Pre-trial Release and Judicial Abuse of Bail: Is It A Pervasive Problem?

One of the many inalienable rights extended to all citizens by the United States Constitution is the presumption of innocence. As acknowledged by the Supreme Court, flight risk, a danger posed to society at large or to the judicial process itself can affect a defendant’s right to pre-trial freedom. A far bigger issue however, concerns judicial sanctions that might be permitted after a defendant is judged and sentenced but not before.

Abuse of bail and pre-trial release lingers behind the shadows of respectability and legal entanglements. Last May, a federal judge sentenced an alleged robber to read and write book reports every day for 90 minutes. In the winter of 2011, a trial judge ordered the pre-release of a defendant charged with domestic violence to “buy his wife flowers, take her out for bowling and supper at Red Lobster.” Just as offensive and seemingly naïve were the actions of the Florida judge who forbade George Zimmerman, alleged killer of 17-year-old Trayvon Martin, to drink alcohol or leave his home after 6 pm.

The problem does not lie in the judicial orders themselves but rather in the legal questions they raise concerning the abuse of bail as indicated by the constitution and other pre-release options for the purposes of punishment and/or rehabilitation. Judges are not social workers and yet they often act in that regard. Many judicial pre-release conditions reflect both confusion and a flagrant disregard for the line clearly drawn between pre-trial release and post conviction punishment.


Another important consideration concerns the outrageous nature of some of these pre-trial release options and the unspoken fact that the weirder they get, the more likely they are to attract media attention and public inquiry. In spit of this, most of those pre-release conditions that would be considered way out of line go undetected. This has permitted the seeping of a burgeoning phenomenon within the judicial process concerning bail conditions as a means of establishing both punishment and rehabilitation. It would appear as well that one size seems to fit all, since drug testing, refraining from alcohol, attendance at rehabilitation programs and mandatory job training programs have become standard, catch-all requirements of pre-trial release.

Many believe that these questionable judicial decisions occur because the state and municipal judges who process criminal cases operate under less transparency than federal judges. This factor is exacerbated by the lack of an established right to legal counsel at the time of the bail hearing. The interaction between judge and defendant stretches and sometimes blurs expected boundaries.

Even in cases when attorneys are on the scene, they don’t make an issue over these conditions because they don’t want to rock the bail boat and risk their clients being denied bail altogether. Judges are well intentioned, but their untested responses lead to a silent but steady disintegration of current penal policy and an unfair analysis of suspects at a time when they should be free to build their defense against the charges presented.

In conclusion, judges must remember that social work is beyond their purview and they should refrain from doing it. Release must be predicated on supporting the distinctions between conditions of pre-trial release and post-conviction punishment.

Food for thought, no?

Posted by M Dee Dubroff, on November 14, 2012 at 9:00 AM