Contemporary Pretrial Release in regard to Crime and Prevention

Contemporary Issues In Crime and Prevention CJS 111
Written By Andrew Marocchini

This paper will focus on pretrial release and how it relates to contemporary crime control and prevention in Connecticut. It has been a hotly contested subject, which has had much political and media discussion over the past several years on both a national and local level. Our own governor has made judicial reform one of his primary initiatives and usually refers to it as Second Chance in his proposed legislation and policies. Interesting that it’s seldom mentioned and seeming not even a consideration in any of the judicial reform propositions of how these changes will affect victims (a discussion for another paper), crime control and prevention. The proponents of this bail reform usually refer the issue of indigent, minorities or a combination of the two being stuck in jail simply for the fact they do not have money. This is a blatantly liberal agenda which even found its way into our textbook. What was found to be true is that regardless of their social stature or ethnicity, they were habitual criminals 77% of which have 3 or more prior convictions.

Pretrial release occurs when a defendant is released from jail while the criminal case is pending, sometimes on a bond. A bond is a contract where a defendant pays to get out of jail. There are 5 types of bond release methods in Connecticut:

1) Promise to Appear(PTA) the defendant is released on their own recognizance and is the most common method in Connecticut.

2) Non-surety a denomination put on the release allowing the court or police department to call it a bond. However, no money is paid or collected upon forfeiture effectively making a non-surety a PTA.

3) Cash or Surety a bond amount is specified and the defendant must post the money or sufficient surety (aka bondsman).

4) Cash only a bond amount is specified and must be posted in full and in cash. This is the most restrictive bond type and is often “mis-used”. It was eliminated from CT law in July of 2017 but some judges continue to use it.

5) 10% Cash Option a bond amount is specified but 10% is paid directly to the court.

Connecticut also has many diversionary programs: Accelerated Rehabilitation (AR), Alcohol Education Program, Drug Education Program, Community Service Labor Program, Treatment of Drug and Alcohol Dependent Offenders in Lieu of Prosecution, Family Violence Program, Mediation/family Relations Office, Alternative Incarceration Program (AIC), Youthful Offender Program, School Violence Prevention Program and various test programs. Some states as well as Connecticut considered to enact reform following the federal system a combined method of PTAs and preventive detention which our text seems to be in support of. Ultimately, it was determined that CT already having many forms of pretrial release, has resulted in a combination of methods that have resulted in the gold standard of the country statistically.

Now that we have had a brief introduction to pretrial in CT, you must be wondering, what is the correlation between pretrial and crime control/prevention? I’m not so sure it has any effect on control depending on the definition used, but does regarding prevention for the short-term. Even preventive detention had little effect on crime control because very few defendants truly absconded or reoffended while out on bail. This is old national data and seems a bit counter intuitive to me but seems to be true. Connecticut also had a study regarding reoffending. The study found that of the 16,286 people released from state prisons in 2005, nearly 64 percent were arrested again by 2008. It also demonstrated that CT performs much better than 75% national average for recidivism for less than 3 years. Unfortunately, the study fell short of examining defendants on pretrial release. Anecdotally, I can tell you it’s a very small percentage of clients released on surety bail that reoffend which is in line with the BOJ study mentioned previously. I have a FOIR request pending but it will most likely not have the information in time for the report.

There is an argument that some forms of pretrial release effect the prevention of crime. This will vary depending on the types of crimes the accused is charged with, of course. For example; A drug addict will be significantly more likely to reoffend than a drug dealer, in my experience. Using 2008-2010 data from a national study, we find 19% of defendants released pretrial, committed some form of pretrial misconduct which could be a violation of some type of condition. Technical violations were committed by 17% of defendants released prior to case disposition, while 1% of released defendants failed to make court appearances and 4% were rearrested for new offenses. 4% stands in stark contrast to the 64% that reoffend within 3 years, in Connecticut. Admittedly there are many factors and caveats that must be taken into consideration when looking at post and pretrial statistics.

The premise of innocent until proven guilty and limited excessive bail is a fundamental part of United States jurisprudence, so much so, that our forefathers created the 8th Amendment which directly speaks to pretrial release known as bail at the time. When a defendant is released on any form of pretrial release, they are given the opportunity to prove themselves innocent or at least prove their worth to society. Giving them a chance to demonstrate why they deserve leniency if acquittal or a nolle is not possible. This must weigh heavily on those who have the cognizance of it and desire to have a good outcome for their case. For some defendants, just being told they need to show up to court is enough, but others more motivation is needed.

The oldest and most effective form, pretrial release, is when you have to post a bond specifically with a bondsman. The accused will have money on the line in addition to collateral provided, and family or friends will have cosigned making them liable for the defendants actions. This adds a significant motivational factor which is an ancient practice, but it works when done properly. In Connecticut, 8% of the defendants with felony charges released on Surety Bonds failed to appear versus 11% release on PTAs. When taken into consideration, \ only the highest risk defendants are given monetary bonds and very few reoffend, the effectiveness of bail can not ignored. I believe bail does have some ability to prevent crime by imposing accountability albeit a short time.

Oddly, when I attempted to find out information regarding the performance regarding the pretrial programs “Connecticut has invested so heavily in”, they were not available. After some investigation I found out that this data is conveniently not recorded for the programs. The programs simply record the number of defendants that successfully complete them, and those who reoffend of FTA are simply not included. It seems to me some of the alternative to bail forms of pretrial be in violation of the 8th Amendment and I suspect their performance is not so great… but I’ll have to leave that discussion for a different day.

The proponents of the Federal system will argue the combination of PTAs and Preventative Detention is the best choice based on the Thomas H. Cohen, J.D., Ph.D., Bureau of Justice Statistics study cited earlier in this paper. Unfortunately, I don’t have the Connecticut numbers to prove otherwise, yet, but we have outperformed the Federal system on every measurement of pretrial release deemed favorable to the defendant, and I’m not certain CT will out perform in recidivism during pretrial. What the reformers fail to acknowledge is the Federal system only releases 32% of the defendants on pretrial during the term of the study, meeting an astounding 68% held for the pendency of their case compared to the 7% held in Connecticut. Why such a difference? I speculate that when a judge or prosecutor has to recommend a PTA or Pretrial Detention, they will air on the side of detention if there is any hint of risk at all.

In closing, pretrial for a short time in some forms can prevent crime. However the reason it works has nothing to do with changing the disposition of the criminal. It has to do with imposing consequences and their own innate self-preservation. My theory obviously needs more support, but when taking into consideration that defendants compliance while on parole and probation are similar to that of defendants on bond for the first year, seems to support it.