Friday, June 13, 2014

Bail Terms and Phrases

I've been talking about getting Americans all together with their use of terms and phrases dealing with bail for quite some time. Here are a couple of examples of improper usage of bail terms -- one pretty easy, and one a bit more complicated.

First the easy one, which was recently published by a commercial bail bonding newsletter in an article titled, "Nine Questions Answered About Pretrial Release." Pretrial release? Excellent, we must be talking about the release, pretrial, of a criminal defendant, right? Nope. They're actually talking about pretrial services programs, agencies, or organizations, which are entities that are typically government run, but sometimes are private, and which provide services to courts including: (1) information gathering, including pretrial risk assessment of defendants; (2) recommendations to help judges with the release and detention decision; and (3) supervision for court appearance and public safety concerns. As far as I know, it's only the commercial bail industry and those who blindly repeat their claims that use the term "pretrial release" (or sometimes, just "pretrial") to mean these particular programs. Most state laws, and most people operating under those laws, are pretty good about figuring out the nuances between proper and improper terms and phrases, and therefore don't make this very basic mistake.

Whether done purposefully or not, equating pretrial release with these entities causes confusion and can actually hurt the bondsmen on the street, who are likely hoping that their industry newsletter will instead be giving them information that helps. I can't tell you how many events I've attended where some well-meaning bondsman says, "we're against pretrial release," or "we don't like 'pretrial,'" and the whole room looks at him like he's crazy. Judges and attorneys, for example, consider pretrial release to be exactly that -- the release pretrial of a criminal defendant with conditions designed to provide reasonable assurance of public safety and court appearance. One of those conditions might be pretrial supervision by a pretrial services entity, or one could be money, which is perhaps where the bondsmen come in. So here is a softball for the bail industry: at least start using this particular term correctly so that your constituency can be clear about what they are talking about. After all, I'm pretty sure that those constituents support the pretrial release of defendants, also known universally and historically as bail.

Now the harder one, which involves the more frequent misunderstanding between "bail" and money. In a recent article in New Hampshire, the headline read, "Bail for former councilor reverted to PR." To know what this means, we have to know what New Hampshire means by both "bail" and "PR."

Looking at the New Hampshire bail statute, you'll see a pretty decent section dealing with methods of release and detention, which include release on personal recognizance, release on a condition or conditions, and temporary and complete detention. So far, so good -- it looks a bit like the federal statute, which is a pretty decent statute in terms of defining things correctly and avoiding the especially confusing term of "bail." But then the New Hampshire statute lists various conditions, which include "furnishing bail" for the defendant's appearance. It also speaks of the "amount of bail," which is a pretty clear indication that New Hampshire equates bail with money. On one local attorney's website, things even get a bit more complex, as that attorney says there are three basic types of bail in New Hampshire, a PR amount, a cash amount, and a surety amount. To him, bail is still money, even though he would probably disagree with the usage in the headline.

The problem here, and in many states, is that bail is not money. Instead, when you research the history of bail as well as the law intertwined throughout that history, bail is best defined as a process of release, and money is merely a condition of that release -- a financial condition, or limitation on pretrial freedom, that must be assessed for lawfulness and effectiveness in any particular case. I have recently written a pretty long document explaining this, and so I won't go into detail. But I will say two things about bail defined as money. First, I have found that when states go so far as to actually define bail as money, they are not only at odds with the history of bail and the fundamental legal principles underlying the bail process, they are also at odds with most of the other states, the United States Supreme Court, the understanding behind the national best practice standards on pretrial release and detention, and virtually all of the best and most recent definitions of bail. Second, and more importantly, I have found that when a statute defines bail as money, it is a symptom of a legal scheme that is overflowing with money in most of its other provisions.

Colorado had such a scheme. Bail was defined as money, and therefore it included a number of sections that took money for granted, instead of treating it like any other condition of release. Our statute was flawed, and our court opinions, based on that statute, were also flawed. After a year of studying bail, however, our state crime commission recommended changes to the statute, which included changing the very definition of "bail" so that it was not equated with money. The best statutes in America simply articulate things in terms of release and detention. Indeed, these days, "typing" a bail bond based on how it uses a single condition of release -- money -- such as by calling it a PR bond, a surety bond, or a cash bond, is antiquated. It would be like calling it a "drug testing bond," or a "GPS" bond, if you understand what I'm getting at. Money used to be the only condition of release -- from about 500 AD to about 1960 -- but that's not true any longer.

So maybe the headline is somewhat understood by people in New Hampshire, but it's still really confusing for a majority of people in America, who would, instead, correctly say, "Even if someone is on a personal recognizance bond, he or she is still being released through the bail process." Based on the most recent pretrial research on risk, I have a feeling that the rest of the New Hampshire statute may need other amendments. My only comment today is that when looking into those amendments, the people of New Hampshire might want to research the proper use of certain terms and phrases.

Pretrial justice is like reading a book. It helps if we are all on the same page. And that includes the words we use.