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Going Against the Grain: D.C.'s No-Bail Pretrial Release System

By David O'Boyle

July 13, 2016

The practice of requiring bail has come under criticism recently as an unfair system that disproportionally affects low-income defendants. Because they cannot afford to post bail, poor or modest-means individuals often are held in jail until their trial dates, which can lead to extreme hardship. Some may lose their jobs, others may fall victim to violence while behind bars awaiting trial. Some may plead guilty despite being innocent.

The District of Columbia is one of a few jurisdictions in the United States that does not require an individual who has been arrested to post bail to get released. Earlier this month, The Washington Post ran an article on the District's unique system of pretrial release, which advocates for reform have held up as a model for other jurisdictions.

Roscoe C. Howard Jr., a partner at Barnes &Thornburg LLP and former U.S. Attorney
for the District of Columbia, says prosecutors often benefit from keeping individuals
in jail before trial. "The easiest way to get a case closed is to convince the guy to admit to a crime so you don't have to try it," says Howard. "One of the ways you get the guy to capitulate is you put them in hard circumstances. You can do that by throwing them in jail."

Detaining a defendant also gives the prosecutor an upper hand, Howard says. The prosecutor knows where the defendant is at all times, and the defense attorney has to come to jail to speak with his or her client. So if a prosecutor needs to meet with both of them, the jail is a secure place for everyone.

While beneficial for prosecutors, Howard says the practice is difficult to square with the Constitution because people are being punished before trial. "We have the right to a speedy trial, but there are many loopholes and excuses to get around that," says Howard. "As a result, there are oftentimes people [who sit] in jail for as long as a year—or even more—before receiving a trial. Think about the injustice of staying in jail that long, and then you're found not guilty. Most people would say there's something wrong about that."

Monica "Nikki" Lotze, a founding partner at Lotze Mosley LLP, says the District's system is fairer than that of Maryland, where she also practices. "[The District's system] ensures that people who would not otherwise be able to afford to be released are released" pending trial, she says.

The District's bail-free system of pretrial release is not without conditions. Defendants
often are required to report to court either by phone or in person, submit to regular drug testing, or wear a GPS monitoring device.

Lotze says the District's system of monitoring defendants, who have to regularly check in with the court in one way or another, is just as compelling as bail requirements in ensuring their appearance at trial.

Lotze, however, says her clients prefer Maryland's system of bail. "For clients who can afford to pay, they would be much happier to post bail and be left alone to live their lives pending trial without the burden of regular drug testing, reporting, and GPS monitoring," she says.

Howard, on the other hand, disagrees with concerns that the District's pretrial release
system is putting criminals back on the streets to commit additional crimes. "It's like saying that because there was a car accident on I-66, we are going to ban all cars. That was one accident. Just think of all the cars that travel around here," he says.

Citing data from the Pretrial Services Agency for the District of Columbia, the Washington Post reported that, in the past five years, approximately 90 percent of released defendants remained arrest-free before their cases were resolved.