ABA policies have long created a presumption of release pretrial unless an individual is shown to present a danger to the public by clear and convincing evidence. ABA policy favors release on the least restrictive conditions possible and generally without imposing a financial condition. Where financial conditions (bond or bail) are imposed, those conditions should never result in the detention of an individual due to inability to pay.
2017 A 112C urges jurisdictions to release defendants on their own recognizance unless a court determines "that release on cash bail or secured bond is necessary to assure the defendant's appearance and no other conditions will suffice for that purpose". It further urges that courts be prohibited from "imposing a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant's inability to pay."
1998 A 112D urges that all jurisdictions ensure that defendants be represented by counsel at their initial judicial appearance at which release or bail is determined.
ABA Standards on Pretrial Release (2007)
These standards are premised on the law that favors release over detention, and assume that most individuals accused of an offense can be safely released pending trial or sentencing in a case unless the state can prove by clear and convincing evidence that the accused will flee the jurisdiction or will pose a danger to the safety of the community or the victim. See, for example, Standard 10-1.1; 10-1.2; 10-1.3.
Many jurisdictions are expanding pretrial release to diminish jail populations and prevent the spread and severity of COVID-19 in jails. Here are a selection of NEWS REPORTS on expanded pretrial release:
- Philadelphia District Attorney and Public Defender's office work toward reducing population of incarcerated
- Lawsuit: St. Louis' cash bail system creates coronavirus danger
- County public defender challenges policy barring bail hearings during pandemic (Santa Barbara)
Webinar and Materials
ABA SCLAID, together with the ABA Section on Civil Rights Social Justice and ABA Criminal Justice Section hosted a WEBINAR on Expanding Pretrial Release in the Age of COVID-19. The webinar is now available for replay.