental principle that a person may was essentially a conditions-of-confinement not be convicted of a crime unless the govern- case, and the “no application” language, above, ment proves guilt beyond a reasonable doubt, was uttered in discussing a prisoner’s right to

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be free from the correctional facility’s practice Pretrial Conditional Release of “double bunking” inmates. Pretrial conditional release refers to any form Thus, the presumption of innocence every- of release in which the defendant is required thing to do with bail and the decision to release to comply with specific conditions set by the or confine a particular inmate, and theBell court, which can be financial, nonfinancial, or language should in no way diminish the strong both. statements concerning the right to bail found in Stack v. Boyle, in which the Court wrote, Pretrial Detention From the passage of the Judiciary Act of Holding a defendant in secure detention before 1789, to the present Federal Rules of Crim- trial on criminal charges either because release inal Procedure, federal law has unequiv- was denied or because the established bail bond ocally provided that a person arrested for could not be posted (Black’s). As the definition a non-capital offense shall be admitted implies, pretrial detention can be intended to bail. This traditional right to freedom or unintended, and thus judges should be before conviction permits the unham- purposeful when setting bail bonds so that pered preparation of a defense, and serves they realize their intention that the defendant to prevent the infliction of punishment either be released or remain detained. prior to conviction. Unless this right to bail before trial is preserved, the presumption Pretrial Justice of innocence, secured only after centuries According to Tim Murray, Director Emeritus 61 of struggle, would lose its meaning. of the Pretrial Justice Institute, pretrial justice involves the proper administration of laws That the broader notion of a right to bail through fair and effective pretrial policies and necessarily triggers serious consideration of practices for “the host of decisions that occur, the presumption of innocence is also clearly from the arrest up to the point at which the case seen in United States v. Salerno, through is concluded or disposed of.”63 This definition Justice Marshall’s dissent in which he wrote, extends the concept beyond merely the bail, albeit unconvincingly, that “the very pith and or release/detention decision, to all decisions purpose of [the Bail Reform Act of 1984] is an made during the pretrial phase of a criminal abhorrent limitation of the presumption of case. A similarly broad definition, drafted with innocence.”62 inspiration from the United States Probation and Pretrial Services Charter for Excellence, is Pretrial as follows: “The honoring of the presumption of innocence, the right to bail that is not exces- A period of time referring to the phase of a crim- sive, and all other legal and constitutional inal defendant’s case beginning at arrest and rights afforded to accused persons awaiting ending at final disposition. The term is often trial while balancing these individual rights misused to refer to a pretrial services agency with the need to protect the community, main- or program, or to pretrial services supervision. tain the integrity of the judicial process, and assure court appearance.”64

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Pretrial Release Decision national organizations, such as the National Association of Pretrial Services Agencies and A court’s determination of whether a criminal the American Bar Association, through their defendant will remain at liberty or be held in published standards. secure detention until the disposition of his or her case. According to the American Bar Association’s Criminal Justice Standards on Pretrial Services Agency or Program Pretrial Release, “[t]he purposes of the pretrial While widely varying, a pretrial services release decision include providing due process agency or program is generally known as any to those accused of crime, maintaining the organization created ideally to perform the integrity of the judicial process by securing three primary pretrial agency or program func- defendants for trial, and protecting victims, tions of: (1) collecting and analyzing defendant witnesses, and the community from threats, information for use by the court in assessing 65 danger, or interference.” The pretrial release risk; (2) making recommendations to the court decision, as contemplated by the Standards, is concerning bail bond conditions of release to specifically distinguished from the traditional address risk; and (3) monitoring and super- financial bail decision. See Money Bail vising defendants who are released from secure System, Bail custody during the pretrial phase of their cases in order to manage their risk. For a number of Pretrial Release Outcomes reasons, having a single entity provide these Although the term “outcomes” can reflect functions is likely the ideal, and is superior whatever is measured (e.g., pretrial detention/ to separating the functions and having them release outcomes, adjudication and sentencing performed by other, existing criminal justice outcomes), it is typically used to refer to results entities. tied to the two constitutionally valid purposes for limiting pretrial freedom – court appear- Pretrial Supervision ance and public safety. A third outcome, The act of managing, directing, or overseeing a compliance with all other bail bond conditions, defendant who has been released from secure may also be measured. custody during the pretrial phase of a crim- inal case, ideally to reasonably assure both Pretrial Risk Assessment court appearance and public safety. It is often The method by which a pretrial services re-phrased as “pretrial services supervision,” program/agency or individual identifies and used to refer to supervision by a pretrial and categorizes risks of pretrial misconduct services program or agency, engaged to provide presented by a particular defendant based oversight for compliance with all conditions of upon the information gathered before the bail a bail bond to further the dual purpose of bail. hearing. The risk assessment can be either Because commercial bail bondsmen are only subjective or objective. Subjective assessments concerned with court appearance, their over- are based on an evaluation of the defendant by sight in any particular case could arguably be the interviewer, who draws on his or her prior considered a more limited form of “pretrial experience to assess release appropriateness. supervision,” but likely never “pretrial services Objective assessments are based on procedures supervision.” and conclusions supported by research and

