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Sunday, July 15, 2012

Follow up on Pretrial Release Conditions

I've rec'd some interesting emails in response to the oped/post from yesterday on abusive pretrial release conditions.

Bryan Dearinger wrote to let me know of a paper he wrote about how Congress, in the context of sex offenders, has stripped away the judicial discretion to fashion appropriate release conditions. The paper notes that "a particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing." The paper is forthcoming. I haven't read it yet and in truth I didn't know about these provisions until Bryan mentioned them to me.  I have to say, I'm intrigued by but not persuaded yet by Congress' approach here. As a general matter, I like judges to be given guideposts and constraints, but I wouldn't say that a mandatory imposition of legislatively concocted conditions is the smartest approach unless there were various procedural safeguards in place along with some kind of check in place to ensure that the government's intrusions were minimally reasonable. Anyway, I look forward to reading Bryan's paper.

I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can't speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren't saying such restrictions on alcohol or curfew or drug treatmen were never reasonably imposed. Rather we were concerned that they sometimes aren't related to the crimes or the offenders but were still imposed.

To use one example that is in the news: George Zimmerman. His claim of self-defense in the killing of Travyon Martin may be wrong or correct. But his shooting of Martin had little to do with alcohol abuse and there's no reason to think that Zimmerman is specifically more likely to commit more crimes if he has access to any alcohol or if he's able to eat dinner at a restaurant or shop for groceries after 6pm.  The imposition of a curfew or alcohol restriction on him is entirely unnecessary in terms of how it facilitates substantial reduction in flight risk or crime prevention. Indeed Judge Lester's court order specifically states that he doesn't think Zimmerman's a risk to public safety. So that leaves flight risk, and there's no connection to flight risks from curfews or a glass of hooch. (I suppose if the thinking is that lots of alcohol might lead GZ to think it's a good idea to flea, but then Judge Lester should simply prohibit more than 2 drinks within X hours in the day.)

Obviously, if a defendant has a history of drug- or alcohol-fueled or related crimes, then restricting his access to such substances is more easily explained in terms of crime prevention or risk to public safety. I wouldn't have a problem with ensuring some kind of response to drugs or alcohol (treatment, testing, etc) in those contexts because of the putatively tight causal connection between the substance abuse and the various resulting crimes. But in Zimmerman's case, there was no established tie b/w alcohol abuse or a penchant for mayhem at night that would have required such restrictions.  As mentioned above, the judge stipulated that Zimmerman wasn't a risk to public safety. 

By the way, Zimmerman's counsel has now asked to have Judge Lester be disqualified from the case. The brief is here, and to my mind, has substantial weight. Curious for others' reactions on this. I doubt O'Mara, GZ's lawyer, would have asked to disqualify Lester unless he thought there was strong grounds to do so, since it's a pretty high-risk tactic otherwise.

Posted by Administrators on July 15, 2012 at 02:20 PM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink


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I have defined this problem as "Pretrial Probation"

These pretrial conditions are getting out of hand here in Michigan. Mostly being pushed by Pretrial Service Agencies here. I had a client recently who was charged with assault. His pretrial conditions (monitored through Pretrial Services) included drug and alcohol testing. He never does drugs or alcohol and was forced to leave work three times a week to complete the testing at a test center that charged him $15.00 per test. He ended up losing his job because of the time he spent doing the testing.

Very frequently, the terms of pretrial release are worse than the sentence of probation. These pretrial conditions are getting out of hand and I’m astounded that there are not more criminal justice leaders talking about this. Many of the defense attorneys have just given up (given in) to these over-restrictive conditions. Additionally many of those within the criminal justice system who are against private bail are pushing for bond forfeitures on condition violations. They know that if they are able to change an appearance bond into a performance bond, they will effectively eliminate the private sector bail bond providers to be replaced with government Pretrial Service Agencies. We (bail agents) can effectively (most effectively) ensure the appearance of our client. No form of pretrial release is as effective at assuring the appearance of the defendant as the bail agent. If our client fails to appear, we may remedy the situation by going out and bringing them back. BUT, NOBODY can control what anybody does behind closed doors. When a court forfeits bail because a defendant consumed alcohol, you can’t take that back and there is no remedy. Not even a sheriff can guarantee that their prisoner will not consume drugs while in the confines of his prison. Parents cannot control what their children do behind closed doors either. It’s a slippery slope and I see where many are trying to take this. For many, the goal is to eliminate the bail agent from the criminal justice system. Then there will be no teeth to insure justice.

Posted by: matt | Jul 19, 2012 1:49:38 PM

I thought that, as Dan has made his position clear, I should point out my substantial agreement with it. Like Dan, I think that conditions of bail or of release on recognizance unconnected with the underlying offense, as in Zimmerman's case, involve a judge reaching beyond the purposes of pre-trial release to engage in social work. I take it that the twin purposes of pre-trial release are to ensure appearance at trial and to prevent dangers to the community. Here's where things get difficult: the danger-to-the-community rationale could be interpreted in at least three ways: (1) the danger must be related to the underlying crime charged; or the danger appears during the process of conducting the detention/release hearing because (2) it is unconnected to the crime charged or because (3) it is alleged to be criminogenic factor: the offender committed the burglary to feed his or her drug habit. (1) Appears a sound reason for imposing the conditions. I think we both reject (2) without (3): if the crime is unrelated to, e.g., drugs or alcohol and not caused by drugs or alcohol then engaging in drug or alcohol testing is unwarranted. (3) is the test case: for some it will be completely uncontroversial. After all, public defenders often argue that their defendant is UNLIKELY to commit further crime if he or she can gain drug treatment: her release is justifiable if she can control her habit, and drug treatment and testing will help her do so. This is the sort of case that a couple of judges have raised: I'm surprised the criminal defense bar has not jumped on it as well. The problem is that (3) also includes cases in which the only crime the defendant commits is drug possession or use, and for which she poses no additional danger to the community. In such a case, the treatment or monitoring conditions mark a means of treating or rehabilitating the defendant for and addiction with which he or she may or may not be charged, but which provide some way of monitoring the offender and making the judge more secure that he or she is keeping tabs on any risk the offender may commit.

