Collins: Pre-trial justice for all the norm in our nation

By JOHN L. COLLINS
Retired Circuit Court Judge

Both the United States Constitution and the Oregon Constitution lay the foundation for the above quote from the landmark U.S. Supreme Court decision in Salerno. Both provide that “Excessive bail shall not be required.”

This requires that pretrial release, whether it is cash bail or other requirements of release, must be based only on public or alleged victim safety and assuring that the defendant will appear in court.

In recent years, bail reform, as it is commonly called, has taken effect across the nation.

For some states, reform was mandated by appellate courts through decisions or Chief Justice orders. Some, like California and Harris County, Texas, were forced to make changes by lawsuits based on unconstitutional provisions or processes governing who is or is not jailed pending criminal allegations.

Many people were detained without effective due process and often based on a system of cash bail that kept persons in jail based on their inability to pay.
Oregon has been spared such litigation partly because Oregon is one of two states in the nation that does not rely upon a bail bond industry to post “cash bail” to secure the release of persons jailed pending trial. That industry has given rise to some of the most egregious violations of due process and equal protection and, ultimately, the public interest.

Yet Oregon, too, has had reason to reform. Senate Bill 48 presents that opportunity.

In recent weeks, the News-Register has featured articles on Oregon’s new law governing pre-trial release decisions, which takes effect today, July 1.
Guest articles by District Attorney Brad Berry and Sheriff Tim Svenson demonstrate that Yamhill County is a step ahead of this new law, and certainly ahead of any lawsuits. We got there because it has been the right thing to do.

Thanks to leadership and collaboration, we worked toward a set of common constitutional objectives — maximizing the safety of the public and alleged victims, releasing accused persons when it appears safe to do so, and ensuring future court appearances to the extent possible.

This effort has come about as a part of our Evidence-based Decision-Making Initiative in which all the key players contributed to improvements in sentencing and pre-trial release.

Yamhill County’s approach has been a model for other jurisdictions. It has also served as the model for SB 48, which will make what Yamhill County has been doing even better by promoting equal application of the law and best practices statewide.

Implementation has been and will continue to be achieved under the unified guidance of the chief justice and the Justice Department’s Criminal Justice Advisory Committee. The legislation returns this key decision to the judicial branch, where it belongs, and lays the foundation for a safer, more just community offering better outcomes for all.

Some key provisions of SB 48 stand out.

Under the guidance of the chief justice, presiding judges must develop an order directing the release of defendants between arrest and first appearance in court for arraignment.

The order must incorporate three groups: defendants releasable on their own recognizance, mostly charged with lesser property offenses; defendants who can be released on the least onerous conditions designed to assure public safety and court appearance, such as no contact with an alleged victim, no drug or alcohol use and no association with known drug users; and defendants facing more serious crime-against-person charges, who must be held in jail pending a prompt arraignment or release hearing.

The judge can then make an informed decision on defendants in the latter category, based on review and application of pre-trial criteria by a court-connected release officer.

The alleged victim has an opportunity for input at this juncture, particularly important in domestic violence cases that fall into this category. If a probation officer is involved, he or she may have helpful information to offer as well.

The accused can be encouraged, or even required, to participate in a form or treatment as a condition of release.

A deputy district attorney advocates for the state and alleged victim. A defense attorney advocates for the accused, and in that capacity, can also assist in developing conditions and resources for safe, effective pre-trial release.

The court can also make an informed decision to require posting of bail or deny release outright pending trial.

The Constitution requires release decisions to be made on an individualized basis, based on factors applicable to the particular person in the context of public safety and court appearance. And SB 48 will facilitate that.

Some dangerous persons can be detained without release if the DA presents clear and convincing reasons to do so and the defendant has an attorney and a chance to be heard.

Our diligent and dedicated pre-trial office, a part of the Community Justice Department, is charged with presenting fact-based recommendations regarding release, monitoring compliance with conditions, encouraging court appearance and promoting access to treatment, stable housing and social resources. A phone or text reminder message, a proven method to improve court appearance, can be set up.

SB 48 requires courts to collect data and use it to inform better practices. Data-driven decisionmaking has been a key part of Yamhill’s EBDMI.
It has also been a hallmark of improvements in other professions as well. Data-based medial science and research, for example, has always led to improvements in health care.

Data can help the judicial system identify practices that work best for all concerned and, like the medical profession, “do no harm.”

Though Yamhill has developed a model system, SB 48 and a commitment to continued review and improvement will make it even better — better for the public, the taxpayer, victims, the accused and others affected by release decisions. Stay tuned.

John Collins recently retired after nearly 30 years on the bench. He continues to serve as a senior judge, assigned to serve as needed in Yamhill County Circuit Court and other courts throughout the state.

Pre-trial detention series

This contribution from longtime Presiding Circuit Judge John L. Collins, recently retired, is the last of three weighing in on new pre-trial detention regulations taking effect July 1. District Attorney Brad Berry led off two weeks ago, and Sheriff Tim Svenson followed last week.