Bail

Class: Criminal Procedure

Professor: Jacobs

Topic: Pretrial Incarceration

Some scholars have done research which shows a positive correlation between pretrial incarceration and an individual’s likelihood of being found guilty. A correlation folks! This proves that pretrial detention hampers your ability to defend the innocence which you no doubt have because you’re poor and can’t pay the evil government’s bail. This is unjust; or so goes the arguments at NYU Law. Based on these facts, bail should be given out like candy on Halloween.

But before we start giving accused rapists and murderers signature bonds let’s take another look at this correlation.

First, how is bail determined and who gets it? Generally, states have enacted statutes that govern the bail process which highlight factors judges use to determine whether an accused will have cheap or expensive bail. If the defendant can’t make bail he stays in custody until he can be tried. Of course he could just pay ten percent of the bail through a bondsman. But, as my classmates pointed out, this is equally unjust because bounty hunters will eventually get involved if the person skips town - and we all hate bounty hunters..

What are the usual factors involved? In most cases judges want to know whether the defendant (1) has any “community ties” such as having a family, attending a church etc; (2) is employed (has something to lose if he leaves town); (3) has a criminal record (4) etc.

The facts of the case are not usually discussed, so theoretically the judge makes his determination based on the charge and the bail factors just outlined.

If anyone can remember sociology from undergraduate school, one would realize that the factors for determining bond could be used just as well for determining the likelihood that an individual will commit crimes.

If two identical people came into the court who were both charged with identical crimes and one comes in with (1) community ties* (2) a job (3) no criminal record, and the other with the opposite, who do you think is more likely to have committed the crime they were arrested for? My bet is on the latter.

Causation is a hard thing to prove. Luckily we can just use correlations to fight for our causes.

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*While working for a public defender I witnessed a whole church congregation come to a defendant’s bail hearing so that he might be able to convince the judge to give him a signature bond. What percentage of people in this situation are likely to be guilty versus those who have no one to call? Use your common sense.