Posting bond before criminal trial - How can this be justified?

Great Debates
1

We just had a murder in my locality (which is a rare thing). The guy’s bond was set at $1 million. He’s poor (he asked for and received a court-appointed attorney), so he will be sitting in jail for months until his trial.

As anyone with some level of familiarity with the court system knows, bond amounts typically rise with the seriousness of the crime, and other criteria are also factored, such as flight risk, potential harm to society if the person is free before trial, etc.

The net effect of this, however, is a have and have-not system. If you’re poor and accused of, say, attempted murder, you will be incarcerated until your trial, because your bond will be impossibly high. If you’re rich, however, you will be able to post your bond even though it is high, and be free at least for the time being.

What is the justification for this system?

2

Frankly, speaking as a defense attorney, it’s all bullshit.

You’re right, Milo, that it has everything to do with whether or not a person has money.

However, the rationale that is used to justify cash bail is twofold.

In New Hampshire, the test for whether or not bail is appropriate is if the person is a risk of flight, or is a danger to the community. Theoretically, answer no to those questions, get personal recognizance bail.

Reality, as always, is more complex. If a person is charged with something particularly icky, they’re more likely to have to post cash bond. The theory is that this will ensure that they appear at their court appearances, since they’re on the hook for the money previously posted.

If the person doesn’t have ties to the community, then cash bail is sometimes required for the above reason- to ensure future appearances.

Also, a lot of times they set cash or surety bail- which means that a person can use a bail bondsman and put up some collateral- so, in the million dollar case, the person may not have put up the entire amount in case, but rather have posted 10 percent and then put up the collateral for the rest. Obviously the poor don’t have access to a million dollars worth of anything, so no bail for them.

However, I also have to say that many times my job as a defense attorney is a lot easier if the person is locked up- they don’t go out and commit any new crimes while they’re out on bail, and jeopardize their case.

blanx

3

Can I slip in here and ask (as a non-American) whether bail can simply be refused? This is quite common here (Australia).

4

picmr-
depends on the jurisdiction and the charge, answer is generally yes- especially if it’s like 1st degree murder.

5

>> How can this be justifed?

On the grounds that everyone is considered innocent until a jury decides otherwise? Before the trial the justice system is only interested in securing the defendant will appear to face the jury and that he is not likely to commit crimes in the meanwhile. The judge would allow a defendant to remain free if he (the judge) believes the defendant will not flee. The judge has discretion in considering many factors like if the defendant has strong ties to the community or not, the defendant’s character and past, and whether the defendant posts bail in an amount that would make him want not to lose it. The amount of bail that would make a defendant not want to lose it will be different depending on the defendant’s means and would be taken into account by the judge. $50K may be a lot to an average joe accused of stealing something but nothing for a millionaire accused of murdering her husband.

I cannot see why you would have a problem with letting people free if the can provide reasonable assurance that they will not flee. Money is only part of the equation. But yes, having money to post bail will allow someone to remain free who would otherwise remain in custody until their trial. So what? Also if you have a stable job and family you would go free while a bum with no ties or fixed address would remain in custody. So what? Keeping the defendant in custody in not punishment, it is a way of assuring he will not disappear. I have no problem with the concept whatsoever. You have a better idea? Keep everyone in jail? So you keep an innocent guy who is no risk of fleeing in jail because another guy might flee? Or just set everyone free? That would be fun. See how many people accused of big crimes show up.

6

sailor

**
And it can be proven that wealthy people who can afford to pay bail are more likely than poor people who can’t to stick around and face a jury?

**
My, sailor. You’re rather flippant about up to a year of someone else’s life, aren’t you?

7

Milo:

>> can be proven that wealthy people who can afford to pay bail are more likely than poor people who can’t to stick around and face a jury?

It is up to the judge’s discretion to set the amount considering all circumstances. I thought I had explained this. Wealth is only one factor and the amount set for bail would take this and others into account. The judge is not concerned with how rich or poor the defendant is, only with what conditions will make him appear in court.

>> My, sailor. You’re rather flippant about up to a year of someone else’s life, aren’t you?

Not at all, on the contrary. My point is that all means should be used to try to have people go free unless they absolutely have to be in jail as a way to assure they will be there for their trial and not commit crimes in the meanwhile.