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Preventive Detention tion) for confinement of persons convicted of serious crimes. One should not expect to find Pretrial detention designed to prevent either any pretrial inmates housed in a state prison; flight or danger to the community. The laws of however, defendants facing federal charges are many states and the federal system allow the sometimes held in federal prisons, and some court to detain defendants in certain carefully states actually call their jails “prisons.” Private defined categories of cases either based on prisons exist in the United States, which are the defendant’s most serious charge or when run by private corporations whose services and no condition or combination of conditions of beds are contracted out by state governments pretrial release can reasonably assure court or the Federal Bureau of Prisons. appearance or public safety. When drafted properly, these laws include substantial due process elements, such as those reviewed and Probable Cause approved by the United States Supreme Court A reasonable ground to suspect that a person in United States v. Salerno.66 It is correctly has committed or is committing a crime or argued that such detention should be used that a place contains specific items connected sparingly, for while the Supreme Court in with a crime (Black’s). Probable cause gener- Salerno upheld the federal preventive deten- ally refers to having more evidence for than tion provisions of the Bail Reform Act of 1984, it against. It is a term of art in criminal proce- also uttered the memorable statement, “In our dure referring to the requirement that arrests society, liberty is the norm, and detention prior be based on probable cause. Probable cause to trial or without trial is the carefully limited to arrest is present when “at that moment the exception.”67 In that opinion, the Court specif- facts and circumstances within [the officers’] ically emphasized that the “extensive safe- knowledge and of which they had reason- guards” embedded in the Bail Reform Act and ably trustworthy information were sufficient the “careful delineation of the circumstances to warrant a prudent man in believing that under which detention will be permitted” were the [person] had committed or was commit- crucial to repelling the constitutional chal- ting an offense.”69 In County of Riverside v. lenges. Nevertheless, some federal districts McLaughlin, 500 U.S. 44 (1991), the Supreme have reported pretrial detention rates as high Court ruled that suspects who are arrested as 70-80%, indicating potential overuse of the without a warrant must be given a probable statutory provisions, and a trend contrary to cause hearing within 48 hours. the Court’s warning to ensure that detention remain an exception.68 Moreover, in many Probation cases across this country bail bonds are often set in unaffordable, if not excessive amounts, A court imposed criminal sentence that, leading to preventive detention without any of subject to stated conditions, releases a the procedural safeguards envisioned by the convicted person into the community instead Court in Salerno. of sending him or her to jail or prison (Black’s). Though similarities exist between proba- tion and pretrial release (indeed, sometimes Prison pretrial services are delivered by a jurisdic- According to Webster’s Dictionary, a prison is tion’s probation office), the crucial difference generally a place of confinement, and specifi- is that probation is a sentence of punishment cally an institution (as one under state jurisdic- imposed upon conviction, and thus has entirely

