As explained in Criminal Courts: A Contemporary Perspective (Hemmens, 2013), first a defendant is arrested, the prosecutor decides whether or not to press charges and if so, they quickly have their initial appearance in front of a judge where they are released or detained. If released there may be bond requirements of monetary security deposits or other forms of monitoring beyond the standard pretrial conditions.
Once arrested a defendant is brought to the jail, from here the prosecutor has virtually complete discretion to decide to charge the defendant with anything or release them. 43% of cases are dismissed by the prosecutor off the bat, regardless of their personal philosophy guiding their process, they are determined to be cases that wont likely be won even if guilt is believed (Hemmens, 2013).
Once the prosecutor decides to press charges the defendant is sent before a judge for their initial appearance, this most often happens in a matter of hours but could take up to a couple days. In the initial appearance the defendant has the charges against them listed and explained, along with consequences of being found guilty, by the judge. If the defendant pleads guilty they are either sentenced or held over for sentencing. Felony charges can not be accepted in most cases during the initial appearance.
If the defendant enters a not guilty plea the judge decides rather the defendant can be released on their own recognizance or on bond requirements. Bound requirements can be monetary retainers and or more involved tracking methods (electronic tracking devices: ankle monitors. Etc…) or other less often used options. Most bonds only require the monetary retainer, that can be made through a bondsman for 10% of it’s total, this money is lost if bond conditions are broken or if the defendant absconds. Repeat offenders, those with escalated or aggravated charges and many with DUI’s are sometimes given a monitory bond that is believed to be higher than they could pay, this on occasion proves to be wrong. Some are put on substance use monitoring and or monitoring equipment.
When given an electronic monitoring requirement the equipment must be hooked up before the defendant may be released from the jail. This presents an issue with the jail, as they are only permitted to retain a defendant for a finite amount of time after they have made bond, before it becomes false imprisonment in the eyes of the courts (regardless the bond requirement). Probation offices (often privet rather than state operated) contract out to the jail/courts/pretrial services to provide the electronic monitoring for defendants with those requirements on their bonds and sentences.
A few defendants will bond out with In-Home Detention as a pretrial requirement, usually when associated with a charge that has a victim the court wants to have extra insurance they will not be contacted by the defendant (domestic violence and stalking usually). DUI defendants age given electronic requirements most often, in Boulder County (Colorado), when bonding out on repeat offenses. They most often are required to go on “Electronic Alcohol Monitoring”, which due to the wording of an order by the judges must also require GPS capabilities. The frustration with is, is that the judge may be under the false impression that the defendant will be wearing some form of ankle monitor, when in fact this defaults the defendant onto a portable breathalyzer. Yes the breathalyzer will GPS the defendant and take a photo during testing to ensure sobriety requirements are being adhered to, however, the defendant could also chuck this device in a bush the second they walk out of the booking doors at the jail and take off. This device is occasionally assigned to sex offenders due to the misgivings the GPS implies, and it’s the discretion of the privet probation office to hook up or refuse to, however they have to have a cause such as not being able to insure the victim does not live where the accused will be residing. If there is no cause to refuse the hook-up, it legally must be done.
regardless of how they got there, once on pretrial a defendant starts going through court required programs and systems that result in the defendant effectively preforming the core requirements of probation (prior to conviction). Defendants must set up with a pretrial case manager that they must meet with once a week (regular probation requires monthly meetings), they are set up on monitored drug testing most often, and some are required to attend therapy evaluations and/or classes. On the surface, one might think only those who have cases related to drugs or alcohol will be taking drug tests, you would be wrong. In Colorado and Boulder county especially, almost everyone pees in a cup, at least a few times (in front of a stranger monitoring to insure no cheating). Juries don’t know this is standard, and if it comes up in court it could hold less favor as proof of sobriety and possibly cause damage by implying guilt for having been done at all. This is a common concern among pretrial defendants.
If given an electronics requirement, the cost will range from $8-11 a day for the defendant. Inability to pay for the equipment’s use can result in bond revocation due to monitory failure to comply with terms and conditions of the company providing the equipment. When placed on drug tests, defendants will often start at 6-8 tests a month whose price can range from $10-20+ each. Pretrial supervision costs $50 a month, and any evaluation or class will range from $50-200 each. Many defendants know they can not afford this or have no intention of being able/willing to comply with the bond requirements and would rather do straight time, if guilty it counts for time served. However, in Boulder county, the jail is well over max capacity and it’s a battle to be retained and not placed on bond (also probation once convicted).
