Every person accused of a crime in Idaho enjoys the presumption of innocence under the Constitution of the United States and the Idaho Constitution. Unless the accused admits guilt, the state must prove beyond a reasonable doubt at trial that the defendant is guilty of committing the crime of which he or she is accused. Still, hundreds of thousands of Americans and thousands of Idahoans are in county and city jails and are being detained prior to trial.

Pretrial detention has been defined as the detention of an accused person in a criminal case before the trial has taken place, either because of a failure to post bail, or due to denial of release by a judge. Recently, the Prison Policy Initiative reviewed “virtually all the research available online” on the subject of pretrial detention. The statistics compiled by these studies are noteworthy.

Over 400,000 people in the United States are currently being detained as they await trial. The number of people in jail pretrial is nearly four times greater than it was in the 1980s. About 69 percent of people held in county jails are being held pretrial. The median bail bond for a felony is $10,000. The annual national cost of pretrial detention is $13.6 billion.

Beyond the out-of-pocket cost to taxpayers to house, feed and care for people pretrial, the research points to other societal costs. Statistically, low-risk defendants appear to become more likely to commit new crimes the longer they are held in pretrial detention and their present and future economic outlook is affected. Pretrial detention reduces both formal employment and earnings of the accused over time and the probability of employment is reduced 39 percent along with a 56 percent decrease in wages according to one study.

Our citizens have a legitimate stake in seeing that justice is done and that local communities are safer. Sometimes our citizens become concerned about bail decisions made by judges in high profile cases, or in cases involving their friends or family members. People might opine that bail was set “too low” or “too high” in a particular case. We are all entitled to our opinions.

Bail decisions are discretionary decisions for judges to make in every case. However, a judge must still apply reason in the exercise of that discretion. The purpose of this article is not to justify any particular bail decision that I, or one of my colleagues, has made, but rather to explain the process of how a judge approaches a bail decision.

The Idaho Constitution establishes a fundamental right that requires a judge to set bail and establish the possibility of pretrial release unless the crime is one that involves potential imposition of the death penalty. So, even crimes that involve potential life imprisonment require bail determinations. So then, why not set a bail amount that is simply so high that the defendant cannot possibly post bail? Simply stated, the United States Constitution and the Idaho Constitution prohibit excessive bail because the purpose of bail is to prevent the imprisonment of innocent persons who stand accused of crimes while at the same time compelling their presence in court when required while their cases are pending final outcome.

There are four types of pretrial release. First, the “OR” release, which is a release from jail upon the defendant’s own recognizance. The release is unconditional and does not require the defendant to post bail. Second, a release may require the posting of bail, a monetary sum that must be paid before release. Third, either of the above two types of release combined with specific conditions attached to the release. There are quite a few specific conditions of release that are commonly used by judges including but not limited to, obedience of no contact orders, drug testing and regular contact with Court Services Officers, limitations upon travel outside of the state, city, county or judicial district, prohibitions from alcohol use, and/or prohibition from the commission of new crimes. Finally, if a judge determines prior to the defendant’s first appearance in court after reviewing a sworn statement of probable cause and any police report provided, or after a preliminary hearing, that there is no probable cause to believe the defendant committed the crime he or she is accused of, the judge must release the defendant.

If bail is required, there are three choices available to the defendant to meet the monetary requirement set by the judge. First, the defendant may post the cash amount of the bond. Second, the defendant may post a surety bond, or bail bond. Third, he or she may post a property bond which establishes a lien against real property.

Once bail is set it can be changed. Bail can be raised, lowered, or no longer required as the case moves forward towards trial. Bail can also be revoked by a judge if the defendant fails to appear in court for a hearing, or if he or she violates the terms and conditions of release. The primary purpose of the bail amount is to provide financial incentive for the accused, a bail bondsman, or the family of the accused to ensure future appearance in court.

Determination of bail or OR release is guided by rule of law and not by the unfettered discretion of the judge. A judge in Idaho is required by both statute and Rule 46 of the Idaho Criminal Rules to consider several factors when making bail determinations. In Idaho Code section 19-2904, the Idaho Legislature has set forth a requirement that a judge consider how to ensure the future appearance of the defendant in court, the integrity of the court process, and the safety and protection of the victim and witnesses.

The Idaho Supreme Court has adopted rules with more specifics for a judge to consider to help implement the requirements imposed by the Idaho Legislature. In Rule 46©, the judge must consider among other things, 1) the defendant’s employment status and history, and financial condition; 2) the nature and extent of the defendant’s family relationships; 3) past and present residences; 4) the defendant’s character and reputation; 5) if anyone agrees to assist the defendant in attending court; 6) the nature of the current charge and any factors that may bear upon the likelihood of conviction or possible penalty; 7) the defendant’s prior criminal record and his or her performance on pretrial release in the past; 8) any facts that indicate the possibility of future violations of law if the defendant is released without restrictions; 9) the strength of the defendant’s ties to the community; and 10) what reasonable restrictions, conditions and prohibitions should be placed upon the defendant’s activities, movements, associations and residences. It is only after making these considerations and determinations that a judge will make a pretrial release decision.

The fact of the matter is that most people released pretrial succeed. General data indicates that 65 to 89 percent will appear for court, 47 to 91 percent remain arrest free, and 92 to 98 percent are not arrested for a violent charge.

So, the Bannock County Pretrial Services Program had recently initiated a Public Safety Assessment program that makes individualized risk assessments for each defendant to aid the judges in making pretrial detention and release decisions. The program is an evidence-based program that is used to predict the likelihood that a defendant will appear in court if released pretrial. This program has been implemented in other parts of the country and statistical analysis elsewhere supports its predictive accuracy. It also predicts the defendant’s potential to commit additional crimes, as well as the risk that he or he might commit a violent crime. Essentially, this new process fleshes out the factors that the judge must consider under the statute and the rule by giving the judge more particular information about the defendant.

Bannock County Pretrial Services is collecting data as we implement this program and it will be adjusted based upon our local experience with our criminal population in terms of whether defendants appear in court as predicted, remain crime free and especially violent crime free while on pretrial release. In this way, the effort is geared toward local public safety and less dependence upon our jail to house defendants to achieve these goals. A collateral benefit lies in the improvement of potential outcomes for the accused in terms of their present and future ability to maintain employment and to be self-supporting and to hopefully remain crime free in the future.

Incarceration or jail is not a permanent solution. Eventually, a defendant is returned to society after release from pretrial detention, or upon return from having served the maximum jail sentence for the particular crime he or she committed. It is our ongoing goal to reduce the taxpayer expense of pretrial release and to reduce the burden on the Bannock County Jail while achieving equal or better public safety. Past bond levies to increase the size of the Bannock County Detention Center have failed, so in response to the voter we are and have been trying to use the jail facility we have more judiciously. We are being more mindful of how and when we use pretrial detention.

Once again, please consider that any opinions I may have expressed above are my own. While many of my colleagues may agree with what I’ve written, I do not speak for any other judge or for the Idaho Supreme Court.