NCJ Number
101203
Journal
Journal of Criminal Law and Criminology Volume: 76 Issue: 1 Dated: (Spring 1985) Pages: 1-74
Date Published
1985
Length
74 pages
Annotation
Following a review of the traditional legal framework governing detention policy, this paper examines the emergence of the public safety focus of the bail reform movement of the 1980's and evaluates its implications for detention and pretrial release, with particular focus on the difficulties inherent in predicting dangerousness and pretrial recidivism.
Abstract
It is argued that preventive detention and bail reform laws raise the issue of balancing public safety against the costs to defendants and to the justice system itself. The goal of targeting selective and restrictive procedures against high-risk defendants must be balanced against due process and procedural safeguards and must be weighed against the knowledge that it is difficult to know with reasonable accuracy who the greatest risks are. Screening procedures, whether empirically derived or based on conventional wisdom are clumsy and produce sizable margins of error. Procedures that authorize detention on the basis of anticipated but unprovable future conduct accept the predictability of dangerousness on faith. Despite elaborate safeguards, if a defendant falls within one of the diverse categories defined in the new laws as detainable, the defendant cannot demonstrate that a feared future act will not occur. Further, current pretrial danger laws have ignored the front-line decisionmaking practices of criminal court judges. Future strategies should focus on assisting courts in reviewing their operating bail policies, in organizing their discretionary and improvisational release and detention practices, and in monitoring the practices' effectiveness. Appendixes provide State data on statutory bail, risk assessment, and detention and release provisions. 236 footnotes.