Monday, December 25, 2006

Bail - Its true purpose and how it is subverted

Some time ago I had a brief rant about criminal injustice and I mentioned bail at that time. The bail issue came up recently on a couple of my cases so it's in my head again.

First, the true purpose of bail -- to make sure the defendant shows up for Court. See People ex rel. Lobell v. McDonnell 296 N.Y. 109, 71 N.E.2d 423, 1947. It is particularly important where the defendant is perceived as a flight risk. OJ's drive in the Bronco is a good example of how a defendant can ensure he is denied bail.

But what about where the defendant shows no sign of being a flight risk? It is nevertheless very common for judges to set bail at a very high level in some cases. Two of my recent cases are great examples. In one, my client grew up in the area, owns a home, is married, has kids and a substantial extended family, has a stable job with the government, and faces one of the weakest prosecution cases I've ever seen on relatively minor felony charges. Bail was set at $90,000.

If you're about to face a judge who's going to decide bail read that paragraph above again.  If you live in the area, own a home, are married, have kids, and have a job, those are all things you should say to the judge before he sets bail. It's hard to know when to say it, but at some point, say this: "Your Honor may I be heard on bail?" Wait for the judge to give you a chance to speak. He or she probably will. Then say: "Your Honor, I've lived in this area for _______ years. I own a home. I'm married and we have ___ kids. I have a steady job. These are important factors the law says you're supposed to consider in setting bail. I'm not a flight risk. This is my home. Please release me on recognizance."

However, do not talk about the strength or weakness of the prosecution's case. You don't want to speak about that in open court yet.

I've got another case where my client, from out-of-state, drove over four hours to appear in Court to face charges similar to the one above, and bail was set at $50,000.

Let's get this straight. The guy drove up to Court to face the charges from out of state. How is this defendant a flight risk? How is the other defendant a flight risk?

And that brings us to the improper purpose of bail. In many cases the defendant is unable to make bail and remains in jail while the case is pending. This has one very profound effect, and everyone in the system understands it. A defendant who is in jail is always looking for a deal to get out of jail. By contrast, a defendant who is not in jail is a lot less motivated to take a deal.

Prosecutors want bail set high because that makes it easier for them to make the defendant take a deal. Many judges are complicit in this. The other day I challenged this issue with a judge who had set bail rather high. The judge claimed not to have had enough information. So how did the judge choose any particular bail amount? My cynical side suggests that bail was set high with the expectation the defendant wouldn't make bail and would be stuck in jail. The defendant's family made bail anyway.

Sometimes when the defendant makes bail, it's through a bail bond. The bail bondsman charges the defendant's family a fee for posting the bond, and that fee is substantial. Typically the fee is about 10%. My client with $90,000 in bail ended up spending about $7000 on the bail bond. Even if he wins (and he will) he never gets that $7K back.

This system is particularly unfair to the poor, as they can rarely afford any level of bail. I've even heard that one local judge sets bail on alleged prostitutes (a misdemeanor offense), and by the time the police lose the evidence they've already spent a substantial amount of time in jail. The women charged with such offenses are often poor and rarely have spare money lying around for bail.

One of the unfortunate realities of being a criminal defense lawyer is that the people who call me about their family member in jail usually can't afford me. I can tell this right away because they couldn't afford to bail the person out.

Here I am, one of those heartless Republicans, and I'm complaining about how the poor are treated. Hmm. Where are the Democrats on this? But now I should be on my political blog.


Anonymous said...


i just read your comment. i am studying crime scene investigation at college and found your website in doing research on bail for my constitutional law class. i found good reasons why bail can be unfair. thank you - good post

s m [boston]

kridors said...

And further, what about bail that is not returned, even though the defendant appeared for all proceedings--the bail is applied to restitution at the discretion of the court. Doesn't this violate the purpose of bail, as incentive to appear? If the defendant knows he is guilty, gets out on bail, knows the court will keep the money--the bail does not serve as incentive to appear. This is how Oregon law treats bail, and it seems more like ransom and extortion than true bail.

Don said...

I have a close friend who has been arrested several times for non-violent crimes. At this point, he has never been convicted, even of a misdemeanor. He has NEVER missed a court date-even with all the charges-many of which are bogus and unproven. Recently, he was arrested again, and bail (though he is unemployed) was 25,000$! If anything, his previous charges and appearances in court demonstrate that he is a BETTER "credit risk" than someone who has never had to go to court at all! WHEN DID BAIL BECOME PUNITIVE???