Your point seems to be that you do not like the present system. My point is that, since I cannot think of a better one, it is the best one I can think of. If you have a better one I would like to hear it. Just saying what we have is not perfect isn’t enough. You need to propose something better. So, do you have a better system?

8

Yes. That is, a person who has a million dollars at stake is more likely to stay and fight a criminal charge than a person who loses nothing by fleeing the jurisdiction. Do you disagree with that statement? There are some crimes which no amount of money will make it worth staying around to be convicted of (capital crimes) and in these cases no bail is set.

We cannot let people go free between arrest and trial without some sort of system to make it likely that they will appear for that trial. Right now, having the defendent post bail seems to be the fairest way to do so. The problem with that system is that those people who have no material possessions that they wish to keep cannot use this system. So as long as we are stuck using hte bail system, some people will get left out. My question to you is: Should we refuse to let anyone post bail because some people cannot?
Perhaps in the future a more equitable technique to insure people’s appearence at trial will be worked out (such as those ankle-thingys). But until then, the only solutions are to let some people go free before thier trial or to let no one go free before thier trial–there is no way to let everyone go free before thier trial and have anything that resembles a criminal justice sysytem.

9

I don’t know who the OP is, but he’s stolen Milo’s computer. (joking, really)
I suspect what Milo is referring to, is the disparity of bail vs. income.

If we understand that bail is to insure that the defendant appears for trial (and I know that Milo understands this too), then it should be set with that aim in mind. As in, the components of the decision should include:

  1. seriousness of charge.
  2. defendants ties to the community
  3. relative flight risk for this defendant on ** this ** charge and
    4 ability of defendant to pay such a bond.

Defendant A, who is wealthy, has ties to the community, should get a reasonable bail to insure their appearance.

however, so should defendant B who has ties to the community but is not wealthy.

(Manda I’m not a big supporter of the ‘ankle thingies’ as a tool for ensuring appearance in court. All it will do is assure the court that the person is within the scope of the device during their ‘curfew’ times. they certainly could manage to get away, should they so desire).

10

wring understands what I’m talking about.

How does it pass a Constitutional, equal protection smell-test to have one individual (with money) have a realistic means of not being incarcerated before trial; while another individual (without money) does not have that same reasonable opportunity?

I believe in theory, a judge is charged to set reasonable bail, weighing a variety of different factors that we’ve been discussing. In practice, however, it seems that if you are poor, you’re sitting in jail. If you’re not, you don’t have to.

And bail bonds don’t do the trick for most lower-income people. 10 percent of $100K is still ten thousand dollars.

**
Who died and left you boss?

11

Part of the problem Milo is that it’s really tough to figure out what will matter to whom. Sometimes the person would rather flee jurisdiction and let the bail go (witness the rich kid from the East coast who played in Europe for years avoiding 2 rape trials. Kelly??? something or other).

But absolutely I don’t see the sense of an unrealistically high bail - for a lot of those folks, bail of a grand would be enough to keep 'em in jail. IMHO, it allows the judge to appear to be ‘tough on crime’ and we all know that’s the way uh-huh, we like it, uh-huh, uh-huh.

For those of you not catching the drift - our laws are supposed to be applied fairly. He’s not saying that they should have no bail, but for some one who’s realtively a middle class citizen, to come up with a cash bail (the 10% the bail bondsman would require) of more than a grand or two would be an insurmountable task. IOW, in those cases, you’d have some one merely accused of a crime, who, because of their lack of personal disposable/liquid assets would have to remain in jail pending trial (can be quite a while). This would mean not only that they’d be less able to help with their defense, they’d also be less able to pay for their defense (ya don’t generally get work release when sitting in jail before trial).

So, not looking for no bail, just that in order for a judge to set a bail higher than the person could reasonably come up with, they should have to defend that amount, just as they have to defend the denial of bail. Defacto denial by setting it artificially high shouldn’t be allowed.

12

If someone doesn’t have the cash to post bail, they can ‘post’ a relative (with the relative’s consent). If the accused doesn’t appear, the relative is placed in jail until such time as the accused re-appears.

Sua

P.S. I started writing this as a joke, but on second thought it may not be a bad idea.

