The hypo’s revised to 2 weeks. But that does assume that he would have been offered the plea and taken it in the case of being broke. Some are offered plea deals, but it hardly seems universal. Maybe he could have gotten a slap in the wrist and avoided punishment - but considering the rest of the hypo’s (he has an excellent defense and doesn’t want it on his record) them perhaps he would have rejected the plea.
I have been on the wrong side of the law more times than I can count. I generally do have empathy in such scenarios - but this guy was literally told "if you are stupid and write a rubber check for the bail, or call that guy, or consume alcohol, you will come back to jail for weeks or days or months. So don’t be dumb until after your trial date, ok? " And the guy said “ok.”
That’s the offer now. The original offer was
[ul][li]Plead guilty and get a slap on the wrist[/li][li]Reject the plea and get released on bond, and abide by some very minimal rules[/li][li]Reject the plea, don’t abide by the rules, and then you can spend time in jail awaiting trial.[/ul]Plus, it is not a very realistic scenario. A first offense misdemeanor? The vast majority of the time, agree to pay a fine and do a little probation, and at the end of it the conviction is vacated and Smith can truthfully answer the question “have you ever been convicted of a crime?” with No. And he is out the fine - but he doesn’t have to pay a lawyer to represent him at trial. [/li]
Although I have the gravest doubts that a person who can’t abide by the conditions of bond is going to be able to abide by the conditions of probation, in which case he is back where he started.
Most criminal defendants are stupid. Being an innocent criminal defendant doesn’t raise your IQ any.
“But I’m innocent!”
Great - act like you’re innocent, or at least like you got a brain in your head or an ounce of self-control.
Regards,
Shodan
Honestly the only thing I’m hearing here that can be construed as unethical is that plea bargains exist. The whole business with the bond is a smokescreen for a smokescreen - the bond business is just noise covering for the fact that if he couldn’t make bond he’d have to sit in jail until the trial, and the sitting in jail until the trial business is just a basic fact of how the justice system has to keep an eye on people who haven’t yet been cleared of suspicion. Neither of these facts is shady or coercive. The only dodgy bit is that plea bargains exist, tempting people to short-circuit the jury process at the minor cost of their own presumption of innocence.
And yeah, I’d be willing to listen to arguments that plea bargains are unethical - regardless of the other circumstances of the situation.
It seems to me that this is a lot of what you’re argument is; that bail has changed from a monetary amount to a bunch of conditions.
Here is an article (payway) in the New York Times about the dismal conditions of the New York courts.
The article explains it well and I don’t have a lot of time, but basically people are forced to appear again and again and again, having to take time off work, spend far too much time there, and most eventually take plea bargains to simply get it over with, even if they have evidence of their innocence.
That is unethical.
A buddy of mine at the Public Defender once remarked that if every one of their clients asserted their right to a speedy trial, the whole system would collapse. The DA’s office lacks the resources, the court calendars are too backed up, cases would be getting dismissed left and right. But it would have to be a unified effort; the defense attorneys usually need time to prepare too, so anyone whose case was enough of a priority to go to trial could get burned. It’s almost like…hmm, what’s that thing called? Some type of dilemma?
It is not, in my opinion, possible for a plea agreement to be both attractive and just. If the result is just, then it is not attractive. If it is attractive, it is not just (assuming the person is even guilty).
The way it becomes attractive is by either cranking up the penalty if you have the temerity to try to defend yourself and fail, thus effectively penalizing the accused for having the gall to insist the state actually prove their case, or by lowering the penalty until it is no longer the appropriate penalty for the crime.
After all, if the deal was ‘plead guilty and we’ll skip your trial, you go to jail for the same amount of time you would go to if you went to trial and were convicted’, then there’s not much incentive for the accused to do it, even if he’s guilty. But if not pleading guilty results in a heavier sentence, then the person is being punished for asserting their innocence and insisting on their right to a trial.
If I gave you the choice between being held for months in my basement or pay me € 1000, I don’t think you would describe it as having volunteered or agreed to give me € 1000.
