Bail Reform: Pretrial Service Employee Generated Reports

“In the event that a law enforcement agency or officer has reason to believe that a defendant has violated a condition of pretrial release, the agency or officer shall promptly notify the County Prosecutor handling the case, or the Division of Criminal Justice in cases prosecuted by the Division. The County Prosecutor or Division shall promptly notify the pretrial services program of the circumstances of the violation unless the Prosecutor or Director determines that such notification would jeopardize an investigation or law enforcement operation, or endanger an officer or other person. The prosecutor also shall promptly determine whether to (1) initiate a charge for criminal contempt or any other applicable offense and/or (2) seek revocation of release pursuant to Section 8, or request that additional conditions of release be imposed.

If the suspected violation occurred outside the jurisdiction of the County Prosecutor handling the matter on which pretrial release conditions were imposed, the agency or officer detecting the violation may notify the County Prosecutor having jurisdiction over the place where the violation occurred, in which event that prosecutor shall promptly notify the other County Prosecutor’s Office of the violation.

If the violation constitutes a criminal offense and two or more Prosecutor’s Offices are involved, the prosecutors shall confer and coordinate their efforts to ensure public and victim protection to the greatest extent possible.”

The provisions regarding the notification of pretrial services highlights the privileged status that prosecutors tend to enjoy in our criminal justice system. Here, they are encouraged to have ex parte communications with the pretrial service employees that will generate the reports that are relied upon in making crucial bail condition decisions. Prosecutors thus enjoy the advantage of shaping the reports and the recommendations regarding pretrial detention, release and conditions. These recommendations are supposed to come from an objective and neutral assessment.