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different legal purposes than those underlying sent indigent criminal defendants (Black’s). the bail process. There exists an unfortunate Any term relating to defense counsel raises irony that many criminal defendants will the important but somewhat misunderstood spend the entire pretrial phase of their case in issue of lawyer representation during the first secured confinement, only to be released back appearance. The relevant National Association into the community after conviction by being of Pretrial Services Agencies standard, Stan- sentenced to probation. dard 2.2(d) states that “[a]t the defendant’s first appearance, he or she should be represented Pro se by counsel. If the defendant does not have his or her own counsel at this stage, the judicial For oneself, or on one’s own behalf, without officer should appoint counsel for purposes of the assistance of a lawyer. Sometimes called the first appearance proceedings, and should in propria persona, or “pro per” for short ensure that counsel has adequate opportunity (Black’s). There are empirical data to support to consult with the defendant prior to the first the notion that pro se defendants are at some appearance.”70 Comments to that Standard significant disadvantage during their bail explain that organization’s position: setting. See Public Defender, Right to Counsel The committee that drafted the Standards recognizes that, as of the time of their Prosecutor adoption in 2004, many jurisdictions do A legal officer who represents the government not routinely provide for the appointment in criminal proceedings (although there is of counsel to represent defendants at first such a thing as a private prosecutor, it is rare). appearance. However, if the first appear- They are known by different names, including ance is to be fair and meaningful, it is vitally district attorney, county attorney, common- important to ensure that defendants are wealth attorney, municipal attorney, state’s represented effectively at this proceeding. attorney, prosecuting attorney, etc. Prosecu- Attorneys who understand the importance tors in the federal system are known as United of the decisions made at first appearance, States Attorneys and Assistant United States are familiar with the contents of pretrial Attorneys, or “AUSA’s” for short. services reports and with available release options, and are able to advocate effectively Protection Order/Restraining Order for their clients – on the basis of consulta- tion with the defendant and even very brief Often used interchangeably, but in some states contact with family members or friends of defined differently, both terms refer to court the defendant – can make the difference orders prohibiting or restricting a person from between liberty and confinement for defen- engaging in delineated conduct. They can be dants during the pretrial period.71 mandated statutorily for all cases, or discre- tionary for particular cases, such as domestic violence. The relevant ABA Standard concerning defen- dant representation recommends only that “[i]f the defendant is not released at the first Public Defender appearance and is not represented, counsel A lawyer or staff of lawyers, usually publicly should be appointed immediately. The next appointed and paid, whose duty is to repre- judicial proceeding should occur promptly, but

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not until the defendant and defense counsel bail bond amounts reduced at the hearing; have had an adequate opportunity to confer, (3) had their money bail bond reduced by a unless the defendant has intelligently waived greater amount; (4) were more likely to have the right to be represented by counsel.”72 the money bond reduced to a more affordable Commentary to the Standard, however, better level ($500 or under); (5) spent less time in reflects the ABA’s position on the issue: jail (an average of two days versus nine days for unrepresented defendants); and (6) had [i]n some jurisdictions, defendants are longer bail bond review hearings than defen- represented by counsel, at least provision- dants without lawyers at first appearance.74 In ally, at their first appearance, but this is not a paper reporting the results of this study, the a universal practice. ABA policy, however, authors concluded: clearly recommends that provision of counsel at first appearance should be stan- [L]awyers do make a difference. The dard in every court. Thus, the Providing randomized controlled experiment Defense Services Standards call for counsel conducted by the Lawyers at Bail Project to be provided to the accused ‘as soon as in Baltimore supports the conclusion that feasible, and, in any event, after custody having a lawyer present at a bail hearing to begins, at appearance before a committing provide more accurate and complete infor- magistrate, or when formal charges are mation has far-reaching consequences. The filed, whichever occurs first.’ accused is considerably more likely to be released, to respect the system and comply Provision of counsel at the first appearance with orders, to keep his job and his home, is especially important if consideration is and to help prepare a meaningful defense. going to be given to detention or to release The public at large benefits, too, from the on conditions that involve a significant unclogging of congested court systems and restraint on the defendant’s liberty.73 overcrowded jails and the resulting savings in taxpayer dollars.75 Fairly recent data support the recommen- At the time of their publication, Colbert et al. dations contained in the ABA and NAPSA noted that sixteen states refused to provide Standards. Noting that previous attempts to lawyers at this initial proceeding altogether, provide legal counsel in the bail process have and twenty-six states declined to provide been neglected, in 1998 the Baltimore, Mary- defendant representation at bail bond settings land, Lawyers at Bail Project was created in all but a few counties. According to the to demonstrate empirically whether or not authors, only eight states and the District of lawyers mattered during bail bond setting Columbia provided a right to counsel at first hearings. Using a controlled experiment (with appearance. See Pro Se, Right to Counsel some defendants receiving representation at the bail hearing and others not receiving representation) the Project found that defen- Public Safety dants with lawyers: (1) were over two and The second constitutionally valid purpose for one-half times more likely to be released on limiting pretrial freedom, along with assuring their own recognizance; (2) were over four court appearance, typically measured by new times more likely to have their initially-set arrests or new charges, but sometimes, and

