Sunday, July 28, 2013

Bail and One's Right to It

A Transcendent Pretrial Decision

It’s an issue that simply does not come up that often: “When a state constitution says that there is no right to bail if someone commits murder or treason “when proof is evident, or the presumption strong,” who must carry that burden – the defendant or the prosecution? Indeed, in a well-regarded treatise on criminal procedure, the issue warrants only two lines of text and nary a footnote. Nevertheless, in an opinion dated June 25, 2013 (Fry v. Indiana, No. 09S00-1205-CR-361), the Indiana Supreme Court not only decided the case correctly, it did so with an opinion that transcends the legal issue, providing a glimpse into the sort of knowledgeable court decisions we might soon expect in this latest generation of American bail reform.

The holding is simple: for one hundred fifty years in Indiana, defendants facing either murder or treason charges have been required to first show that proof is not evident, or the presumption is not strong to be entitled to bail. Now, wrote the Court, “we hold that  . . . the burden lies with the State to show that ‘proof is evident, or the presumption strong.’” The Court’s rationale is strong and sound, and based on a number of well-reasoned factors, such as an inherent unfairness attaching to a somewhat inscrutable requirement that the accused, “saying there is and should be no evidence, should go into the wide world in search of that which he says does not and should not exist.” Indeed, the Court wrote, given that a primary benefit of bail is that it permits the unhampered preparation of a defense, requiring an incarcerated defendant to “disprove the State’s case pre-trial in order to earn the right to be unhampered by incarceration as he prepares to disprove the State’s case at trial” is a “backwards process” with “no valid justification.”

But despite the narrow issue, the opinion is exceptional for three reasons. First, it includes frequent and forceful references to the presumption of innocence (e.g., “we find the contrary procedure used in the past to be incompatible with the fundamental guarantee presuming an accused’s innocence until proven guilty beyond a reasonable doubt;” it “flies in the face of the principle that the presumption of innocence abides in the accused for all purposes while awaiting trial.”) Such statements are appropriate retorts to those who have recently attempted to downplay the presumption of innocence at bail, often for political reasons or monetary gain.

Second, when faced with the prosecution’s argument that the burden should not be changed because “defendants have carried this burden in Indiana since 1866,” the Court bluntly wrote: “For one thing, ‘because that’s the way we’ve always done it’ is a poor excuse – the merits of stare decisis notwithstanding – for continuing to do something wrong.” Across America, criminal justice decision-makers are being faced with strong arguments to improve bail practices. In some cases, those practices have spanned 100 or more years and have loyal adherents who oppose improvements simply because “that’s the way we’ve always done it.” Those decision-makers should be heartened by a state supreme court willing to confront the argument using little more than common sense.

Third and finally, in deciding the more detailed parameters of the burden of proof, the Court intentionally noted (state supreme courts do nothing casually) a recent policy paper from the Conference of State Court Administrators, which advocates revisions to bail laws that support risk-based over money-based practices, promote nonfinancial release options, and reduce reliance on bail schedules in favor of more evidence-based risk assessment. The Indiana Supreme Court wrote: “To attain greater success at incentivizing appearance at trial, enhancing public safety, reducing costs of pre-trial custodial detention, and achieving greater economic equity and fairness in the availability of release from pretrial detention, there is growing interest and exploration of pre-trial release programs based on evidence-based practices as an alternative to monetary-based bail. Our opinion today should not be read to limit the availability of such practices in Indiana.”

There are numerous bail practices that are simply wrong and backward and that require remedy. As the Indiana Supreme Court noted, sometimes these practices are 150 years old, and locked into place not only by custom and habit, but also by such bedrock legal principles as stare decisis. The Indiana Supreme Court’s opinion, however, provides encouragement that remedies are nonetheless possible. The opinion should be a wakeup call to those who believe the courts will not engage in the struggle for pretrial justice. And to those currently in that struggle, the opinion should bolster their resolve by providing a courageous and knowledgeable example of incremental pretrial reform.       

Thursday, July 18, 2013

Restorative Pretrial Justice

In a recent Aspen Daily News Story, Man’s Felony Dismissed After Participation in Innovative Judicial Approach, found at, the paper tells of a man charged with extortion of a Latino couple after a car accident. The “innovative approach” is called restorative justice (or sometimes reparative justice) and has actually been around since the mid to late 1970’s. It’s based on a novel concept of addressing the needs of the victim, the community at large, and the defendant to address wrongs as an alternative to the traditional legal system that focuses on offender punishment and abstract legal responsibility, with victim and community considerations often receiving nothing more than lip service. Restorative justice looks at who has been harmed in a given situation, and sets out to restore those persons to a place before the harm took place.

What makes it “innovative,” I suppose, is the fact that prosecutors rarely get elected employing the practice; a lot of them still believe (incorrectly) that the public is fixated on punishing wrongdoers at the expense of nearly everything else, and so restorative justice is rather slow to catch on. Nevertheless, this story provides hope that certain enlightened prosecutors (or at least one of them) are willing to give it a try.

Moreover, there is beginning to emerge some pretty decent research showing that restorative justice has positive effects. In one meta-analysis of restorative justice research (the highest quality of “evidence” in an evidence-based decision making model), Latimer, Dowden, and Muise (2005) reported the following:

“Despite some methodological limitations, the results provided notable support for the effectiveness of these programs in increasing offender/victim satisfaction and restitution compliance, and decreasing offender recidivism.”

Of course, one of the main “limitations” is what’s called “self-selection bias,” due to the fact that the restorative justice process is, by its nature, a voluntary one. Random assignment of offenders to control and treatment groups will almost always undermine the foundations of the process.

Nevertheless, the restorative justice hypothesis has enormous potential based simply on logic and fairness, which is why I applaud the prosecutors in Aspen, D.A. Sherry Caloia and Deputy D.A. Andrea Bryan, for deciding to try it out. For too long we have thought that our adversarial court process has been the best process for righting wrongs. We are taught the adversarial process in our law schools and we praise it in our college civics classes. But for those of us who have been in its trenches, we have seen that the process needs a bit of work. Restorative justice, at least, gives us an alternative.     

Monday, July 8, 2013

Colorado's New Bail Law

In case anyone is wondering, here's a fairly detailed paper explaining Colorado’s new bail law. It’s not necessarily the best law, or a model law, but it’s a heck of a lot better than the one we had before!

Happy reading!