“Bail and Time-Served Plea Offers”

The title of this post is the title of this new article authored by Michael Smith now available via SSRN. Here is its abstract:

Defendants in criminal cases are routinely detained pending trial because they are deemed dangerous.  In some of these cases, these defendants are detained without bail, in others, bail is set at an amount which defendants are unable to pay.  These determinations are made after brief, minimal hearings, often based on the charging documents and the defendant’s prior criminal record.  To those defendants who are detained, prosecutors frequently make time-served plea offers — effectively giving them the option to go free in exchange for a conviction.  Refusing the offer, however, means the defendant remains in custody due to the court’s dangerousness determination.

This is absurd.  For pretrial release purposes, these defendants are too dangerous to release, but for plea purposes, these defendants can be deemed to have served their time and go free upon accepting the offer.  I propose that time-served plea offers trigger a mandatory, immediate review of defendants’ pretrial release conditions.  Unless a court confirms that it would reject the plea outright, the defendants’ dangerousness cannot be a part of this reconsideration.  Defendants who might otherwise be detained on inapplicable dangerousness grounds may consider the time-served offer without the pressure of remaining in jail.  More broadly, this reform requires courts and prosecutors to reckon with otherwise routine release determinations that often determine the outcome of criminal cases.