GLOSSARY OF TERMS 25

more appropriately, expressed in the nega- ments from Stack v. Boyle: (1) “federal law has tive from these measurements (e.g., the “no unequivocally provided that a person arrested new arrest or charge rate”). The term is also for a non-capital offense shall be admitted to somewhat overused by some public officials as bail. This traditional right to freedom before an undefined and unmeasured, and thus unas- conviction permits the unhampered prepa- sailable rationale for defending certain policies ration of a defense, and serves to prevent the and practices. infliction of punishment prior to conviction.”76; (2) “The practice of admission to bail, as it has Recognizance evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusa- Generally, an obligation by which a person tion until it is found convenient to give them a promises to perform some act or observe some trial. On the contrary, the spirit of the proce- condition, such as to appear when called, to dure is to enable them to stay out of jail until a pay a debt, or to keep the peace. According trial has found them guilty.”77). The argument to Black’s, a recognizance most commonly also conflicts with the following seminal state- takes the form of a bail bond that guarantees ment from United States v. Salerno: “In our an un-jailed criminal defendant’s return for a society liberty is the norm, and detention prior court date. to trial or without trial is the carefully limited exception.”78 Recommendations The legal structure of the right to bail differs Verbal or written suggestions to the court among the states. Nine states, like the federal regarding the conditions of release or deten- system, have no right to bail articulated in tion appropriate for the case at hand. their constitutions. Approximately twenty one states have “traditional” and fairly broad right Right to Bail to bail provisions, which were modeled after When granted by federal or state law, it is the Pennsylvania’s law of 1682. The remaining right to release from jail or other government states have amended their constitutions to allow for preventive detention in various ways. custody through the bail process. Technically, it is typically the “right to non-excessive bail,” which goes to the reasonableness of the condi- Right to Counsel tions placed on any particular defendant’s The Sixth Amendment right of the accused to release. The United States Constitution does assistance of counsel for his or her defense. not have an explicit right to bail clause, but There is also a Fifth Amendment right, which that right is contained in the federal statute. deals with the right to counsel during all custo- Many states have right to bail clauses, even if dial interrogations, but the Sixth Amend- that right has been limited for certain cases. ment right more directly affects the admin- istration of bail as it applies to all “critical Some argue, incorrectly, that the right to bail stages” of a criminal prosecution. According means only the right to have bail set. This argu- to the Supreme Court, the Sixth Amendment ment ignores clear statements by the United right “does not attach until a prosecution is States Supreme Court indicating that the commenced.”79 Commencement, in turn, is right to bail normally means a right to pretrial “the initiation of adversary judicial criminal freedom, such as the following two state- proceedings – whether by way of formal charge,

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preliminary hearing, indictment, information, It was in the Salerno opinion that Chief Justice or arraignment.”80 InRothgery v. Gillespie Rehnquist uttered the famous statement County, the United States Supreme Court (and rallying cry for all those now seeking “reaffirm[ed]” what it has held and what “an bail reform), “[i]n our society, liberty is the overwhelming majority of American jurisdic- norm, and detention prior to trial or without tions” have understood in practice: “a criminal trial is the carefully limited exception.”83 See defendant’s initial appearance before a judicial Preventive Detention officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that Secured Bond trigger attachment of the Sixth Amendment see Bail Bond right to counsel.”81 Security Salerno Collateral given or pledged to guarantee fulfill- Short for United States v. Salerno, 481 U.S. 739 (1987), the United States Supreme Court case ment of an obligation (Black’s). Implied is the that upheld the 1984 Bail Reform Act’s preven- forfeiture of this collateral if the obligation is tive detention language against facial Due not met. Process and Eighth Amendment challenges. Regarding the Eighth Amendment claim, the Stack v. Boyle Court concluded: 342 U.S. 1 (1951). The first major Supreme Nothing in the text of the Bail Clause limits Court case to address issues in the administra- permissible Government considerations tion of bail, albeit written at a time when the solely to questions of flight. The only argu- sole purpose of bail was to reasonably assure able substantive limitation of the Bail court appearance. Its holding included the Clause is that the Government’s proposed following language: conditions of release or detention not be ‘excessive’ in light of the perceived evil. Of the modern practice of requiring a bail bond course, to determine whether the Govern- or the deposit of a sum of money subject to ment’s response is excessive, we must forfeiture serves as additional assurance compare that response against the interest of the presence of an accused. Bail set at the Government seeks to protect by means a figure higher than an amount reasonably of that response. Thus, when the Govern- calculated to fulfill this purpose is ‘exces- ment has admitted that its only interest is in sive’ under the Eighth Amendment. Since preventing flight, bail must be set by a court at a sum designed to ensure that goal, and the function of bail is limited, the fixing no more. We believe that, when Congress of bail for any individual defendant must has mandated detention on the basis of a be based upon standards relevant to the compelling interest other than prevention purpose of assuring the presence of that of flight, as it has here, the Eighth Amend- defendant.84 ment does not require release on bail.82

