NCJ Number
44256
Journal
University of Miami Law Review Volume: 31 Issue: 5 Dated: (NOVEMBER 1977) Pages: 1433-1491
Date Published
1977
Length
59 pages
Annotation
A THEORETICAL FRAMEWORK WITHIN WHICH TO ANALYZE THE RELEASE-OR-HOLD AND BOND-SETTING DECISIONS IS PROPOSED IN AN ARTICLE CONCERNED WITH INCONSISTENCY IN PRETRIAL RELEASE DECISIONS.
Abstract
THE PRETRIAL RELEASE DECISION IS ANALYZED FROM A DECISION THEORY PERSPECTIVE, WHICH EMPHASIZES THE POSSIBLE BENEFITS AND COSTS TO ARRAIGNMENT JUDGES AND TO SOCIETY UNDER A VARIETY OF CIRCUMSTANCES. DECISION THEORY INVOLVES THE SELECTION OF THE OPTIMUM DECISION FOR MAXIMIZING BENEFITS IN LIGHT OF THE PROBABLE OCCURRENCE OF UNCERTAIN EVENTS. THE DECISION OPTIONS ARE TO RELEASE ON LOW BOND OR ON THE DEFENDANT'S OWN RECOGNIZANCE, OR TO HOLD ON HIGH BOND OR ON A NONBONDABLE CHARGE. THE KEY UNCERTAIN EVENTS ARE THE DEFENDANT'S APPEARANCE IN COURT AND THE DEFENDANT'S INVOLVEMENT IN A CRIME WHILE RELEASED. IN PRETRIAL RELEASE DECISIONMAKING, ASSUMED GOALS RELATE TO MAXIMIZING THE PROBABILITY THAT THE DEFENDANT WILL APPEAR IN COURT AND THAT HE WILL BE RELEASED PRIOR TO TRIAL, AND MINIMIZING THE COSTS OF REARRESTING BAILJUMPERS, PRETRIAL CRIME INVOLVEMENT, JAIL MAINTENANCE, LOST GROSS NATIONAL PRODUCT, AND THE BITTERNESS THAT RESULTS WHEN A JAILED DEFENDANT IS ACQUITTED OR WHEN HIS CASE IS DISMISSED. THE ANALYSIS POINTS UP FACTORS IN DESIGNING POLICY RECOMMENDATIONS THAT WILL ENCOURAGE ARRAIGNMENT JUDGES TO BALANCE THEIR CONCERN OVER AVOIDING THE ERRONEOUS RELEASE OF DEFENDANTS WHO WOULD FAIL TO APPEAR IN COURT WILL EQUAL CONCERN OVER THE ERRONEOUS HOLDING OF DEFENDANTS WHO WOULD APPEAR. IT IS NOTED THAT THE CONCEPTS AND METHODS OF DECISION THEORY ARE APPLICABLE TO OTHER CRIMINAL JUSTICE DECISIONS INVOLVING CONTINGENT EVENTS, E.G., THE POLICE OFFICER'S DECISION TO ARREST OR ISSUE A SUMMONS, THE ATTORNEY'S DECISION TO GO TO TRIAL OR ACCEPT AN OUT-OF-COURT SETTLEMENT, THE SENTENCING JUDGE'S DECISION TO INCARCERATE, AND THE PAROLE BOARD'S DECISION TO CONTINUE INCARCERATION.