The criminal-justice system is scrupulously protective of some rights, such as the right to counsel or the right to a jury trial. The trial process is as long and involved as it is because of the importance of protecting those rights, especially the ones in the Fourth, Fifth, and Sixth Amendments (including counsel, jury, and confrontation) and Article, Sections 11 and 12 of the Oregon Constitution.
The system does a much poorer job protecting those rights that are not central to criminal administration. Trial courts are perfectly happy forbidding the defendant from living in his or her own house if the defendant is charged with an offense against a spouse. That’s true even if the alleged victim wants the defendant to come home. Often, the defendant and victim together can’t afford to maintain two residences or need to work together to take care of children. Nonetheless, following an accusation of a domestic violence assault, the courts will forbid a married couple from having contact with each other until the criminal case is resolved. So, for example, the defendant may be kept in jail until he or she agrees, in a written release agreement, to stay away from the victim.
I think that’s illegal, but it is hard to address. Release conditions are typically set by a jail official, not by a judge, and I don’t think that jail officials have the authority to make such decisions, or to enforce them. Courts will treat release agreements like orders from a judge, enforceable by contempt. Judges, in my experience, are reluctant to change those release agreements, although it can happen in the right case.
If the trial judge won’t modify a release agreement, it’s possible to ask the Oregon Supreme Court to order it through a petition for a writ of mandamus. A writ of mandamus is an order from a court that someone do something, so it might be an order from the Supreme Court that the jail release the defendant with no conditions, or that the trial court not enforce the conditions. The Supreme Court only takes a small percentage of those cases presented to it, but it might be worth it in a case that would take a long time to get to trial. Courts need to be more sensitive to the real-world problem caused by forbidding the defendant to go home.
