SUPERVISING THE PRETRIAL DEFENDANT IN A PROBATION ENVIRONMENT JULY 25, 2019

1. SUPERVISING THE PRETRIAL DEFENDANT IN A PROBATION ENVIRONMENT JULY 25, 2019 FACC ANNUAL TRAINING INSTITUTE ORLANDO, FLORIDA

2. WELCOME!! Jeff Kilpatrick NAPSA President

4. NAPSA Standard 1.3 – Every jurisdiction should have the services of a pretrial services agency to help ensure equal, timely and just administration of the laws governing pretrial release.

5. NAPSA Standard 3.7 – The pretrial services agency or program should have a governance structure that provides for appropriate guidance and oversight of the agency’s staff in the development of operational policies and procedures and for effective internal administration of the agency or program.

6. Pretrial release and Probation are outwardly similar and many jurisdictions across the country have routinely turned to probation entities to house pretrial services functions.

7. There are significant differences between Pretrial release and Probation – including differences in histories, purposes, legal foundations and research.

8. America is currently in a third generation of pretrial or bail reform. The very foundation of our current system of bail administration is being questioned as we figure out ways to improve our release and detention processes to better reflect the law and the research.

9. In many states, probation entities have emerged as the greatest hope for implementing proven pretrial practices in the face of scarce or declining resources.

10. Since 1982, in the Federal system, pretrial has been added to probation functions. Most districts now combine functions into a single consolidated office.

11. What is probation?

12. The term derives from the Latin, probatio, which means a period of proving or testing.

13. Black’s Law Dictionary has defined probation as “a court imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison”

14. The United States Supreme Court has said that “probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.”

15. In 1970, the American Bar Association defined probation to mean, “a sentence not involving confinement which imposes conditions and retains authority in the sentencing court to modify the conditions of the sentence or to resentence the offender if he/she violates the conditions.”

16. Today, the American Bar Association includes probation among a variety of “compliance programs” (including parole, intensive supervision probation, drug, alcohol, sex offender and other treatment programs including family counseling) Goal is to “promote offenders” future compliance with the law and “whose primary design is rehabilitative.”

17. The U.S. Supreme Court has said the purpose of probation is “to provide an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself without institutional confinement under the tutelage of a probation official and under the continuing power of the court to impose institutional punishment for his original offense in the event he abuses this opportunity.”

18. Probation: Maximizes the liberty of the offender while vindicating the authority of the law; Effectively protects the public from further violations of law; Affirmatively promotes the rehabilitation of the offender by continuing normal community contacts;

19. Probation: Avoids the negative and frequently stultifying effects of confinement ; Greatly reduces the financial costs to the community; and Minimizes the impact of the conviction upon innocent dependents of the offender.

20. Pretrial Release: Pretrial release, too, is release into the community with conditions. Technically, pretrial release is the end result of a process of bail.

21. Bail: Comes from the French word, baillier, which meant to hand over, or to deliver. Historically involved the delivery of the defendant to one or more sureties for supervision in the community.

22. The constitutionally valid purposes for imposing bail: • Public safety • Court appearance

23. In most states, bail is a constitutional right and in many other states it is a right conferred by statute. U.S. Supreme Court has equated the right to bail: • The right to release before trial; • The right to freedom before conviction; and • In our society , pretrial liberty is the norm.

24. Bail process is threefold: • Maximizing release; • Maximizing public safety; and • Maximizing court appearance

25. Crucial Differences – (1) Purposes There is no focus on rehabilitation and even articulating a purpose associated with punishment would likely be considered an unconstitutionally improper purpose.

26. What works to achieve our purposes or goals? The purposes of pretrial release and probation are different, pretrial and probation programs must differ in their strategies to achieve those goals.

27. Pretrial and post-conviction programs differ in their intended outcomes. The intended outcome of pretrial services programs is to reduce pretrial failure (failure to appear and danger to the community) pending trial.

28. The post-conviction field seeks to impact long-term criminal behavior while the pretrial field is limited to impacting criminal behavior and court appearance solely during the pretrial stage.

29. Crucial Differences – (2) Privilege versus Right Release to probation might be desirable, even occasionally a statutorily presumptive right, it is a privilege available through the discretion of the sentencing judge.

30. Pretrial release through the bail process is significantly weightier, it is based on a constitutional or statutory right.

31. 1951 Stack v. Boyle Federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. Bail MUST be individualized

32. History - Antecedents to both pretrial release and probation date as far back as biblical times. Punishment for wrongs preceded any mechanism for release while awaiting adjudication or punishment.

33. History - • Move from a system of bail using mostly unsecured bonds to secured bonds • Creation and nurturing of bail/no bail or release/detain

34. History - • Personal surety system • Private jailers or jailers of the accused’s own choosing

35. Personal Surety System - • Reputable person(s) called pledge or bail; • This person’s willingness to take responsibility for the accused under a private jail theory; • This person’s willingness to take responsibility without any remuneration if the accused were to forfeit the financial condition of bail or release.

36. In the 1800s - • Lack of persons willing to take on the great responsibilities of being personal sureties without remuneration. • This ushered in the commercial surety system in America starting in 1898.

37. Terms: • Cash bond • Surety bond • Deposit bond • Property bond • The requirement for up-front money virtually guarantees some defendants remain detained.

38. The Creation and Nurturing of the “Bail/No Bail” or Release/Detain Dichotomy

39. America is currently in 3rd generation of bail reform for 3 reasons: • States only partially implemented the reforms learned in previous generations • Current pretrial research has provided superior methods of administering bail based on risk • Money continues to be used in virtually all jurisdictions

40. Pretrial release is simply another term for bail Bail/No bail system Uncompensated and un-indemnified personal surety system Traditional money bail system – primarily commercial surety

41. Traditional money bail system has only exacerbated two primary abuses: • Unnecessary detention of bailable defendants, “lower risk” • Release of persons who should be unbailable defendants, “higher risk”

42. History of Probation Historians trace probation first to the English practice of “benefit of clergy from 1200s to the 1800s. Mid 1800s Boston shoemaker, John Augustus undertook an exploration of alternatives to harsh punishments and became the innovative founder of modern American probation practices.

43. History of Probation Starting in 1841, Augustus began asking courts to suspend sentences of convicted offenders and release those offenders to the care and supervision of Augustus. Augustus developed the ideas of the presentence investigation, supervision conditions, social casework, reports to the court and revocation of probation.

44. History of Probation In 1878, Massachusetts was the first to pass a probation statute. In 1916, the U.S. Supreme Court invalidated the practice as interfering with legislative and executive powers. In 1922, 22 states had probation statutes.

45. History of Probation In 1925, Congress responded with the first federal probation statute. By 1956, probation for adults was formally available in every state

46. Both Pretrial release and Probation have histories tied to the English common law.

47. Comparing and contrasting the legal principles underlying pretrial release and probation can be difficult; however, not impossible.

49. Overlapping Principles: • Due Process • Equal Protection • Right to Counsel • Individualization • Infringing on Various Constitutional Rights • Least Restrictive Conditions • Proper Purpose for State Action

50. Principles Relating Primarily to Probation: • Excessive Fines • Double Jeopardy • Cruel and Unusual Punishment • Various Rights Attendant to a Fair Sentencing Hearing and Appeal • Prisoner’s Rights