In the United States, where the principle of “innocent until proven guilty” is a cultural bedrock, close to half a million people are behind bars awaiting trial, convicted of nothing.
As part of a growing effort to reduce pretrial jail time for defendants, a national organization of defense lawyers teamed up with public defenders and advocates in Colorado to publish a guide on how to win the release of people as they await trial, especially those identified as low risk.
Publication of the free, downloadable manual, The Colorado Bail Book: A Defense Practitioner’s Guide to Adult Pretrial Release, comes in the wake of a 2013 overhaul of Colorado bail laws. The statutory updates were based on a detailed assessment of the risk posed by releasing people arrested and charged with a variety of crimes.
“When people started looking at the numbers, they started asking, ‘Why are we holding poor people on money bond, often times on minor offenses?’ It really seemed to be penalizing people for being poor, because wealthier people were being released,” said Colette Tvedt, indigent defense training and reform director for the National Association of Criminal Defense Lawyers (NACDL), which aims to “ensure justice and due process for persons accused of crime or wrongdoing.”
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The Colorado Bail Book explains the changes in Colorado law, and it emphasizes that certain practices, such as using a formula to set bail based on types of crimes, are flat-out unconstitutional, Tvedt told Rewire.
The guide points public and private defense attorneys to a risk-assessment tool that “identifies which defendants are likely to be higher risk to public safety (commit new crimes) and to fail to appear for any court date during the pretrial period.” Defendants are assessed based on a series of questions and background checks. The document states that the assessment tool was successfully piloted in Colorado courts.
“We’re hoping that the judges and the prosecutors will abide by the new changes in the law and release a lot more of the low- and moderate-risk defendants who should be out, without conditions,” said Tvedt.
A call for comment to the Colorado District Attorneys’ council was not returned.
Of the 735,000 people incarcerated in local jails in the United States, about 60 percent are being held pretrial, and are not yet convicted of any crime, according to federal statistics. There are about 2.3 million people incarcerated in America, including federal prisoners.
The costs go beyond dollars spent on keeping defendants in jail. People in pretrial detention often lose their jobs and housing and face personal traumas, even though they haven’t been convicted of a crime, Tvedt said.
Excessive pretrial incarceration “effectively coerces even innocent defendants into pleading guilty in exchange for a sentence of ‘time served,'” said Tvedt.
The Colorado Bail Book was published by NACDL as part of a grant from the federal Bureau of Justice Assistance, in partnership with the Office of the Colorado State Public Defender and the Colorado Criminal Defense Institute.
“It is our hope that all defenders, both public and private, use this resource to aggressively and consistently challenge the pretrial system that punishes the accused before conviction, forces guilty pleas to obtain release and incarcerates the poor simply because they cannot afford to post a money bond,” states the Colorado Bail Book’s introduction, signed by Tvedt, Maureen Cain, policy director of the Colorado Defense Institute, and Colorado State Public Defender Douglas Wilson.
Colorado’s manual reflects work done in Kentucky, Tvedt said, adding that NACDL aims to produce similar guides for New Jersey and Wisconsin, which are both in the midst of reforming bail statutes based on risk assessments.