13

>> How does it pass a Constitutional, equal protection smell-test to have one individual (with money) have a realistic means of not being incarcerated before trial; while another individual (without money) does not have that same reasonable opportunity?

Well, and, why of two guys equally poor, one with a stable family life, stable job, and ties to the community would go free under his own recognisance while another with none of these things would have to wait in jail? Is that fair?

Milo, we are going around in circles. You complain about something you seem to not like but you offer nothing better to replace it.

Suppose the question is submitted to the Supreme Court. What do you expect them to do: (a) Say they cannot think of a better system and therefore this one must stand or (b) throw their arms up in despair and declare the dissolution of the entire judicial system. What would you vote?

Sua said: If someone doesn’t have the cash to post bail, they can ‘post’ a relative (with the relative’s consent). If the accused doesn’t appear, the relative is placed in jail until such time as the accused re-appears.

I propose we ‘post’ Milo. Maybe it would help him find a desirable solution.

14

wring dixit: not looking for no bail, just that in order for a judge to set a bail higher than the person could reasonably come up with, they should have to defend that amount, just as they have to defend the denial of bail. Defacto denial by setting it artificially high shouldn’t be allowed

Well, the judge is supposed to have discretion and, when you take it away, like in mandatory sentences, then you open another can of worms. Who should the judge justify his decision to?

I have a better idea. When a judge lets someone out on bail and that someone commits a crime while out on bail, the judge should be held personally civilly responsible for the act and its consequences. If the person commits a major crime like rape or murder, then the judge should suffer the same fate at the hands of some willing prisoner. How’s that for having the judges be prudent before they let someone out?

15

Deep breath, sailor, deep breath.

I think Milo’s reasonable solution is that the current system can be applied more equitably.

Of the factors listed in determining bail, there are two issues. First, having wealth is often assumed to mean greater ties to the community. Thus lowering the percentage of net worth applied toward bail to coerce appearance. Secondly, the severity of crime is used as a factor in the dollar amount rather than a binary factor. The decision should be “Grand theft auto… bail/no bail?” rather than “Grand theft auto… minimum $50k bail.”

All I am saying is that the judge should strive to decide if bail is appropriate based on the suspect’s prior record, the severity of the crime and an analysis of connection to the community that is not strictly a function of wealth. In my mind, this should be a yes/no decision. If the judge decides that bail is appropriate, then the bail should be set at a level which will assure their appearance given their income level.

So shoot the high horse, sailor-boy, we aren’t trying to eliminate the system. If it went to the Supreme Court, it is my hope that they would provide guidelines that would help the system be applied more equitably.

16

sailor Judges currently have discretion. But, in general, if they are going to deny bail, they generally give a reason in court (same as when they sentence outside of normal guidelines). as examples:

judge denies bail

judge orders bail

judge orders reduction in bail

judge denies reduction in bail

My point, again, was that to set a bail at a number obviously outside of the reach of the defendant is to in effect deny bail. Yes, they have the discretion, however, an explanation is generally called for in court when the court goes outside of guidelines.

Perhaps the solution would be to set specific guidelines for bails - using sliding scales for seriousness of offense, adding/subtracting percentages etc for ties to the community, and also availability of liquid assets. Yes, this is possible (currently, for example, the DOC uses a very elaborate system of points that guages potential for voilence, risk to property, sentencing guidelines etc.)

(by the way, what’s “dixit”?)

17

Sliding scales can only go so far. If the accused is an indigent whose sole possesions are the clothes on his back and half a bottle of cheap tequila, what can you do? Hold the liquor in hopes that he’ll come back for it?

Also, bail is not only supposed to help ensure the return of the suspect for trial, but also to offer rewards or hire bounty hunters if he doesn’t. If the bail isn’t high enough, you end up having to supplement the reward with public money. Or post stupid wanted posters: ‘John Smith-Wanted for Sexual Assault and Resisting Arrest. Anyone providing information leading to the arrest of this dangerous felon will be eligible for a reward of six dollars and seventeen cents.’

18

Wring, “dixit” means “said” in latin and is often used when quoting.

