LEAST RESTRICTIVE

Ever wondered how courts decide who gets released pending trial, and who has bail set? Who gets to do day reporting, and who is on house arrest? Who has a GPS tracker or a Secure Continuous Remote Alcohol Monitor? And who just sits in jail awaiting trial? While each judge has the discretion to make this determination, there is an underlying system in place to frame the decision. And the most important concept is that anyone accused – but not yet convicted – of a crime, should be held under the “least restrictive conditions” while considering public safety and the integrity of the judicial system itself.

There is a presumption of release on “personal recognizance” – meaning no bail should be set unless the court finds that there is a substantial risk a released defendant will do any of the following: Fail to appear for future court dates. Commit a violent crime. Or seek to intimidate witness or interfere with the administration of justice.

In deciding whether the accused is likely to show up for court, there are many factors to consider. Are there past Failures to Appear? Arrest warrants? Are they working or going to school, and if so, how steady has that been? Are they in a treatment program or otherwise involved in their community? Do they have close family ties and relationships nearby? What is their reputation, character, and mental condition? How long have they lived in this area? What is their criminal record? Are there responsible people (think mother or caseworker) willing to vouch for the accused, and assist them? What is the current charge they are facing? What other ties do they have to this community?

In deciding whether there is a substantial danger that the accused with commit a violent crime or interfere with the administration of justice, quite a few of the same factors are considered, such as criminal record, current charge, and any people who may be willing to stand by the accused if they are released. Additional considerations include any past threats made to crime victims or witnesses, or other interference with the administration of justice, especially involving a deadly weapon. The court also considers any evidence of present threats or intimidation directed to witnesses.

I think we have all read of cases where someone is released without bail, or with a low bail, and comes straight out to commit a violent crime or take revenge on the crime victim. We have also read of cases where low income people languish in jail for months as their case is continued over and over while evidence is gathered, meanwhile losing their jobs, their housing, and sometimes their marriages before it is determined they were not guilty. I do not envy the judges who have to make these razor-edged decisions on who can be “trusted” out in the community, and who will wait in custody for their trial – unless they can make the bail. And the amount of bail is another matter with guidelines for the court to consider, but ultimately within the discretion of the judge. Tough calls to make with limited information. As an interpreter, I am relieved that my task is limited to rendering the decision in another language, without having to make that decision myself.