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The case is also often cited for the following their use by the courts and others as important language concerning the presumption of inno- sources of authority.87 cence: Sufficient Sureties [f]rom the passage of the Judiciary Act of 1789, to the present Federal Rules of Crim- In the administration of bail, the phrase is inal Procedure, Rule 46 (a)(1),85 federal law used to mean adequate assurance as a limit to has unequivocally provided that a person an unfettered right to bail, sufficient to accom- arrested for a non-capital offense shall plish the purpose of bail – that is, court appear- be admitted to bail. This traditional right ance and public safety. The language is derived to freedom before conviction permits the from the 1682 Pennsylvania constitutional unhampered preparation of a defense, and provision, providing that “‘all prisoners shall serves to prevent the infliction of punish- be Bailable by Sufficient Sureties, unless for ment prior to conviction. Unless this capital Offenses, where proof is evident or the 88 right to bail before trial is preserved, the presumption great.’” The Pennsylvania law presumption of innocence, secured only was quickly copied, and as the country grew after centuries of struggle, would lose its “the Pennsylvania provision became the model meaning.86 for almost every state constitution adopted after 1776.”89 The more litigated issue at bail Finally, the case is known for language both in is what the term “sureties” in “sufficient sure- the majority opinion as well as Justice Jack- ties” means, and specifically whether it limits son’s memorable concurring opinion, empha- the government to accepting commercial sure- sizing the importance of individualized bail ties versus, for example, cash-only financial determinations that are tailored to each defen- conditions of release. In one state court case, dant. the Colorado Court of Appeals reviewed other published state court decisions surrounding the issue and wrote the following: Standards (also “National Standards”) Generally, standards are models accepted the vast majority [of jurisdictions], either as correct by custom, consent, or authority, expressly or implicitly, understand the or a criterion for measuring acceptability, word ‘sureties’ in the phrase ‘sufficient quality, or accuracy. In the field of pretrial sureties,’ to encompass a variety of bond release, “standards” refer to specific recom- forms, including cash. See State v. Briggs, mendations based on empirically sound supra, 666 N.W.2d at 583 (“the framers did social science research and fundamental legal not intend to favor one particular method principles designed to provide guidance and of surety-commercial bonding-by inclusion insight to policymakers and practitioners of the sufficient sureties clause”); State v. working to further pretrial justice. The stan- Brooks, supra, 604 N.W.2d at 353 (the word dards published by the National Association “sureties” “encompasses a broad array of of Pretrial Services Agencies (NAPSA) are methods to provide adequate assurance directed specifically toward pretrial programs. that an accused will appear as the court The American Bar Association’s Criminal requires”); see also Ex parte Singleton, Justice Standards on Pretrial Release stand supra, 902 So.2d at 135 (quoting State v. out due to their breadth of stakeholder input, Briggs, supra, 666 N.W.2d at 581-83: “[w]e their comprehensive process for adoption, and are also confident that the framers did not

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intend to favor one particular method of 522 P.2d 735, 736 (1974) (such a purpose surety”); People ex rel. Gendron v. Ingram, “should be met by means which impose the 34 Ill.2d 623, 217 N.E.2d 803, 806 (1966) least possible hardship upon the accused”); (“the alternative methods of bail provided see also Reynolds v. United States, 80 S.Ct. in [the statutes] do not violate the consti- 30, 32, 4 L.Ed.2d 46 (1959). Interpreting tutional provision that all persons shall be the word ‘sureties’ broadly to encompass bailable by ‘sufficient sureties” ’); Burton multiple bond forms satisfies this purpose. v. Tomlinson, 19 Or.App. 247, 527 P.2d When bail may be secured by a court in 123, 126 (1974) (“Nowhere does it say that a variety of ways, the court’s ability to lawful release of a defendant may be accom- assure the presence of the accused at trial plished only through the medium of sure- is strengthened. See Rendel v. Mummert, ties.”); cf. Rendel v. Mummert, supra, 474 supra, 474 P.2d at 828 (“‘sufficient sure- P.2d at 828; State ex rel. Jones v. Hendon, ties’ mean, at a minimum, that there is 66 Ohio St.3d 115, 609 N.E.2d 541, 543 reasonable assurance to the court that (1993); but see State v. Golden, supra, 546 if the accused is admitted to bail, he will So.2d at 503 (limiting the “sufficient sure- return as ordered until the charge is fully ties” clause to commercial sureties). determined”).

