A growing number of states and localities are committed to improving their pretrial justice systems to make them more effective, fair, and equitable. They do so against the backdrop of federal, state, and local laws. These laws govern what jurisdictions can and cannot do when it comes to pretrial release and detention.
APPR conducted legal analyses for several states (available for download below). If you live in one of those states, this guidance can help as you consider how your pretrial law might impact decisions about improving pretrial justice. Even if you live in another state, these analyses can serve as models for your own. The national landscape descriptions are applicable for all jurisdictions.
Judge Elizabeth Trosch describes how reviewing state law resulted in an “a-ha” moment for colleagues.
Examining your pretrial law is one part of effective and systemic pretrial improvement. Policymakers and judges must understand their pretrial legal landscape. This knowledge helps them assess whether current pretrial practices are consistent with the law (both where it is now and where it is heading) and how much latitude they have to change those practices.
It is helpful to create a committee or workgroup to conduct research about your state’s pretrial law and to write a report. The committee should include at least one or two judicial officers, a prosecutor, and a defense lawyer. This ensures that balanced perspectives inform the group’s review of the law.
Four main categories of legal materials can inform your analysis:
Begin by examining your laws regarding pretrial release and detention. Most states’ constitutions set forth a broad right to pretrial release and then spell out the charges and other criteria that define who is eligible for pretrial detention. Statutes and court rules often specify additional procedural and substantive requirements that courts must follow to detain someone, as well as criteria for deciding the conditions of release. Your state’s case law can also be an important resource for properly interpreting your constitution, laws, and rules.
Next, examine your laws regarding what conditions, if any, should be imposed when someone is released pretrial. Pay particular attention to the use of financial conditions, because they often significantly impact who is detained—even though that may be inconsistent with state and/or federal law or even court rules.
The report should lay out the local and state legal landscape and include high-level takeaways about how the law might impact pretrial improvement decisions. In many jurisdictions, these takeaways may include the fact that current policies and practices are not consistent with federal legal principles concerning due process or equal protection. And they may sometimes be at odds with state laws or rules—which may not have been reviewed when these policies and practices were developed.
Your committee should present your key legal principles and research findings to system stakeholders and policymakers. Local stakeholders may find the law is consistent with the improvements they want to make–or that it may present potential obstacles that they will have to address. And it can help convince others that change is necessary–or even legally required.
Use APPR’s sample slides, which cover national legal principles that apply to all states, as a starting point for your presentation. You can then add your local and state legal analysis to this template, which also includes detailed speaker notes.
Download Overview of Pretrial Law and Research (.ppt)
The legal report can provide a roadmap for discussion about connections among the law, research, and policy decisions this group will make about potential pretrial improvements. APPR has a list of questions to help inform and guide this discussion.
Download Pretrial Law and Legal Questions (.doc)
When the report is finalized, consider how to share that information to educate people in your justice system, policymakers, community members, and local reporters.