>> My point, again, was that to set a bail at a number obviously outside of the reach of the defendant is to in effect deny bail

Well, I do not quite agree. The judge thinks (and says and rules) “I believe $10,000 is what will guarantee I will see your face again”. So, why is he to judge whether you, as a defendant can or cannot come up with it? Would it be better if the judge would say “I believe $10,000 is what will guarantee I will see your face again but, since I know there’s no way you can come up with that i will just deny bail”? I don’t think so.

A bum with no ties may not have the means to post even a small amount but I see nothing wrong with the judge setting bond at $10,000 if that is what he estimates it takes the guy to think twice about running. Maybe he can get a friend to bail him out, maybe the bondsman will, that is not for the judge to resolve.

keeper, I was only joking (well, mostly…) but you say “we aren’t trying to eliminate the system”… well, waitaminute! Milo said: “How does it pass a Constitutional, equal protection smell-test to have one individual (with money) have a realistic means of not being incarcerated before trial; while another individual (without money) does not have that same reasonable opportunity?” which I assume to mean he does not believe this to be constitutional and, I assume, he would not favor doing something he believes is unconstitutional. In that phrase he is not concerned with how the thing is applied in practice but rather with the principle of it.

My view, of course, is that it is perfectly reasonable and perfectly constitutional and, most important of all, we have not come up with anything better. As to how it is applied in particular cases, that is another question. I am sure you can find many instances where you could say bail was set unreasonably high and I am also sure you can find just as many where it was set unreasonably low. here in DC there have been notorious instances of guys commiting crimes (sometimes to prevent witnesses from testifying)while out on bail or just disappearing.

Disagreeing with a particular case is not the same as disagreeing with the principle behind it as Milo seems to do.

19

sailor: I can’t say as I do have a perfect solution. My OP was to ask a question, but a question that has a debatish sort of answer. It wasn’t to say, “This system is absolutely screwed; it absolutely must be replaced immediately.” Were that the case, then your fascination with the fact that I don’t have a perfect alternative would have more bearing.

As far as solutions go, I’m not as opposed to a tether system, for lower-income individuals when deemed appropriate, as wring seems to be. If a cost-effective system could be developed that provides more regular, frequent monitoring, with realistic enforcement for violators. (Yeah; that will cost money. If it can’t be done, it can’t be done.)

Your turn on the hot seat, sailor:

**
Please explain how a system that treats those with money differently than those without when it comes to incarceration before trial is justifiable under the equal protection clause of the Constitution.

20

>> Please explain how a system that treats those with money differently than those without when it comes to incarceration before trial is justifiable under the equal protection clause of the Constitution.

I thought I had already answered this. It is not a question of money but of the whole picture. You could also say it treats married people with children better than single men. You can say it treats sociable people with community connections better than loners. You can say it treats people who are sick better than people who are healthy. It treats the very elderly better than the younger. You get the picture?

By your reckoning, to treat all equally, either they all get bail or none do. The first alternative is not viable and the second is even more unfair.

The point is that the judge should not put anyone in custody unless there is a compelling interest to do so. People’s circumstances are judged individually and money is just one of them. A rich guy with a history of flight would not be given bail while a poor guy with a history of appearing in court would.

Why are you so fixated with money? There is nothing wrong with having money and the fact that it may help you post bail is just a side effect.

I am single, I have homes in different countries, travel often and can move easily as I have few ties. If a judge were to consider my case compared to a guy who is married, has children, etc, I think it would be much more likely the other guy would get out on bail before I did. Is that fair? I dunno and I don’t care. I do not believe we can make a perfect world or even a fair world.

What we have may suck but if we cannot think of something better then it is the best we have and we better keep it.

I get these arguments from people all the time. In China people will point out to me all the weaknesses of democracy: people are dumb, they can be misled, it divides the country, yadda, yadda.

They expect me to defend democracy like it is perfect but of course it is not perfect, it is a lousy system. Of course it is full of weaknesses and holes. BUT, you know what? All the alternatives are worse.

So I get a bit tired of people pointing out how bad this or that is, how unfair this or that is. I do not have to prove it is not bad or not unfair. If you think you have a better alternative, then let’s talk about it, but if you just want to rant that everything is so bad and not offer a better alternative, then I am not interested. (I am refering here to the generic “you” not you in particular)

Life is not fair. Too bad. I can point out many things that would be fairer. The only trouble is they make things worse, rather than better. Let’s be realistic.