The Prosecutor’s Role in Pretrial Release: An Analysis of Van Atta v. Scott

At first glance, a prosecutor does not appear to play much of a role in the bail and pretrial release procedures. Under California law, everyone is entitled to monetary bail that is set according to a master schedule. That schedule is created annually by judges in each individual county. The decision to increase or decrease that amount, or to release a defendant on his or her own recognizance (OR) prior to trial, is entirely within the discretion of the trial judge. It used to be the case that a judge could set a bail amount that far exceeded what an individual could pay as well as deny that individual’s request to be released on OR without the prosecution so much as lifting a finger. That all changed with the 1980 California Supreme Court decision, Van Atta v. Scott.

In Van Atta, the California Supreme Court determined that San Francisco County’s pretrial release and detention system violated the Due Process clause of the state and federal constitutions. The case was brought by taxpayers seeking to enjoin the use of public funds to support San Francisco’s money bail and own recognizance release procedures. At that time, anyone arrested and booked for committing a crime was immediately released if he or she could post bail in the amount specified by the master bail schedule. The master schedule set the bail amount based on the seriousness of the offense without any consideration of the defendant’s circumstances. Anyone who was not released on bail had to be arraigned within 48 hours of arrest, not including Sundays and holidays. At arraignment, the court could reset the bail amount for those who remained in custody. When setting bail, the judge would consider the “likelihood of the detainee appearing in court, the seriousness of the offense charged, and the detainee’s previous criminal record.” (Van Atta p. 431). Judges in San Francisco gave little or no consideration to the individual’s ability to pay, nor was the prosecution under any obligation to provide evidence or argument for setting bail in a particular amount.

As an alternative to money bail, detainees could also ask the court to release them on their own recognizance. Those who sought OR release were supported by a group called the OR project. The OR project resembles what we know today as pretrial services. Project staff members conducted interviews with the accused and prepared reports that contained a summary of the detainee’s prior criminal history and his or her ties to the community. The OR project then evaluated the accused based on a points system and gave a recommendation to the court either for or against OR release. Despite the Project’s recommendation, the courts operated under a presumption against release, and the defendant bore the burden of convincing the court otherwise. As a result, only 17 percent of people were released on their own recognizance per year. Meanwhile, the prosecution did not have to produce any evidence or argument as to why an individual should not be released.

In deciding whether these pretrial procedures satisfied due process, the court balanced the private and governmental interests at play in order to determine if the procedures could, “without unduly burdening the government, maximize the accuracy of the resulting decision and respect the dignity of the individual subjected to the decision-making process.” (Van Atta p. 434). The court recognized a number of private interests, the most important of which was individual liberty. The court also recognized that remaining in jail could have negative impacts on a defendant’s right to a fair trial. For example, it could inhibit the defendant from gathering evidence and interviewing witnesses. It would also mean that the defendant would show up to trial in prison clothes and handcuffs, which could unfairly prejudice a jury. The court noted that pretrial detention has negative socioeconomic impacts on a defendant as well. It can result in the loss of employment or impair relationships. It also subjects individuals to the influence of other jail inmates, which can corrode a person’s moral character and result in future criminal behavior.

The court recognized only one competing governmental interest in this case: the state’s compelling interest in ensuring that the defendant will appear at all future court proceedings at a reasonable cost. The court agreed with the plaintiffs that the pretrial system employed by San Francisco County did not strike the proper balance between these competing interests. The court then addressed two burdens that exist when a detainee asks for OR release: the burden of producing evidence and the ultimate burden of proof.

The court held that the burden of producing evidence is shared between the defendant and the state. The state is in the best position to produce evidence regarding the defendant’s prior criminal history, as well as any prior instances of the defendant’s failure to appear in court proceedings. However, the court held that defendants have the burden of producing evidence about the defendant’s ties to the community, employment status and the like because the defendant is in the best position to provide that information.

Next, the court addressed the more crucial question of which party bears the ultimate burden of proof in an OR hearing. The court decided that the prosecution should bear this burden because it preserves the respect for individual liberty and protects the presumption of innocence, which is a core tenet of our criminal justice system. It also maintains the respect and confidence of the community that the law is applied uniformly; it also corrects inherent biases within the OR decision-making process.

The court was careful to limit the effect of its ruling in this case. First, the majority made it clear that its ruling did not create a right to OR release. The ultimate decision still remained within the discretion of the trial judge as set forth in Article I Section 12 of the California Constitution. Second, the court’s ruling did not undercut the constitutional right to monetary bail. The court stated that release on own recognizance and release on bail are “alternative and complementary systems.” Shifting the burden of proof to the state in an OR hearing did not affect bail release in the court’s opinion.

Van Atta was a landmark decision that addressed the concerns of the pretrial population in a major way. Rather than having to fight to prove to a judge for release, defendants in theory can sit and watch the state struggle to argue for why a defendant should remain in custody. In subsequent posts, I will address how the court’s ruling plays out in the courtroom. I will attempt to address whether prosecutors are held to their standard of proof and whether Van Atta has made any meaningful impact on the pretrial detention population.