The Bail Report from AboutBail sent me an email with the title, “9 Truths About Pre-Trial Release.” They sent me the same thing a few years ago, and I replied the same way I’m replying today – by giving them a tip about how they should define their terms.
The 9 Tips thing starts by defining “Pretrial Release” as: “normally a local government entity that releases criminal defendants from jail at no cost to the defendant.” Actually, folks, pretrial release is the release, pretrial, of a criminal defendant – period. Pretrial release is the opposite of pretrial detention, and it can happen in a variety of ways, from release using no money whatsoever to release using a secured bond that’s facilitated by a commercial bail agent.
For some reason, early on a few people in the commercial bail industry got into the habit of calling pretrial services agencies or programs simply “pretrial,” as a mostly derogatory word used in such sentences as, “pretrial sucks,” or “pretrial is a criminal welfare program.” Some, like AboutBail, have added the word “release,” but they all mean the same thing. What they mean is a pretrial services agency or program. But calling those agencies or programs simply “pretrial” or “pretrial release” causes only confusion. Most everyone in America who knows anything about bail – including judges, researchers, law enforcement, and other criminal justice types – will just give you blank stares if you start talking about how bad “pretrial release” is, especially when you really mean an agency or a program.
So if you’re a bail agent, please don’t go into to some state and say you don’t like “pretrial,” or that they should get rid of “pretrial release” when you’re really talking about a pretrial services agency or program. Like I said, if you say you don’t like pretrial release, everyone will look at you like you’re crazy, and for good reason. In fact, there’s probably a part inside each of you that’ll cringe too because, deep down, you all like pretrial release too.
Pretrial release is woven into the fabric of American law. It came to us via some really big English jurisprudential developments including the Magna Carta, the Statute of Westminster, the Habeas Corpus Act, the Petition of Right and the English Bill of Rights. At the very least, it deserves an accurate definition.