subject: Innocent Until Proven Guilty? The Effect Of Bail [print this page] As a criminal defense attorney, I hear cringe when I hear people talking about the criminal justice system use the phrase: "Defendants are innocent until proven guilty." As all too many criminal defendants have found out, this axiom is rarely true. The restrictions and burdens that are placed on defendants before they are ever brought to trial are often astounding. The worst of these is bail.
Bail typically arises after the defendant has been arraigned, usually at the same hearing. The arriangment is the actual start of the criminal court proceedings against the defendant. It occurs afteer the police have investigated the crime and the prosecutor has decided to file charges. In the case of many crimes such as DUI, the defendant is arrested at teh time of investigation, and then released until the prosecutor files charges and sends a notice of arraignment to the defendant.
The defendant has a constitutional right to a criminal defense attorney during the arraignment. The court will determine if probable cause for the charge exists, the complaint will be read, and a plea will be entered (Always plead not guilty!). Then the court has to determine what to do with the defendant until trial. The court can either release the defendant subject to certain conditions (no more criminal violations, no driving without a license, wearing an alcohol monitioring device, etc.) or to remand the defendant to custody until they can post bail.
The court is supposed to determine what to do by considering the risk of flight of the defendant and the danger the defendant represents to the community. Unfortunately, more and more judges seem to require high bails in order to appear tough on crime. Bails seem to be based merely on the severity of the crime charged and not on the actual merits of the defendant. Defendants and their families then become responsible for paying 10% of the bail as a fee to the bondsmen.
For a family struggling to make ends meet, this choice can be devestating. They must either pay thousands of dollars in order to keep their father, mother, husband or wife out of jail and with the family during this traumatic time, or allow the one they love to sit alone in a jail cell. Often, the ones who can't make bail are the bread winners for the family. Without their income, it is the family who suffers the most. And all of this pain and misery occurs before the defendant is found guilty.
We need more good criminal defense attorneys who are willing to stand up on this issue to make sure that the accused are not unfairly punished prior to actually found guilty.
