From the President: Dispense With the Presumption Of Pretrial Detention

Pretrial detention for people who don't need to be detained is foolish and financially wasteful. Through NACDL's Pretrial Release Advocacy Project, NACDL will develop and distribute legal and practical resources so that current knowledge is accessible to practitioners to aid in challenging pretrial detention and bail determinations.

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

In March of this year, I co-authored a piece in the Kentucky Bar Association’s Bench & Bar magazine that was reprinted in The Champion — “The Cost of Representation Compared to the Cost of Incarceration: How Defense Lawyers Reduce the Costs of Running the Criminal Justice System.” In that article, one of the points that we made was that the sooner counsel is provided, the better. We know that representation at a defendant’s first appearance where liberty is at stake is of critical importance. It affects whether bail is set and it affects the amount of any bail required to be posted. Pretrial detention for those who don’t need to be detained is plain foolish and financially wasteful. And the fact that similarly situated accused persons who differ only in the resources available to them will have different outcomes with respect to their pretrial liberty is downright unfair and un-American.

Indeed, NACDL’s Board of Directors adopted a resolution in February 2012 urging the recognition of the right to counsel at the initial appearance before a judicial officer at which liberty is at stake or at which a plea of guilty to any criminal charge may be entered. I urge you to read that resolution, which is available on NACDL’s website at www.nacdl.org/resolutions. It is NACDL’s position that pretrial liberty should be the standard and detention prior to trial should be the very narrow exception.

As you know, however, at NACDL we do more than pass resolutions. We take action. In that regard, I want to tell you a bit about NACDL’s Pretrial Release Advocacy Project that is currently getting underway with significant support from the Department of Justice’s Bureau of Justice Assistance. The purpose of this project is straightforward — to reduce unnecessary pretrial confinement through effective defense representation. How is NACDL planning to do that?

Through NACDL’s Pretrial Release Advocacy Project, NACDL will be developing and distributing legal and practical resources so that current knowledge is accessible to practitioners to aid in challenging pretrial detention and bail determinations. NACDL is going to develop both training programs and a mentoring regime so that lawyers develop these skills in a way that maximizes their effectiveness in real-world situations. The association and its communications department will also engage in widespread messaging designed to promote effective bail advocacy as a professional norm.

My home state of Kentucky has been a leader in this arena, having developed the Kentucky Pretrial Release Manual — a collection of instructional materials and the like related to effective bail advocacy — under the leadership of Kentucky Public Advocate Edward C. Monahan, who is now serving a second term as head of the state’s Department of Public Advocacy. Ed and Professor Adele Bernhard of Pace Law School are co-chairs of NACDL’s Pretrial Release Advocacy Project. They are also members of NACDL’s Pretrial Justice Task Force.

The project will begin with the selection of three to five initial jurisdictions around the country in which NACDL will develop jurisdiction-specific pretrial release manuals for the defense bar and provide technical assistance via both onsite and distance learning. The selection of these jurisdictions will be made based upon a variety of criteria and in consultation with NACDL’s state affiliates, the Pretrial Justice Institute, and the American Council of Chief Defenders. And we will be turning to you, NACDL’s practicing defense lawyers, to establish local advisory committees for each of the selected jurisdictions.

If our criminal justice system truly is about being presumed innocent until proven guilty, then we need to put an end to the presumption of pretrial detention unless one has the wealth and resources to post bail. Indeed, we need to end the harmful and wasteful practice except under very narrow circumstances where public safety demands it. Brothers and sisters, this project embodies what NACDL is all about. We stand up for justice and fairness and we take the necessary steps to secure the resources to effect the change that needs to happen. I am looking forward to watching the far-reaching impact of this project unfold, and knowing the key role that NACDL has played in the countless lives that will be changed by it.

Jerry J. Cox is a sole practitioner based in Mount Vernon, Ky., where he has practiced criminal defense law for over 40 years. He is certified as a Criminal Specialist by the National Board of Trial Advocacy (NBTA), and he served on the NBTA Board of Examiners in 2004. He is a past president of the Kentucky Association of Criminal Defense Lawyers and a Life Member of NACDL. In 2002, the Kentucky Department of Public Advocacy recognized his commitment to criminal defense by awarding him the Nelson Mandela Lifetime Achievement Award.

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Jerry J. Cox
P.O. Box 1350
Mount Vernon, KY 40456
606-256-5111
jcox@kih.net