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Chapter 2
Pretrial Release and Diversion
Pretrial Services
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Pretrial Services is a department with two overlapping
functions:
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Assisting the court with release/detention decisions.
Supervising those persons conditionally released on bond so they
appear at their next court date.
The pretrial release decision is the defendant’s release
from jail for the purpose of securing appearance at the
next court proceeding.
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Pretrial release allows the defendant to remain in the community
and work as a productive citizen.
LO: 1
History of Pretrial Release
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The Manhattan Bail Project in 1960 began to assist
judges in identifying defendants who could be released
on their own recognizance (ROR).
2 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.
LO: 1
The Pretrial Release Decision
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Most states use a quantitative point system to assess
risk and need factors for the pretrial release system.
The federal system utilizes an interview and
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.
LO: 2
The Pretrial Release Decision,
Con’t.
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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.
LO: 2
Types of Bonds
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Unsecured bond
Release on recognizance
Conditional release
Surety bond
Full cash bond
Property/collateral bond
LO: 2
Characteristics of Pretrial
Releasees
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A 2006 study revealed that females over 40 years old
with 1 or no misdemeanor convictions who were
employed with some college education were most
likely to be released on bond.
Persons with mental illness were considered for
release due to better service availability in the
community.
LO: 3
Recent Trends in the Federal
Release Decision
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Despite the changes that were made to reform
bail in the 1960s and keep people out of the
system, there seems to be a growing trend toward
an increase in federal pretrial detention once
again.
Pretrial detention rates have been steadily
increasing in the federal system since 1992 to the
present time, and now comprise over 60% of
defendants.
LO: 2
Pretrial Supervision
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Most state and federal felons released on bond have some sort
of pretrial supervision.
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Only 2 out of 10 defendants evaluated are recommended for
supervision.
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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.
LO: 1
Pretrial Supervision, Con’t.
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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 or motor
vehicle theft the most likely to commit new felonies,
but more likely to appear for court.
LO:4
Failure to Appear
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Defendants who failed to appear (FTA) did not attend their
court date and seemed most likely to flee the day before their
trial, hearing, or just prior to surrendering themselves.
Jurisdictions following up for failure to appear have decreased in
recent years.
1 of every 4 local defendants was unsuccessfully terminated,
usually for repeated non-appearance.
Many pretrial programs lack funding to track FTA rates, and
71% have no means to track rearrest rates.
LO: 3
Reducing Failure to Appear
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87% of pretrial programs reminded defendants of their
upcoming court dates.
A study by Goldkamp and White (1998) failed to
demonstrate that varying degrees of notification and
deterrence made a significant difference in FTA and
rearrest.
Pretrial services officers submit a report to the
sentencing court regarding the defendant’s compliance
with bond conditions.
LO: 4
Diversion
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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.
LO: 3
Candidates for Diversion
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Diversion programs provide services for three
types of individuals:
1.
Youthful or first-time adult offenders
2.
Persons with special needs, such as mental
illness
3.
Persons who require treatment for a problem,
such as drug or alcohol abuse
LO: 3
Drug Courts
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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.
LO: 5
Assumptions of Drug Courts
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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, prosecutor, defense attorney and
probation officer play a non-adversarial role.
LO: 5
Gender and Drug Court Treatment
Strategies
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Drug courts might not adequately address
gender or cultural issues.
Women and men have different reasons for why
they abuse drugs, use different drugs, and have
different use patterns.
Michigan, California and New York have
developed separate programs for men and
women.
LO: 4
Evaluations of Drug Courts
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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.
LO: 5
Mental Health Courts
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An indigent person who is mentally ill but
poses no danger to public safety may benefit
more from mental health and social services
than from the criminal justice system.
A team approach is used, consisting of a judge,
a treatment provider and a pretrial services
officer with special training.
LO: 5
Criticisms of Diversion Programs
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One criticism of diversion programs overall is a
lack of clarity about the best course of action if
a participant fails to complete the requirements
of a program.
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A second critique of diversion programs is that
they may be perceived by average citizens as
absolving the defendant of responsibility.
LO: 5