Because the history of the phrase in each Accordingly, we agree with the majority of of the respective constitutions is similar, jurisdictions considering the issue that, in we are persuaded by the near uniformity reference to bail, the term “sureties” refers of these opinions on this question. We also to a broad range of guarantees used for the find particularly informative the exhaus- purpose of securing the appearance of the tive historical analysis done by the Iowa defendant. Such guarantees include, but Supreme Court in Briggs. Specifically, are not limited to, bonds secured by cash.90 that court noted that the several state constitutions that included “sufficient sure- Historically, sureties were always people, and ties” upon which the Iowa provision was government officials attained sufficiency by patterned were drafted before commer- “stacking’ sureties – that is, by using multiple cial sureties even emerged as a popular persons to take collective responsibility for the bond form. Similarly, the court pointed defendant pretrial. to historical data indicating that personal, monetary, and property sureties were all more well-known ways to secure a bond Summons when the Iowa Constitution was enacted. A notice requiring a person to appear in court State v. Briggs, supra, 666 N.W.2d at 583; as a juror or witness; a writ directing a sheriff cf. People v. Mellor, 2 Colo. 705, (1875) or other proper officer to notify a defendant to (cash bond imposed by trial court). appear in court on a day named (Black’s). In the administration of bail, there is a significant Furthermore, in Colorado, as in most juris- issue concerning what criteria should govern a dictions, the primary purpose of bail is to judge’s decision to issue summonses in lieu of assure the presence of the accused at trial. arrest warrants. See People v. Sanders, 185 Colo. 153, 156,

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Surety or Sureties Unsecured Bond Generally, a surety is a person who is primarily see Bail Bond liable for paying another’s debt or performing another’s obligation (Black’s). In the adminis- Vera Study tration of bail, a “surety” is one of a broad range of guarantees (not necessarily a person) as a see Manhattan Bail Project limit to an unfettered right to bail, sufficient to accomplish the purpose of bail – i.e., court Warrant appearance and public safety. The “sufficient A writ directing or authorizing someone to do surety” language found in many state consti- an act, especially directing a law enforcement tutions was drafted long before the inception officer to make an arrest, a search, or a seizure of pretrial services programs and agencies, (Black’s). An arrest warrant typically refers before release on recognizance programs, to the warrant issued upon probable cause to and before the use of commercial sureties, so arrest and bring a person to court. The term a somewhat broader definition is warranted “bench warrant” is often used for any warrant to cover all current methods used to provide issued from the bench, but more specifically for reasonable assurance of court appearance and those warrants issued for the arrest of a person public safety. who has been held in contempt, who has failed to appear, or has disobeyed a subpoena. Third Party Custody A condition of release that requires that Writ another person or program be responsible A court’s written order, in the name of a state or for assuring the defendant’s appearance and other competent legal authority, commanding compliance with all other bond conditions. the addressee to do or refrain from doing a Typically, the defendant signs a bail bond and specified act. There are numerous types of agrees to remain in the custody of a third party. writs, including, technically, a capias or arrest The third party, in turn, agrees to supervise warrant, and the Great Writ ofhabeas corpus. the defendant and report any violation of the conditions of release to the court. Other condi- tions may also be imposed.

