Despite assurances that “[i]n our society liberty is the norm, and detention prior to trial . . . the carefully limited exception,” over 75% of those detained in local jails have not been convicted of a crime.  Two-thirds of state pretrial populations are held for non-violent offenses, and the racial disparities which plague the criminal legal system are especially pronounced in pretrial decisions.  With pretrial decisions having substantial, long-term case impacts, the uses and abuses of pretrial detention erode the presumption of innocence and destroy any sense of justice. 

NACDL's work on pretrial advocacy in Colorado induding the publication of the Colorado Bail Manual. [Released September 2015]

NACDL's work on pretrial advocacy in New Jersey highlighted by the publication of the New Jersey Bail Manual.  [Released December 2016]

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioners.

Argument: The dramatic impact that Marsy’s Law would have on Pennsylvania’s criminal justice system is not mere speculation. Other states have adopted nearly identically vague and broad constitutional amendments, which have resulted in substantial harm not only to criminal defendants, but also to the administration of the criminal justice system. This amicus brief summarizes the substantial burdens that Marsy’s Law has imposed in other states where it has gone into effect. The right “to reasonable and timely notice of and to be present at all public proceedings involving the criminal or delinquent conduct” has cost counties and states millions of dollars and congested court dockets. Marsy’s Law states have struggled to deal with the financial impact of the notice provision. The docket congestion caused by the notice provision has caused intolerable delays in proceedings. The right “to reasonable protection from the accused or any person acting on behalf of the accused” has led to absurd results in pretrial release decisions. The right to “full and timely restitution” will take money from the courts. The codification of “respect for the victim’s…privacy” and the right “to reasonable protection from the accused” has made it more difficult for law enforcement to solve crimes and left the public lacking critical information about criminal activity.

NACDL's work on pretrial advocacy in Wisconsin highlighted by the publication of the Wisconsin Bail Manual. [Released October 2018]

NACDL's work on pretrial advocacy in Harris County, Texas highlighted by the publication of the Harris County Bail Manual.  [Released December 2018]

The use of risk assessment instruments (RAIs) in the pretrial context is the subject of ongoing debate. Often seen as a way to address flaws in the current pretrial system including excessive reliance on money bail and the disproportionate impact on people of color, concerns exist that these instruments may actually exacerbate and amplify existing disparities in pretrial decision making.

There is a vital role judges can and should play in insuring pretrial justice. For many who stand accused, their first appearance before a judicial officer will decide the entire trajectory of their case. Being released not only means returning to a job, family, community, and home, but it means having markedly better opportunities to assist in your defense and having significantly better case outcomes. In most states, that initial appearance is conducted without the assistance of counsel, leaving an accused to rely upon the decision-making of a judicial officer.

NACDL supports pretrial policies and practices which ensure the protection of fundamental constitutional rights including the presumption of innocence, the prohibition on excessive bail, and robust due process protections. Fundamental to preserving these rights, is NACDL's efforts to ensure the right to counsel at first appearance.

One of the most important factors in reducing unnecessary pretrial confinement is the presence of an effective and zealous attorney to advocate on behalf of the accused at the initial appearance and bail review hearing. The presence of a skilled advocate improves case outcomes and enhances the sense of fairness vital to a healthy criminal justice system.

Coalition letter in support of Virginia Pretrial Data Transparency Bill, HB 2121/SB 1687. NACDL is a signatory.

Nation’s Criminal Defense Bar Welcomes Criminal Justice Reforms Adopted by the State of New York -- Washington, DC (Apr. 1, 2019) – On Sunday, March 31, Governor Andrew Cuomo and the New York State Senate and Assembly reached agreement concerning multiple, significant pretrial criminal justice reforms as part of the state’s FY 2020 budget package. These changes will take effect in 2020. The reforms concern speedy access to trial, discovery in criminal cases, and bail and pretrial release.