Should the defendant have not lost their employment during their arrest and release phase, they will now have to juggle weekly meetings, random drug testing, and other time consuming requirements around it. If they have lost their (or never had) employment, they will be expected to find new employments as soon as possible while also complying with pretrial terms and conditions. If a defendant is on charges of DUI, there is a good chance they have lost their license and are now limited to walking, biking or busing everywhere, resulting in things taking three times as long to accomplish. One of the most commonly held complaints is: being expected to accomplish more on a daily bases than those assigning it, in less time than they would be allotted, and not feeling any amount of understanding for how difficult that would be for any person, simply because they have charges (not convictions) related to it. This is where the impression that the system is set up to ‘help one fail’ starts to develop in defendants.
Defendants on pretrial often see it as a forced extension to their sentence that costs them much of their time and money and only reimburses them with the ability to attend to their daily life (jobs and other responsibility’s) and allows them to be around friends and family rather than incarcerated. Most defendants would rather do the pretrial sentence in jail, as the time spent awaiting trial would count towards their sentenced time (which is most often accredited ‘good time’ – day for day). there is nothing about pretrial bond requirements that applies towards ones sentence. The evaluations must be redone, the classes started over, the drug tests done only get used if to prove the defendant relapsed between pretrial and sentencing. Only now can the defendant start community service (referral from the probation office required) and if convicted of a DUI, get an interlock installed in their car (DMV requirement to have holds removed from licenses but allow driving in the mean time) and much of the pretrial conditions will continue (from square one). Defendants will still be testing 6-8 times a month at $10-20 each, regardless of charge. Classes may not have been required for pretrial, but they will be on probation, and there are countless ways to trip up and get revoked and reinstated (your probation time duration starts over).
When released on pretrial defendants may still be innocent until proven guilty, but they are required to preform the requirements of those convicted to retain their pretrial freedoms granted by the courts, these freedoms may be used to build a defense, maintain their life, or to deal with their impending conviction. Those not granted release must spend their time sitting in jail with little to no power over the events effecting their life. From arrest to initial appearance to arraignments, discovery and pretrial motions the defendant may only see the court room a dozen times over the course of
around 6 months, but rather innocent or guilty they will be sanctioned.
Many in the pretrial/probation departments see all clients as guilty, not because they are jaded necessarily but because more often than not it’s true. However, there are exceptions as well as cases of people who ‘had a few drinks too many, honestly thought they were fine’, weren’t by the smallest amount and the fact that they weren’t is enough in itself to have gotten the point across (regardless impending punishment), or were in the wrong place at the wrong times and got caught up in something they otherwise wouldn’t have. ~ There are many people who have clean records with the same story, just minus the arrest (including many working in the system).
While I can see the retribution, rehabilitative and restitution factors in the pretrial requirements being a mirror of probation sentencing, I also see it as biased and prejudicial towards those that are in fact innocent. On top of defending themselves, they are sent through a gauntlet of requirements that their non-convicted freedom and lives depend on. I feel there should be no class requirements with pretrial, evaluations should remain as they would be needed for mental heath and other like assessments. If someone needs to be on monitored sobriety there are cost effective alternatives that would not disrupt a defendants life as much as the standard methods do. Rather than calling a hot-line every day to see if you need to test that day (at $60-80 a month) a defendant could either be set at a lower amount per month or placed on a more affordable testing method. If a defendant is found innocent or their case dropped, any supervision infraction (with pretrial not new charges) encored during pretrial should be dismissed as well. A person should not have to continue to serve a punishment related to a crime they are not charged with. If anything, should dismissal not be an option, turn it into a monetary fine, rather than a way to trap someone in the system on technicalities.
Pretrial sounds cut and dry in text book descriptions, just a matter of court dates and time, but from the defendants point of view it is incredibly, if not overwhelmingly, involved. The costs of being
released quickly soar above and beyond that of a bond payment on average. The stress involved can hinder recovery in addicts if not cause relapse, and the costs can ruin lives in ways beyond the conviction alone. In counties where overcrowding and other factors result in most people being released on pretrial but having to wait up to 6 months for their trial/sentencing while preforming endless monitoring tasks, It can be hard not to at least accept how defendants could see the system as stacked against them. Not to says it’s justified as many of the referred points of view are warped to some degree towards the system, but the sheer magnitude of pretrial requirements and weight they carry over a defendants life are something that shouldn’t be easily dismissed.
References
Hemmens, Craig, David C. Brody, and Cassia Spohn. Criminal Courts: A Contemporary Perspective. Los Angeles: Sage, 2013. Print.
- Jocelyn Johnson
Dirtsa's 