I happen to think that judges are in a sticky situation in the pre-trial release context. They are required to monitor at least one kind of risk: danger to the community. They may include under that amorphous category a whole range of dangers, from the minimal to the high. They may also regard dangerousness to self as one of the categories. Certainly, Salerno's loose talk about the conflation of crime and danger, tantalizing raised by Laura Appleman's article on SSRN, Justice in the Shadowlands: Pretrial Detention, Punishment, & the Sixth Amendment http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2031196, helps explain the shift to imposing drug and alcohol testing as a condition of release. As Appleman puts it: "The Salerno Court, however, used some sleight of hand between the actual language of the 1984 Bail Reform Act and the way it justified the Congressional Act. One of the ways Salerno defended the idea of pretrial detention exclusive of the risk of flight was by arguing that the government had a legitimate and compelling interest in preventing crime by arrestees. Preventing future crime, though, is a different endeavor than public safety for the community, the purported reasons behind the 1984 BRA."

The question is, then, whether one believes there is a category called "non-dangerous crime," and whether one wants to scrutinize defendants for it. I am probably less sanguine about category (3) than Dan is, and some of the judges are. I particularly worry that intensive testing regimes under category (3) are setting folks up for failure, and so both constitute a form of punishment (mandatory pre-trial and pre-plea rehabilitation within the criminal justice system rather than as a form of diversion) and engage in net-widening (violating the conditions result in incarceration, which produces worse results for criminal defendants). I do, however, recognize that others may think either (A) a violation is evidence of a crime for which punishment or at the least bail revocation to prevent further risk to the community is appropriate (call this the crime control view) or (B) treatment is the appropriate response to evidence of addiction and provides the best chance of channeling folks out of the criminal justice system (call this the judicial treatment approach).

I'm not a fan of (A), personally. And while I get the logic in (B), I think it is important to grasp a sense of the tone in which we should approach it. Two such 'tones' are to celebrate the judicial treatment approach or to tolerate it. I think the very notions of presumption of innocence and proof beyond a reasonable doubt establish a toleration tone in the criminal law: generally we should not impose conditions on liberty unless guilt has been established through a formal process. So there should be a presumption in favor of release and against imposing conditions unless criminogenic factors have been proved at a hearing manifesting the standards of due process and demonstrating a danger to others in the community, not merely to the offender.

Adopting a celebratory tone encourages judges to engage in what we have called "social work." There is a role for this sort of holistic approach to criminal and civil engagement with offenders. But too often it is a means of expanding "governing through crime" (see Jonathan Simon) under the guise of "risk-sensitive treatment" (I'm using scare quotes for the latter, I don't think anyone uses that particular term) or what a variety of people have called "responsibilization." There are a host of policy concerns associated with that, and they are difficult and often revolve around the lack of appropriate housing and treatment facilities for addicts and individuals diagnosed with the dual problems of addiction and mental illness. There is a trend to using the criminal justice system to deal with those problems, either by default (tolerate) or as the cutting edge of treatment-oriented initiatives (celebrate). I find that the sort of treatment proposed by the American criminal justice systems tends to be disciplinary, surveillance oriented, moderately incapacitory, and ad hoc. And so I am a tolerator, rather than a celebrator, of them. Here I certainly do not propose to speak for Dan: we haven't discussed between us where each of us stands on this. My position is somewhat controversial, I suspect.

All this is to say, the issues are, as we acknowledged in our piece, difficult, perhaps intractable. To get a handle on the full issue is to wrestle with the appropriate relation between criminal justice and social services, which is a hot topic in our society. I tend to think that fair-minded people can disagree; I also think that good-intentioned people can use one process (pre-trial release) for another (treatment) even though the way the process is structured does not permit that further goal. The line between the two is blurry, and easily blurred. Some cases are clearly excessive. Perhaps by going after the excessive ones, we can change the tone from celebration to toleration, which is where I think it should be.

Posted by: Eric J. Miller | Jul 16, 2012 4:23:30 PM

when florida was a bail state, a judge could (should/would) be sanctioned for excessive bail. section 9 of the 1885 constitution provided this check and balance to protect its citizens from judges. in 1968, florida became a pretrial release/detention state - but "omitted" the check and balance aka judge sanctioning ability? today, judges have unbridled judicial gov't power.

as regards gz - my guess is lester wants out, and o'mara is accomodating his wishes. afterall, what judge wants to be forever known as the judge who dismissed the Trevon Martin case that led to a violent aftermath.

Posted by: aa | Jul 15, 2012 10:40:38 PM

Here's Monroe Freedman's opinion on the recusal motion at Legal Ethics Forum (and Dan Abrams weighs in): http://www.legalethicsforum.com/blog/2012/07/motion-to-recuse-zimmerman-judge-reuters.html#comments

Posted by: Patrick S. O'Donnell | Jul 15, 2012 2:45:35 PM

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