criminal law: January 2008 Archives

January 30, 2008

Abolish Our Discriminatory Bail System

In an article by Adam Liptak, published on January 29, 2008 in The New York Times, I learned that only the United States and the Philippines have legal systems that use for-profit bail companies as a means of assuring that criminal defendants will appear in court.

According to the article, all other developed countries, as well as Illinois, Kentucky, Oregon and Wisconsin, provide a way for people presumed innocent to achieve their liberty pending trial without feeding a commercial bonding intermediary. Once again, this country that prides itself on its justice system lags far behind the rest of the civilized world -- as it does, for example, with capital punishment and life imprisonment for minors.

How the bail system works. For those not in the know, here is how the bail system works in most states.: When you are arrested, you can usually avoid spending the night in jail by paying a bail bond company a 10% non-refundable "premium" in exchange for the company posting a bond with the court for the full amount of the bail. The amount of the bail is typically based on a local bail schedule.

For instance, the bail in my county for common misdemeanors is $5000, and between $10,000 and $25,000 for felonies. Most people who are arrested for the first time are shocked at their lack of freedom and will do anything to get out right now. Friends and family are pressured to pay the premium, yesterday.

If you are released on bail, you're typically given an arraignment date (first appearance) a month or two in the future. If you don't "make bail," you'll stay in jail until you're taken before a judge a day or two later (or even three or four days if you're arrested on a Friday). At this first appearance, the judge can raise or lower the bail, or even let you go on your promise to return. All too often, however, the bail is either raised or remains the same, and the defendant remains in jail until trial -- which must be held within a couple of months, unless the defendant "waives time." Often, encouraged by their public defender, who invariably has a heavy caseload, defendants end up waiving time and remain in jail for many months before they get their day in court.

The problem with the system. The shame of this system is highlighted by the fact that people accused of misdemeanors can frequently escape further imprisonment by entering into a plea agreement for probation and a fine. And, it's not uncommon for people who insist on their innocence to languish in jail awaiting trial for crimes that predictably will not involve jail time even if there is a conviction. Keeping someone in jail because they can't make bail on a charge that is highly unlikely to result in imprisonment is nothing less than depriving people of their freedom solely because they are poor.

Allowing private companies to determine whether a defendant goes free pending trial is often tantamount to determining the trial's outcome. Defendants who are free pending trial have a tremendous advantage over defendants who must prepare their defense while behind bars. Justice that depends upon one's ability to pay for a bail bond is injustice at its core.

Even the legal establishment disapproves of the system. According to Adam Liptak, "[m]ost of the legal establishment, including the American Bar Association and the National District Attorneys Association, hates the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system."

Obviously, I agree. The Eighth Amendment to the U.S. Constitution should be further amended to provide that bail be administered solely by the justice system, rather than by the private sector, as it is now.

January 7, 2008

When Defense Lawyers Want Their Clients to Get the Death Penalty

In one case I know of, the defendant wanted death rather than life. After handing down a first-degree murder conviction, the jury must decide between death and life in prison. In most cases, the defendant wants the life sentence and the lawyer works hard to achieve this result. I know of one case, however, where the defense strategy throughout the trial was to make sure the jury brought home a death sentence. You know a justice system has to be screwed up when a murderer wants the death penalty rather than life in prison. Of course, some criminals prefer to die than be locked up for the rest of their life, but this isn't common.

A death sentence takes a long time to carry out. The starting point for this discussion is that it usually takes a long time to move a convicted murderer from the courtroom to the execution chamber. Stays of over 20 years on death row are not uncommon, which means that in many states, a death sentence means the murderer still has a lot of living left to do. Death row gets the condemned prisoner a cell all by himself and removes him from the general population. The prison wants to make sure that nothing bad happens to the prisoner before he's executed. The majesty of the law is hard at work here. (Incidentally, please forgive the male gender reference. As you'll see, this discussion applies almost exclusively to male prisoners.)

A life sentence is no picnic. Unlike the death penalty, a life sentence means the convict will necessarily come in contact with other prisoners, subjecting him to the possibility of sexual assaults, AIDS, and even attempts on his life. And the convict will likely be double- or triple-celled unless he is put in "lockdown" for long stretches -- which happens more often that you would care to think. Nonetheless, almost always, a convicted murderer prefers the opportunity to live a long life, even in prison, even in solitary confinement, rather than face execution somewhere down the line.

Not so for the case I'm talking about. In this case, the defendant raped, tortured, and murdered a young girl. The evidence was overwhelming -- including a solid confession -- and an insanity plea was not viable for a number of reasons. In other words, it was clear that the jury would convict this defendant of first-degree murder. The defendant and his lawyers had to decide whether they should at least introduce evidence that would soften the jury's attitude toward him, such as the fact that the defendant was horribly abused as a child, or whether they should play along with the prosecutor's portrayal of the defendant as a monster.

The decision was a no-brainer. As it turned out, the decision by the defense team was an easy one. As most of you know, the life span for prisoners who have raped, tortured, and murdered children is short. We're talking vigilante justice to the max. When the jury came back with a death sentence, the defendant and his lawyers felt they had won the day, or, rather, a good 20 to 25 years of a not-half-bad life on death row. How do you like them apples? Of some interest, the U.S. Supreme Court will soon decide whether raping a child justifies the death penalty even though no death resulted. If the Court approves of the death penalty in such an instance, it may cut down on the number of vigilante murders, since these folks will now be put on death row instead of the general prison population.

And now for the editorializing. We really ought to follow the lead of the rest of the civilized world and do away with the death penalty in all states. In my opinion, it's flat out immoral and serves no useful purpose, an opinion that is corroborated by the many studies on the subject. Also, it is a waste of public resources. Capital murder cases are hideously expensive to try, and a 20-year stretch on death row eats up millions of dollars per prisoner. And then, of course, there is the issue of those who are wrongfully convicted. Our experience with DNA, and the fact that many innocent prisoners have been executed, should teach us that we always should allow for an opportunity to prove a convicted prisoner's innocence -- through new technology or other new evidence. The death penalty, of course, puts an end to such possibilities.

We need prison reform. Whether or not the death penalty is abolished, we desperately need prison reform so that a life sentence means life with at least a minimum amount of dignity, freedom from sexual assaults, and protection from murder as a result of an uncontrolled vigilante system of justice operating within the prison. See Rebecca Tuhus Dubrow's article in The Nation about prison reform for more on what we can do to make our prisons more humane.