What happens before a trial – mostly done by police, prosecutors and sometimes judges

Pretrial procedures are important because majority of criminal cases are resolved informally

Police may decide not to forward a case Charges can be dropped or dismissed by the

prosecutor Plea bargains can be made by prosecutor and

defense Competency hearings in front of judges

Bail: money or some other assurance provided to the court that the defendant will appear at every stage in the criminal justice process.

Types of bail: surety bail, ROR – release on recognizance

Purpose: obtain release from custody for defendant

If defendant fails to appear, bail is forfeited and person is confined in jail until court appearance

Bail bonding agencies: Provide sureties, or bonds, for those who

cannot afford the bond Receive a fraction of the bond as profit for

their work If bailees appears in court, bonding agency

gets its money bond back from the courts If bailees jumps bail and cannot be found,

bonding agencies loose their bond

Bounty hunters: Employed by bonding agencies to track

down and return bail jumpers, so agencies can get their bond back

Bounty hunters have legal powers to arrest and detain which vary from state to state

Normally licensed by the state

Current data indicate about 2/3 of those arrested made bail

1/3 are held in custody 7 percent denied bail Murder defendants least likely to get

bail 1/3 of those released were rearrested

Notice the frequency of different types of bail Question: who receives what type of bail?

Purpose is to ensure appearance at trial, not punish

Cannot be arbitrarily denied or revoked Critics argue it is discriminatory/objectionable

Works against poor State pays to incarcerate people who would otherwise

remain in community Detainees receive longer sentences than those on bail Dehumanizing Racial/ethnic disparity Preventive detention

Pretrial services Created in 1960s to improve release and

detention decisions 1980s began to focus on identifying those

who were unable to make bail but would be acceptable risks for release

Today virtually all larger jurisdictions have pretrial release in one form or another

Pretrial services programs/responsibilities Provide information for judges to make

release decisions Assess likelihood of defendant failing to

appear or being rearrested Monitoring conditions of release or provide

intensive supervision Provide special services for those with

mental illness

The legal right to bail 8th Amendment prohibits excessive bail, it

does not guarantee a right to bail. Stack v. Boyle - If a crime is bailable, the

amount set should not be frivolous, unusual or beyond a person’s ability to pay under similar circumstances.

Those unable to post bail, themselves, family or through bondsmen, are held in pretrial detention until trial.

Release on recognizance (ROR) Pioneered by the Vera Institute of Justice,

Manhattan Bail Project in 1961 concluded that release based on verified

information was more effective than money bail

Federal Bail Reform Act of 1966 First change in federal bail laws since 1789 release should be under the least restrictive

method necessary

Federal Bail Reform Act of 1984 – mandated no defendant shall be kept in pretrial detention simply because they cannot afford money bail

Community safety and risk of flight considered – allows for preventive detention

Critics of bail reform argue emphasis should be placed on controlling the behavior of serious criminals

Defendants are held in jail based on the belief that they will commit new crimes while on release or flee jurisdiction or country

Allows for detention without conviction for the protection of the defendant and that of the community

Critics believe it is punishment prior to conviction.

Some state jurisdictions have incorporated element of preventive detention into bail systems Exclusion of certain crimes from bail

eligibility Definition of bail to include appearance in

court and community safety Limitations on right to bail for those

previously convicted

Schall v. Martin Preventive detention of juveniles is constitutional

because it is useful to protect the welfare of the minor and society as a whole.

United States v. Salerno Upheld 1984 Bail Reform Act’s preventive

detention provisions Preventive detention act had a legitimate and

compelling regulatory purpose which does not violate the due process clause.

Society’s need for protection outweighs and individual’s liberty interest.

Those unable or ineligible for bail are subject to pretrial detention.

Pretrial custody accounts for more incarceration than imprisonment after sentencing.

Normally held in jails if awaiting trial Jails considered the weakest link in the

criminal justice process – physical and operational conditions

Effects of detention (no bail) Disruption of normal life –work, family Less likely to prepare effectively for for their

defense Appear symbolically guilty when brought to

court (clothing, shackles, cuffs) More likely to be convicted Receive longer sentence than those released

on bail Less attractive plea bargains

Grand jury Traced to English common law Fifth Amendment Power to act as independent investigating

body Presentment True bill No bill

Grand jury (cont.) Controlled by the prosecutor Closed and secret deliberations

Neither accused nor public allowed to attend A rubber stamp for the prosecutor Grand Juries rarely disagree with the prosecutor Prosecutor need not reveal evidence that might

exonerate the accused Transcripts of Grand Jury hearings remain

secret

Preliminary hearing Used in about half the states as an

alternative to the grand jury to determine probable cause

Open hearing conducted before a judge Rules of evidence apply Judge makes decision on whether to bind

over for trial Defendant may waive the hearing

Arraignment Occurs after the indictment or preliminary

hearing Filed in the court with jurisdiction to try the

facts of the case Defendant informed of charges and has

counsel appointed if necessary Defendant enters a plea

Guilty plea results in date being set for sentencing If pleading not guilty a date is set for trial

