Academic journal article Federal Probation

U.S. Pretrial Services: A Place in History

Academic journal article Federal Probation

U.S. Pretrial Services: A Place in History

Article excerpt

[The following article originally appeared in the September 2012 issue o/Federal Probation, where it was part of a Special Focus section on the 30th anniversary of the Pretrial Services Act of 1982.]

ON SEPTEMBER 27, 1982, President Ronald Reagan added his signature to those of Speaker of the House Thomas O'Neill, Jr., and Senate President Pro Tempore Strom Thurmond to "An Act to amend chapter 207, Tide 18 United States Code, relating to pretrial services." Thus was created the legislation known as the Pretrial Services Act of 1982, which established pretrial services functions "in each judicial district... under the general authority of the Administrative Office of the U.S. Courts."

The Act culminated efforts to correct inequities in bail-setting practices, ensure the release of those who demonstrated ties and favorable background, and establish use of alternative conditions to cash and surety requirements. Despite the significance of this legislation, the fanfare accompanying its passage was probably limited to the offices of the then-existing 10 demonstration sites and of those who had long championed the cause of bail reform. In retrospect, however, the authorization of a nation-wide system of federal pretrial services agencies was vital to ensuring equal and just treatment for all persons charged with federal offenses. How could a system, upon experiencing the objective input of defendant data as well as the careful oversight of imposed conditions, return to the dark ages of insufficient information and limited release options? The Act promised federal magistrate and district court judges throughout the country an enhanced ability to make truly informed decisions regarding the prospects of pretrial release and to more carefully adhere to the promises of the Eighth Amendment.

Antecedents

Similar to author Joseph J. Ellis's description of the American Revolution in his book, Founding Brothers, the Bail Revolution that commenced in this country in the 1960s can be seen as both unlikely and yet inevitable. Unlikely in that the knee-jerk requirement of mandating that cash, bonds, or property be posted in exchange for pretrial freedom was an institutionalized practice for nearly 200 years. Bond amounts tended to be based solely on the severity of the charged offense; although in many instances even those charged with minor offenses were held on exorbitant sums. The system took comfort from detaining defendants, as residence in the local jail would ensure that defendants were available for future court appearances and eliminate the possibility of additional criminal charges while the defendant was in release status-a potentially embarrassing prospect for the judge who permitted release.

Viewed from another perspective, however, bail reform nonetheless was inevitable, because greater awareness had been generated about the consequences of existing excessive, unequal, and discriminatory bail-setting practices. The quest for equal justice in release decisions was compromised in at least three distinct ways. First, research documented that those held in custody were more likely than those released to the community to be convicted and, once convicted, would receive harsher sentences. Second, those with monetary assets were ensured release, while the indigent remained detained to populate the local jails-thereby making wealth the sole determining release factor. And finally, private individuals, known as bondsmen, were empowered to become the deciding, unreviewable authority as to who would be released and who would remain in custody. Recognizing the effect of these developments on pretrial justice demanded an innovative approach to bail consideration. Although thinkers of the past lamented those accepted practices, someone had to step up to institute a revolution of change.

Enter Vera

One of the most decisive steps toward launching the Bail Revolution came from an outside catalyst, Louis Schweitzer, a retired chemical engineer who toured the Brooklyn House of Detention in 1961. …

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