Having the choice between a prolonged stay in jail or having to respect various limitations isn’t agreeing with anything. It’s having these limitations imposed on you by the judicial system.
I am not an American lawyer (I am a solicitor in Australia and just short of my requirements to apply as a solicitor in the UK, but will be one in the next few months).
It seems odd that there’s no middle ground, but US law is quite harsh on bail.
Here, you have a rebuttable presumption that bail is granted, except in circumstances of rape and murder. It can be rebutted to show that the accused is a flight risk or that they will interfere with witnesses or be a danger to the victim, and therefore should not be bailed, but that’s a high bar.
Bail is not money bail, as it is in America - you can be asked for a surety, but that’s rare.
In any case, conditions on bail are normal/expected - stay away from certain areas, live at another address or bail hostel, don’t drink or do drugs, don’t associate with people, wear an electronic monitor for a curfew, give up your passport, etc. It’s what you tell the judge your client will do to get round a prosecutorial argument that your D is a risk in any of the areas.
If you break bail conditions, as in the US, that is also a crime. However, here, it doesn’t necessarily mean you go directly back to gaol, instead the judge can do what he thinks fit, from a stern lecture, to stricter bail conditions, to gaol.
In terms of the accused, well - he did have his chance to be free until trial. The argument that it’s not a crime to talk to Snuffy Smith or to have a beer doesn’t run - it is a crime (in the US as far as I’m aware) to break your bail conditions - so if those are the conditions, and you break them, then you have committed a crime.
Sure you might be innocent of assault, but you are guilty of breaking bail conditions and that means you accept punishment, which you, the accused, knew when you accepted bail and conditions.
Are the consequences of sitting in gaol fair? Dunno, that’s a matter for the judge and the state. Were the consequences of breaking bail known and agreed to? Yes. Did the D in your (hopefully) hypothetical break those conditions and must therefore suffer the consequences? Yes.
The plea is separate entirely from the breaking of bail. The prosecutor (the equivalent of our CPS) might well make such an offer. You don’t mention if such an offer was on the table prior to the bail hearing, but I suspect it was or would have been if you asked for it.
So my thoughts are that your argument doesn’t run and that you’re conflating several things together to make a point that the state is being unfair to the defendant by gaoling him due to him breaking bail conditions and offering him a plea deal. I think the point is that the plea deal and the breaking bail conditions are two different things.
I would agree to pay the money and make the promise not to drink or contact John Doe, then i go to the police because some weird person kidnapped and made me agree to pay him money and make weird promises, or he’d kidnap me again.
There’s something of a move on in the USA to stop using cash bail, as it basically allows the rich, or those with rich friends, to buy their way out of jail while the poor often wind up jailed.
New York State just eliminated cash bail for most offenses. I think a couple of other states have done so also. – it seems to me that another way out of the problem would be to state amount of bail as a percentage of resources rather than as a flat amount; but that would have its own problems, as first you’d have to define which resources counted and then you’d have to require disclosing them all, which would both be timeconsuming for both courts and defendant and probably an unreasonable invasion of privacy for what are often low-level offenses; though I think if defendant applies for a public defender they probably have to disclose anyway.
Orders of protection are another issue. And I don’t think violating an order of protection is a minor issue; even though the violation in this case has been phrased to make the specific case sound as benign as possible.
And in the situation described by the OP, you’d agree to promise whatever they ask you to promise, and have no recourse.
That’s not a free agreement. That’s an agreement made under duress. That’s it’s imposed by legal authorities doesn’t make it any more free. You can’t say “well, you made a choice so if you don’t follow the “agreement” and end up being bars, that’s entirely your fault”. Do this or go to jail, lose your job, your housing, etc… isn’t in any way a meaningful choice.
If the time spend in jail for not respecting conditions that have been imposed unto him whether or not he’s actually guilty in fact exceeds the time he would have to serve if actually found guilty I definitely see it as a significant problem.
