Judges holding bail hearings in urban and suburban courthouses dispense “stranger justice.” All they know of the defendant before them is in the court file. For rural judges, it’s different. Enmeshed in a “density of acquaintanceships,” they’re likely to “have personal information external to the court record about many defendants … .” (P. 187). So far, so good: more information should lead to better-informed bail determinations. But the other side of the coin is that rural defendants have access to fewer bail administration services, like substance use counseling, monitoring, and bail bonding. More knowledge and fewer resources means that a rural judge might know exactly what a defendant needs to ensure their safe return to the community and subsequent appearance at trial – and yet be unable to provide it.
That is the core contention of Jordan Gross’s Pre-Trial Justice in Out-of-the-Way Places – Including Rural Communities in the Bail Reform Conversation. The article interrogates whether national frameworks for bail reform fit rural Montana communities. But quietly, it’s more ambitious than that. The article assesses the proposals of the Uniform Law Commission’s Pretrial Release and Detention Act (UPRDA) as applied to rural Montana. In the process, it reveals the frailty of “Uniform” anything in the context of bail reform. It also models a better way forward: courthouse-by-courthouse solutions sensitive to local conditions. Bail reform, we learn, is not generalizable. Gross’s approach holds promise for jurisdictions both urban and rural – but it will be resource-intensive.
Because the vast majority of bail determinations are made by state courts, state legislatures appear at first glance to be the institution best able to reform the institution. The Article complicates this picture: states that are “rural” by statewide population density contain urban areas. Uniform statewide practices will work well in some places and poorly in others. Even the county is too large a unit for context-sensitive top-down reform. Take two communities in Yellowstone County. That drug counseling and monitoring are available in Billings, the largest city in Montana, is of little use to the defendant in Custer – a town of 145 nearly an hour’s drive east.
Rural legal scholars have long contended that our society’s programs and policies are based on an “urban assumption.”1 The same is true for legal reform movements. Gross points out that Washington, D.C., long hailed as a national model for bail reform, operates under a set of conditions very different from those present in rural communities. For one, many “rural” states have a right to bail in their state constitutions, thus erecting a hurdle to moving to a no-bail preventive detention model. And urban model jurisdictions like D.C. have a much greater density of professionals (like substance abuse counsellors and bail bondsmen). This empowers judges to tailor pre-trial release to the needs of their clients. Risk assessment tools, embraced by the UPRDA and intended to scientize release decisions, may be validated in one jurisdiction but work poorly in another.
Gross brings empirics to back up her contention about the limited legitimacy of risk assessment tools with rural judges. The University of Montana’s Rural Justice Initiative surveyed judges in the state, and the results were revealing: they are interested in alternatives to incarceration, but many found existing risk assessment tools unsatisfying. These tools use only the information about the defendant in the court file; rural judges knew more. And their outputs may be based on urban assumptions about availability of pre-trial services, which rural judges find inapplicable to local circumstances. They thus tended to deviate from the tool’s suggestion, usually in the direction of imposing more onerous conditions of release.
This challenge is compounded by the fact that validating a risk assessment tool for local circumstances is resource-intensive. Using national criminal justice data won’t work. Gross observes that American Indians are “vastly over-represented in the justice-involved populations in Montana . . . but the [American-Indian] demographic is frequently completely absent from national criminal justice statistics” (P. 218). State-level data is limited and poorly validated; county and community-level data is practically nonexistent and expensive to collect.
Enhanced access to appointed counsel – another UPRDA suggestion – maps poorly onto rural Montana. While the state’s public defender system is beleaguered, Gross’ research shows that nearly all defendants are already represented by counsel at bail hearings. She suggests further research into whether improving the quality of this representation, which is often pro forma, would see more defendants released pre-trial – or whether limited local resources would be better spent on improving access to other pre-trial services and support systems.
Gross asserts that reducing rural pre-trial detention will require ultra-local efforts like the amendment of local court rules and county prosecutors’ office policies. Even the commercial bail bondsman, much-maligned in the national bail reform discourse, will have a role to play in communities with few pre-trial services available.
This all sounds painstaking. Gross acknowledges this, and she yields that it lacks the pizazz and potential for universality that attract attention and funding from national non-profits. But I contend that the same density of acquaintanceship that makes national reform models poorly-applicable to rural jurisdictions affords them an advantage: it is harder to incarcerate one’s neighbor than a stranger. This opens the door to mercy in criminal procedure, of the sort theorized by Stephanos Bibas.2
Bail reform is not generalizable, but Gross’ approach to localizing it is. Her article is therefore a must-read not just for scholars and practitioners in Montana, but for policy-makers in every jurisdiction who seek to adapt bail reform to local conditions.
- See, e.g. Debra Lyn Bassett, Ruralism, 88 Iowa L. Rev. 273 (2003).
- Stephanos Bibas, Forgiveness in Criminal Procedure, 4 Ohio St. J. Crim. L. 329 (2007).