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References 15. See Evie Lotze, John Clark, D. Alan Henry, & Jolanta Juszkiewicz, The Pretrial Services 1. Bryan A. Garner, A Dictionary of Modern Reference Book, Pretrial Servs. Res. Ctr. (Dec. Legal Usage (Oxford Univ. Press, 3rd ed. 1995), 1999), at 5. The Act was codified at 18 U.S.C. §§ at 96 [hereinafter Garner]. 3141-3151. 2. Black’s Law Dictionary (West Pub. Co., 9th 16. 18 U.S.C. § 3142 (b). ed. 2009). 17. Id. § 3142 (e). 3. Asimow, Popular Culture and the Adversary System, 40 Loy. L. A. L. Rev. 653 (2007). 18. See Id. 4. Garner, supra note 1, at 96. According to 19. 481 U.S. 739 (1987). Garner, as a noun, people use the term bail 20. 342 U.S. 545-46. to mean (1) a person who acts as a surety for 21. Wayne H. Thomas, Jr., Bail Reform in a debt, (2) thesecurity or guarantee agreed America (Univ. CA Press 1976) [hereinafter upon, and (3) the release on surety of a person Thomas] at 200. in custody. 22. American Bar Association Standards for 5. Bouvier’s Law Dictionary, 8th ed., Vol. 1, at Criminal Justice (3rd ed.) Pretrial Release 153 (1858). (2007) [hereinafter ABA Standards] Std. 6. 342 U.S. at 4 (internal citation omitted) 10-1.3, at 41. The term “minor offenses” is (emphasis added). used rather than “misdemeanors” because the 7. 481 U.S. 739, 755 (1987). latter term is often defined differently among jurisdictions across the United States. Gener- 8. Frequently Asked Questions About Pretrial ally, according to the commentary to Standard Release Decision Making (ABA 2012). 10-1.3, “‘minor offenses’ are the equivalent to 9. Va. Code. § 19.2-119 (2013). lower-level misdemeanors. However, when the 10. Colo. Rev. Stat. § 16-1-104 (2013). alleged offense involves danger or weapons – 11a. Alaska Const. art. I, § 11. as, for example, is often the case in domestic violence misdemeanors – the Standard allows 11b. Florida Const. art. I, § 14. jurisdictions to determine that the offense is 11c. Conn. Const. art. 1, § 8. not ‘minor,’ regardless of its statutory designa- 11d. Wis. Const. art. 1, § 8. tion.” Id. 12. Of course, there are other ways that defen- 23. Id. Std. 10-2.1, at 63. dants can be released from pretrial confine- 24. Id. at 63-64. ment, such as through an emergency release 25. Id. Std. 10-2.2, at 65. procedure in response to a court order placing limits on a jail’s population. 26. Id. Std. 10-2.3, at 69. 13. Cohen & Reaves, Felony Defendants in 27. See Performance Standards and Goals Large Urban Counties, 2006, U.S. Dept. of for Pretrial Diversion/Intervention (2008) Justice, Bur. of Justice Stats. (May 2010), at athttp://www.napsa.org/publications/diver- 17, found at http://bjs.ojp.usdoj.gov/content/ sion_intervention_standards_2008.pdf. pub/pdf/fdluc06.pdf. 28. See at http://www.pretrial.org/Diversion- 14. Id. Programs/Pages/default.aspx.

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29. Standards on Pretrial Release (3rd ed.), 46. ABA Standards, supra note 22, Std. 10-1.1. Nat’l Assoc. of Pretrial Servs. Agencies (Oct. 47. 481 U.S. 739, 753 (1987). 2004), Std. 1.4 (g) (commentary) at 16 [here- 48. See United States v. Salerno, 794 F.2d 64 inafter NAPSA Standards]. (2d Cir. 1986) rev’d, 481 U.S. 739, 753 (1987). 30. Id. (commentary) at 19. 49. Marie VanNostrand, PhD., Legal and 31. ABA Standards, supra note 22, Std. 10-1.4 Evidence Based-Practices: Applications of (f) (commentary), at 45. Legal Principles, Laws and Research to the 32. 481 U.S. 739, 746 (1987). Field of Pretrial Services (Nat’l Inst. Corr. and 33. See, e.g. Soland, Constitutional Law – the Crime and Justice Inst., April 2007) at 12. Equal Protection – Imposing Money Bail, 46 50. Thomas, supra note 21, at 4. Tenn. L. Rev. 203 (1978). 51. 342 U.S. 1 (1951). 34. 351 U.S. 12, 19 (1956). 52. See Clark v. Hall, 53 P.3d 416 (2002); 35. Bandy v. United States, 81 S. Ct. 197, 198 Pelekai v. White, 861 P.2d 1205 (1993); (1960). Demmith v. Wisc. Jud. Conf., 480 N.W. 2d. 36. Bandy v. United States, 82 S. Ct. 11, 13 502 (Wisc. 1992). (1961). 53. NAPSA Standards, supra note 29. 37. 481 U.S. 739, 754 (1987). 54. National Conference on Bail and Crim- inal Justice, Proceedings and Interim Report 38. Galen v. County of Los Angeles, 477 F.3d (Washington, D.C. Apr. 1965), at XIV. 652, 660 (9th Cir. 2007) (internal citations omitted). 55. Id. at 296. 39. 342 U.S. 1, 5 (1951). 56. Corley v. United States, 129 S. Ct. 1558, 1570 (2009) (internal citations and quotations 40. See, e.g., United States v. Polouizzi, 697 F. omitted). Supp. 2d 381, 388 (E.D.N.Y 2010) (“The excess can be reflected in monetary terms or in other 57. See In Re Winship, 397 U.S. 358, 362-64 limitations on defendant’s freedom such as (1970) (“The [reasonable doubt] standard curfews, house arrests, limits on employment, provides concrete substance for the presump- or electronic monitoring.”). tion of innocence – that bedrock axiomatic and elementary principle whose enforcement lies 41. 554 U.S. 191, 195 (2008). at the foundation of the administration of our 42. Compare, e.g., Colo. Rev. Stat. § 16-4-112 criminal law.”). (forfeiture procedure for compensated sure- 58. 156 U.S. 432, 460, 453 (1895). ties) with Colo. Rev. Stat. § 16-4-109 (forfei- ture procedure for all other bonds). 59. 441 U.S. 520, 533 (1979). 43. Garner, A Dictionary of Modern Legal 60. Id. at 533-34. Usage (Oxford Univ. Press 1987) at 263. 61. 342 U.S. 1, 4 (1951). 44. Harris v. Nelson, 394 U.S. 286 290-91 62. 481 U.S. 739, 762-63 (1987). (1969). 63. See Transcript: Justice Matters – Interview 45. Rose v. Lundy, 455 U.S. 509, 546 n. 16 with Tim Murray Regarding Pre-Trial Justice (1982) (J. Stevens, dissenting) (internal quota- and the Crucial Role Reentry Programs Play tions omitted). in the Justice System, at http://www.pretrial.