On top of it, he shouldn’t have to go through an extended stay in jail because the judicial system is unable to process his case in a timely fashion, anyway. It’s absolutely not his fault if the courts are underfunded or whatever, and he shouldn’t suffer consequences as bad as an extended stay in jail simply because his neighbors don’t want to pay more taxes. If they don’t want possible criminals on the loose, they should fund courts. If they don’t want to fund courts, they shouldn’t fix the problem by locking untried people in jail and/or force them to “agree” to a variety of conditions to stay free.
I assumed that cash bail in the USA was based on ressources. In all the years spent watching American series or reading about the American system, or visiting this board, it never occurred to me even once that they could be a flat amount.
If it is so, it’s absolutely outrageous and obviously and openly means that there’s a justice for the poor and another justice for the rich.
The amount is set by a judge. But the amount will be set as “x dollars”, and apparently available resources aren’t usually part of what’s taken into account.
See, in 1789, Einstein hadn’t been born yet for another 90 years. Since relativity didn’t exist yet, it didn’t occur to the FFs that “excessive” doesn’t mean the same thing to everybody.
That’s fine. It’s not a “free agreement.” And when you violate the conditions of your bond, feel free to argue that you didn’t really agree to the terms because you just didn’t want to be in jail, so you would have agreed to anything without really meaning it, so it’s not fair to hold you to those conditions. I’m sure that will work out.
I’ve been bonded out. I had a checkered youth. I never violated bond. I don’t remember any particularly rigorous conditions, TBH. But if one of the terms was “don’t talk to that person,” whether or not that was then backed up with an order of protection, I would have damn well *not talked to that person. *
And if i did, I’d expect to go back to jail.
I agree that there are issues with our judicial system. Lots of them. I’ve tried to clarify, repeatedly, what is unethical in this scenario. If it’s the offer of a plea deal, is it equally unethical to offer the same plea the guy who can’t afford the bail at all? Or is it only unethical to offer the plea to the guy who had the opportunity to stay free but couldn’t manage to respect the conditions of his freedom?
A few clarifications. At least in my state, violating a condition of bail is not a crime. It is an act which can get your bail revoked and jailed awaiting trial. Not showing up to court when ordered is a separate crime, however.
And for the purposes of the hypothetical, there was not an order of protection in place. It was only a bail condition.
I have mixed feelings about the plea bargaining system, but that’s not what I am upset about.
I agree with the argument about the person too poor to post bail in the first place, but that is not my main bitch.
What I consider unethical is the large picture of what the prosecutor is doing. He or she has no problem whatsoever with releasing the defendant today and he is free to go about his business…but only if the prosecutor gets a guilty plea, regardless of the ultimate guilt or innocence of the defendant.
But that same prosecutor knows that he or she is, for all intents and purposes, denying this defendant the right to a jury trial because the choice between doing even 2 weeks in jail and going home today is no choice at all (and, again, it isn’t really 2 weeks at all).
If it is okay that he gets to go home today, don’t argue to the judge that because the defendant violated the terms of his bail, he cannot be trusted, and therefore needs jailed pending trial to protect the “victim.” Whether he pleads guilty or insists upon a trial, he presents the same potential danger, so the prosecutor is being dishonest with the court by saying he needs jailed (because he is otherwise willing to let him go), and is knowingly acting against the interests of justice simply to get a guaranteed conviction.
I donno. Isn’t that that judge’s job to listen to the two sides and made the decision? How does it fall on the prosecutor? IANAL, but do judges defer that much?
Wouldn’t the judge look at the degree of the violation and give a warning rather than automatically revoking bail, or do they simply revoke in all cases?
Next point. I’m fairly liberal and feel that the US justice system tends to be overly harsh on many of the petty criminals/ poor
people, but at the same time I wonder how you have an effective system if there are no punishments for bad behavior. Are you proposing that nothing ever bad happens to people who violate the conditions of their bail, except that the judge asks them to kindly be nice?
What do you believe are just consequences? Should they never face jail despite repeated offenses, for example? Let’s say that the just just wash his finger at them, threatens to jail them the next time and lets them go. If they were to do the same thing, should there never be consequences?
damn autocorrect, fixed in
my quote
In Canada, his case would have been dismissed due to breaching his constitutional right to a speedy trial.