Pretrial Supervision

Following arrest on a criminal charge, a suspect may be released from jail dependent upon two factors. First, the defendant must be a low risk of flight. In other words, the court needs to be assured that the defendant will appear at all future court proceedings. Some factors that increase the likelihood of a defendant's return to court are forfeiture of passport, strong ties to the community, no current warrants on other criminal matters, and no previous history of failure to appear for court proceedings. Second, the defendant must be a low risk of harm to him- or herself and others in the community. If the accused is suicidal, then pretrial release may not be the best option at that time. If the defendant has a high likelihood of violence, a history of absconding while under court supervision, or unsuccessful behavior while previously on court supervision, others in the community may be at risk. The defendant's past behavior is a strong indicator of the defendant's ability or inability to follow the conditions of pretrial release while awaiting trial.

How does a judge determine who is suitable for pretrial release and who should be detained pending trial? In the federal system, a pretrial services officer or probation officer interviews the suspect regarding past criminal history, substance abuse, family ties, the amount of time he or she has lived in the area, mental and physical health, and finances. Since the defendant is presumed innocent at this stage, the interviewing officer cannot ask questions about the current offense; however, the seriousness and the penalty associated with the crime are taken into consideration. The interviewing officer then attempts to verify as much of the information as possible that was received from the defendant. This is done through criminal records checks, interviews with law-enforcement officers, and conversations with family members, employers, and others who are well acquainted with the defendant. After gathering and verifying as much information as possible, usually in a very short time frame, the pretrial officer prepares a report for the judge summarizing the strengths and weaknesses of the defendant. The pretrial officer also makes a recommendation as to the suitability of the defendant for release. Finally, if the pretrial officer recommends pretrial release for the defendant, the officer will recommend conditions to ensure the safety of the victim or victims, community, and defendant.

A defendant who is released from custody pending trial may be required to post bail, be under the guidance of a third party custodian, and/or follow specific conditions that will then be verified by a pretrial officer. The conditions for release from custody pending trial can take many forms, such as a cash deposit, percentage bail, unsecured bail, signature bail, and release on own recognizance (ROR). Indigent defendants, if released, are typically released on their own recognizance or released on a [Page 321]signature bond. If an indigent defendant is unable to post bail, he or she may require the services of a bail bondsperson.

Studies suggest that not all types of defendants receive the same consideration for pretrial release. Females and younger defendants are most likely to be released from jail pending trial. With regard to race, it has been said that Hispanics face a triple burden at the pretrial release stage. That is, they are the group most likely to be required to pay bail to gain release, the group that receives the highest bail amounts, and the group least able to pay. This is particularly disturbing, as one who is denied bail tends not to fare as well in the pending criminal case as do counterparts who were released on pretrial supervision. When comparing detained defendants to those released on pretrial supervision, researchers have found that the detainees are more likely to be convicted of the charged offenses and to receive harsher punishments. Therefore, being granted pretrial release not only is a convenience and a comfort for the accused but also may be a factor in the disposition of the case.

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