AMERICAN BAR ASSOCIATION RELEASE STANDARDS: Who Does Them Best?
Part Two

By Jerry Watson


Recently I proposed taking a look at the American Bar Association's (ABA) suggested standards to be met in releasing an accused prior to trial and then reviewing the current release practices to see just which one approach best accomplishes each of the purposes established by the ABA.

Stating those standards to be met in each release again, they are: (1) make sure the due process rights of the accused are protected, (2) make sure the accused makes all of his scheduled court appearances, and (3) make sure the rights of the victims and the community at large are not put at risk.

In our first article we discussed the ABA Standards in general, and we examined the first requirement: that the due process rights of the accused be preserved. We talked about just how those rights, as they relate to bail, could be violated. We saw that the key here would be for the court to be certain that the conditions of release (the amount of bail as set, for example) not be more onerous than they ought to be. And we concluded that this requirement is exclusively in the hands of the court, and to some extend defense counsel who can always by way of proper motion have the release conditions changed if they are in fact egregious.

This brings us to the second condition which must be met which the Standards state as: "maintaining he integrity of the judicial process by securing defendants for trial." In layman's language this means: "Make sure the accused will come back to court when he is supposed to."

We need to remember here that we saw earlier on that the available methods of release pending trial fall neatly into one of only two available methods: "secured" and "unsecured". In a secured release the person will be monitored and gotten back to court by private businesswomen and men who provide insurance to the court that the accused will appear as directed. In an unsecured release in very low level charges the court may leave that "monitoring" solely to the accused who promises to the court that he will reappear or pay the bail amount. On the more serious unsecured releases the court will assign that oversight to the local taxpayer funded County Pretrial Release Agency.

So, in keeping with the purpose of this series of articles, we should attempt to answer here the question: Who does the better job of getting persons back to court, secured or unsecured release? We must remember that the ABA recommends that this is a major consideration for the judicial officer who sets the terms of each release.

Fortunately, we are by no means without resources in searching for the right answer to our question. Many credible studies have been done by highly qualified researchers seeking to answer this question:: Who gets an accused to court best?

For many years the Federal Bureau Of Justice Statistics gathered pretrial release data on a national scale, and one of their objectives was to determine which of the two methods, secured or unsecured releases, performed best in terms of meeting the ABA Standard of getting persons back to court for disposition of the charges against them. They would gather this information on many thousands of cases in one year, compile and compare one set of data to the other set and then in the next year they would publish their findings. So, every other year a report came out from the United States Government Printing Office and one could see for himself which approach performed best, secured or unsecured release. It was no surprise to persons familiar with the criminal court system that over many years, in every report, without exception, secured release outperformed unsecured release. Then a separate study was undertaken by the American Legislative Exchange Council in the four major California Counties. The result? Secured release outperformed unsecured release hands down. A national analysis was done by a well known researcher, Alex Tabbarok, on behalf of the University Of Chicago School of Law. The outcome was the same: secured release did by far the better job. What about local studies, where just the data of a single urban county was considered? That too has occurred. Just recently such research was performed in Dallas County, Texas by The University Of Texas. The results of this very thorough study were no different: secured release did the better job.

Remember that determining who is to bear the oversight responsibility of those released pending trial is up to the court making the release decision. The judge may elect to order the accused released unsecured, assigning the reappearance responsibility to the county government pretrial release agency. Or, that responsibility may be assigned to an insurance provider who puts up its own money which will be forfeited should that provider not have the accused properly before the court.

A very strange tension of sorts has arisen here. There are those today who are arguing that all releases should be unsecured. That is, they advocate eradicating the private sector bail insurance industry in favor of county sponsored "free bail outlets" which operations are funded with local county taxes. Why, one might ask, would anyone lobby in favor of government programs which are demonstrated to be inferior in performance to the private business secured release providers?

The answer seems to be one borne of ideology. Advocates for unsecured release government provided bail appear to be persuaded that it is not the fault of the accused himself or herself that they got themselves arrested. They got arrested, the theory must go, because they were somewhere back along the way "socially deprived". In other words, back there someplace, we the people did not provide that person with all he or she needed to prevent them from ending up in jail. If there is a fallacy in this reasoning, and there surely seems to be, then it must lie in the fact that it leaves no room for personal responsibility. I have lived long enough to see many of these persons in pretrial detention. I have even gotten to know some of them. I have found out that some of them, like me and others, were born in poverty to parents who picked cotton and chopped corn to make their living. Yet some of us ended up in jail and some of us didn't. This alone seems to suggest that a man will reap the good results of his honest thoughts and acts but that same man will also bring upon himself the painful results of his own wrong choices. Maybe the simple truth is that my good thoughts and actions can never produce bad results and my bad thoughts and actions can never produce good results. And at the end of the day, the choices are all mine. If that be true, how can it be the responsibility of the government (which, after all, is simply the people) to reward me for bad performance?

But all of that aside, and back to our original quest (to find out which release method works best), it would appear that we have the answer to the question: does secured or unsecured release work best in terms of getting persons back to court? The answer clearly is: secured release is best. And therefore, private sector commercial bail bonding is the method most aligned with the ABA Standard: "maintaining the integrity of the judicial process by securing defendants for trial."