Types of pleas Not Guilty: verbally stated by defendant or

entered by court if defendant refuses to answer Nolo Contendere: (no contest) defendant does

not admit guilt but agrees to accept punishment A nolo conviction cannot be used in a civil trials against the

defendant

Alford plea: admits that prosecution has enough evidence to convict by maintains innocence

Guilty: defendant admits criminality

Most common practice in the criminal court system to resolve cases

Who bargains? Prosecutors – it is a win, a conviction; good record Defense – the clients gets less punishment Role of the judge – has to agree to the bargain; can

reject bargain made between prosecutor and defense

Defendants typically does not participate in the bargaining

Some states allow victims to participate in a limited way

Types: what is the bargain about? Charge bargaining:

Reduction of initial charges (e.g., from felony to misdemeanor)

Reduction of the number of charges, drop charges Sentence bargaining:

Recommendation for a lighter sentence to the judge Recommendation on which judges will decide

the case and sentence; some judges are more lenient than others for certain types of offenses (e.g., domestic violence, drug offenses)

Notice that only murder is plea bargained for less than 50% of all cases

Why bargain in the first place? A necessity because a of resource constraints:

prevents further overcrowding of courts Without P-B courts would grind to a standstill

Exercise professional skills: the outcome is the correct one and a certain conviction (avoids the uncertainty of a trial)

Correct outcome = the worth of a case Avoids factual and legal weaknesses of a case and

still leads to a conviction (defendants give up their due process rights when they plead guilty)

Other benefits Costs of prosecution reduced Efficiency of courts improved Defendant avoids lengthy pretrial

incarceration and may receive a reduced sentence

Resources devoted to cases that need greater attention

Prosecution devotes more time to serious cases

Opposition to plea bargaining Encourages defendants to waive their

constitutional right to a trial Dangerous offenders may receive lenient

sentences and insufficient punishment (as perceived by victims and the public)

Innocent people may plead guilty if they believe the court is biased and they have little chance of acquittal or to avoid the possibility of harsh punishments

Opposition to plea bargaining (cont.) Prosecutors may induce or compel defendants

to plead guilty A “guilty plea culture” develops among defense

attorneys. guilty pleas to “wrong” offense (e.g., if charge is

reduced from felony to a misdemeanor, offenders end up pleading to something they have not done –if charge was properly constructed)

Can encourage prosecutor misconduct – multiple charges

Legal issues Defendants are entitled to effective assistance of counsel. Plea must be made voluntarily and without pressure. Innocent persons can plead guilty to gain a lenient sentence. Both the prosecutor and defendant must honor any promise

made. Prosecutors may not threaten to indict defendants on more

serious charges if they do not plead guilty. Statements made during negotiations may be used against

defendant. Consequences down the road which offenders who plead guilty

are not aware of or informed about (e.g., three strikes implications)

Issues (cont.) The impact of sentencing guidelines

Do they eliminate bargaining Prosecutors and defense know what sentence a

judge has to impose Does bargaining fit a Supermarket or a

Bazaar model? How much bargaining actually goes on?

Supermarket – the prize, punishment, is posted Bazaar – the outcome, punishment, depends on

haggling and skills

Factors affecting the prosecutor’s decision in plea bargaining Nature of the offense Defendant’s prior record and age The type, strength, and admissibility of evidence in the

case Attitude of the victim Public opinion Skills of the defense attorney Intangible factors Informal long term relations in the court working group Calendar pressures

Defense attorney’s role Convey plea bargaining offers: “I can get you…” Provide expert advice: “this is the best you can

get…” Ensure the defendant understands the nature of the

plea bargaining process and the guilty plea Make sure defendants understand the alternatives

available to them Must communicate all plea bargain offers to client Must abide by the wishes of the defendant to plea

bargain or not

Judicial participation in plea negotiations are not advisable because: Creates impression on defendant that he/she could

not receive a fair trial Lessens the ability of the judge to make an

objective determination of the voluntariness of the plea

Is inconsistent with the theory behind the use of presentence investigation reports

May induce an innocent defendant to plead guilty because s/he is afraid to reject the disposition desired by the judge

Victim’s role Some argue process is too “victim driven” Other argue the victims are relegated to a

secondary role with no influence Victims do not have a right to veto a plea

bargain Most agree prosecutor should confer with the

victim In some states, victims can voice their

opinions on a proposed plea bargain with the prosecutor

Suggestions for reform Eliminate it – Is it possible?

The myth of Alaska: plea bargaining was not abolished

Oversight of negotiations, by whom? Guidelines to identify suitable types of cases and

offenders Victim participation in plea-bargaining

negotiations Review of prosecutor’s decisions Written documentation of need and acceptability

for a plea bargain in any given case

Designed to remove cases from the formal criminal justice process Avoids stigma of conviction Reduces costs to the system Alleviates jail and prison overcrowding

Danger of “net-widening” Research indicates programs may result

in reduced recidivism for some offenders