Chapter 2Pretrial Release and Diversion

Pretrial Services Pretrial Services is a department with two

overlapping functions: Assisting the court with release/detention decisions Supervising those persons conditionally released on bond

The pretrial release decision is the defendant’s release from jail for the purpose of securing appearance at the next court proceeding Pretrial release allows the defendant to remain in the

community and work as a productive citizen

History of Pretrial Release The Manhattan Bail Project began to assist

judges in identifying defendants who could be released on their own recognizance

Two decades later, more than 200 cities had adopted similar programs

In 1984, the Federal Bail Reform Act added the safety of the public to the likelihood of appearance as a criteria for pretrial release

Most pretrial programs are funded by counties and administered by probation offices

The Least Restrictive Option Most states use a quantitative point system to

assess risk and need factors for the pretrial release system

The federal system utilizes subjective assessment of risk of danger and nonappearance for each defendant

Benefits of pretrial services include lower jail populations as well as allowing defendants to remain employed and assist in their own defense

The Least Restrictive Option, cont. The pretrial services officer assesses the

defendant’s social and criminal history, but not the weight of the evidence in the pending charge

The personal interview of each defendant by a pretrial services officer is recommended by the National Association of Pretrial Services Agencies

Programs that interviewed defendants and used objective risk assessment instruments had less crowded jails

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

Characteristics of Pretrial Releasees A 2006 study revealed that individuals with no or

only one misdemeanor conviction, employed, with some college education, more than 40 years old and female were more likely to be released on bond

Person with mental illness were considered for release due to better service availability in the community

Pretrial Supervision Most state and federal felons released on bond have some

sort of pretrial supervision Only 2 0f 10 defendants evaluated are recommended for

supervision Defendants on supervision are typically required to call in

weekly, comply with curfew, submit to drug testing, maintain employment and avoid contact with victims or witnesses

Federal pretrial services officers supervise an average of 35 defendants and assist in the preparation of the presentence investigation report

Pretrial Supervision, cont. 89% of the first violations of minor release

conditions result in a warning on the first occasion, while on a second violation 86% are reported to the court

Serious violations result in the issuance of a bench warrant, detention or bail revocation

Defendants on bond for murder, burglary and motor vehicle theft the most likely to commit new felonies, but more likely to appear for court dates

Failure to Appear Jurisdictions following up for failure to appear has

decreased in recent years One of every four defendants were unsuccessfully

terminated, usually for repeated non-appearance Almost half of all pretrial programs do not

calculate FTA or rearrest rates

Reducing Failure to Appear 87% of pretrial programs reminded defendants of

their upcoming court dates A Philadelphia experiment failed to demonstrate

that varying degrees of notification and deterrence made a difference in FTA and rearrest

Pretrial services officers submit a report to the sentencing court regarding the defendant’s compliance with bond conditions

Diversion Diversion is an alternative suspended sentence or deferred

adjudication program that gives first-time offenders a chance to address specific issues, and can result in a dismissal of charges

Treatment Alternatives to Street Crime and the Manhattan Court Employment project in the mid-1960’s were the first diversion programs

Diversion attempts to avoid the negative aspects of incarceration while providing rehabilitation in the community

Juvenile diversion programs seek to avoid “labeling”

Candidates for Diversion Diversion programs provide services for three

types of individuals:1. Youthful or first-time adult offenders and women,

2. Persons with special needs, such as mental illness,

3. Persons who require treatment for a problem, such as drug or alcohol abuse

Drug Courts Drug courts integrate outpatient substance

abuse treatment with criminal justice case processing

Charges are dismissed if the program is successfully completed

Failure or withdrawal from the program results in charges for the original offense

Assumptions of Drug Courts First-time drug offenders or low-level drug

users with a criminal record would be more likely to curb future drug use through treatment rather than punishment

The sooner the treatment, the better the result

The Judge, the prosecutor and the probation officer play a non-adversarial role

Gender and Drug Court Treatment Strategies

Research indicates drug courts might not adequately address women or minorities

Women and men have different reasons for why they abuse drugs, different drugs of use and different use patterns

Michigan, California and New York have developed separate programs for men and women

Evaluations of Drug Courts Research varies as to whether drug courts

save money, since noncompliance results in longer stays in jail

The GAO found that completion and retention rates varied by program and were lower than expected

Drug courts may not be applicable to all substance abusers

Mental Health Courts People with mental illness may appear

more deviant than criminal Mental health courts began in 1997 as a

means to deal with people who needed help more than punishment

A team approach is used, consisting of a judge, a treatment provider and a pretrial services officer with special training

Criticisms of Diversion Programs If a participant fails to complete the

program, the situation is unclear Evidence that may be inadmissible in court

results in diversion proceedings Diversion programs may not be widely

supported due to the unfamiliarity with the positive effects