A PUBLICATION OF THE PRETRIAL JUSTICE INSTITUTE 32

org/Docs/Documents/Transcripts_Justice_ 79. Rothgery v. Gillespie County, 554 U.S. 191, Matters_508.pdf. 198 (2008) (internal quotation omitted). 64. Marie VanNostrand, Pretrial Justice – 80. Id. Afforded to Few, Denied to Many, at http:// 81. Id. at 213. www.luminosity-solutions.com/publications/ PretrialJusticeAffordedtoFewDeniedtoMany. 82. 481 U.S. at 754-55. pdf. 83. Id. at 755. 65. ABA Standards, supra note 22, Std. 10-1.1, 84. 342 U.S. at 5 (internal citation omitted). at 36. 85. In addition to granting a right to bail, at 66. 481 U.S. 739 (1987). the time of the decision Rule 46 also required 67. Id. at 755. the bail bond to be set to “insure the presence of the defendant, having regard to the nature 68. See e.g., Marie VanNostrand, Alterna- and circumstances of the offense charged, the tives to Pretrial Detention: Southern District weight of the evidence against him, the finan- of Iowa – A Case Study (June 2010) (in which cial ability of the defendant to give bail and the that district undertook system improvements character of the defendant.” 342 U.S. at 6 n. 3. to use “alternatives to detention when appro- priate to increase pretrial release rates while 86. 342 U.S. at 4 (internal citations omitted). assuring court appearance and public safety”). 87. See Marcus, The Making of the ABA Crim- 69. Beck v. Ohio, 379 U.S. 89, 91 (1964). inal Justice Standards, 23 Crim. Just. No. 4 (Winter 2009). 70. NAPSA Standards, supra note 29, Std. 2.2 (d), at 27. 88. June Carbone, Seeing Through the Emper- or’s New Clothes: Rediscovery of Basic Princi- 71. Id. Std. 2.2 (d) (commentary), at 30 (foot- ples in the Administration of Bail, 34 Syracuse note omitted). L. Rev. 517 (1983) at 531 (quoting 5 American 72. ABA Standards, supra note 22, Std. 10-4.3 Charters 3061, F. Thorpe ed. 1909) (footnotes (c), at 92. omitted). 73. Id. (commentary), at 96 (footnotes 89. Id. at 532. omitted). 90. Fullerton v. County Court, 124 P.3d 866, 74. See Douglas L. Colbert, Ray Paternoster, 870 (Colo. App. 2005). and Shawn Bushway, Do Attorneys Really Matter? The Empirical and Legal Case for the Right to Counsel at Bail, 32 Cardozo L. Rev. 1719 (2002). It is noted that, at the time of the study, the court used the services of a neutral pretrial services representative, who made a recommendation regarding a bail bond. 75. Id. at 1783. 76. 342 U.S. 1, 4 (internal citation omitted) (emphasis added). 77. Id. at 7-8 (concurring opinion). 78. 481 U.S. 739, 755 (1987).

GLOSSARY OF TERMS