It doesn’t take a genius to understand the difference in the quality of legal representation in a criminal matter between a high-powered, intimidatingly successful defense lawyer and an overworked and underpaid public defender. High powered lawyers almost always generate a lower sentence, a better plea bargain or even dismissal when compared with a comparable case represented by a court-appointed public defender who has limited support and way too many cases. If a matter goes to trial, the results are equally skewed.
For most criminal defendants, their fate is not determined by a judge or after a trial. Over 90% of state criminal cases and 97% of federal criminal cases are resolved by means of a plea bargain. For all intents and purposes, it is the prosecutor who decides a defendant’s fate. Where a grand jury is the source of the charge, the prosecutor alone makes the presentation to that empaneled body. When the charge emanates from another criminal format, again, it is the prosecutor who makes the call, negotiates the deal and structures the plea bargain.
Prosecutors know it is very time consuming and expensive fully to try a criminal case, and most defense lawyers know that if there is a trial and a conviction, absent that high powered defense, the defendant is more than aware that he/she will do far more time than if they accept a plea. Hence, the above statistics. Most criminal cases involve a filing of multiple counts and criminal violations. And when a jury or judge convicts, generally all or a number of these ancillary counts and claims result in a unified guilty verdict.
Even when someone is totally innocent, perpetrators and their defense counsel know the risks, amplified when the defense counsel has limited resources and time. For state court criminals, they know that an earlier release for all but the most heinous crimes is always on the table. Parole. In federal court, the sentence you get – absent a court determination or some form of presidential clemency – is the sentence you will serve… less only up to a 15% reduction for good behavior. There is no parole in the federal system. These factors also impact the attractiveness of a pleas bargain.
It is indeed sad that money, not actual guilt or innocence, seems to be the primary determinant of the likely outcome of a criminal case. You can see that in our system of money bail, this is the “guarantee” of a charged but not-yet-convicted defendant’s appearance for trial. With the exception of cases where the defendant knows they are highly likely to be convicted, preparation for trial takes time and effort. Particularly because of the pandemic’s impact on the availability of courtrooms, justice is frequently delayed in such more complex potential criminal trials. If you are not being held in custody, released on an OR (“own recognizance”) or money bail basis, a defendant can at least work with their lawyer outside the jail where they would otherwise be held. Justice delayed, innocents serving time in jail before a trial, seems to be justice denied.
A bail bond – often secured by real estate or a payment (generally 10% of the posted bond) – generates release in most serious cases, where the defendant can afford to pay the price (or has family or friends willing to take the posted risk). Otherwise, the defendant sits in jail awaiting trial. Unless they plead out, getting punishment for whatever the deal might be. Sitting in jail does seem to fly in the face of “innocent until proven guilty.” It was a lone prosecutor that made the decision to put that defendant in jail (grand juries seldom reject a prosecutor’s wishes), and it is the system that makes bail unachievable for those unable to arrange bail.
There has been increasing pressure against the assessment of money damages and bail against defendants clearly unable to pay the required sums. As a number of red states’ voting laws reflect, even when statutes and judicial rulings have reinstated voting rights for felons who have completed their sentences, those with an inability to pay criminal fines are often denied their purportedly restored voting rights. All these inequities are being challenged in the courts.
The focus today is on our system of bail, where money buys freedom, and poverty often guarantees confinement even before a trial. Recently, California voters did not generate sufficient numbers to overturn the existing money bail system (November’s Proposition 25 initiative). But the glaring inequity of a two-tiered legal system – one for those with money, and another for those without – finally was addressed by that state’s Supreme Court in a unanimous decision. Maura Dolan, writing for the March 26th Los Angeles Times: “On Thursday [9/25], four months after voters rejected such a reform, the California Supreme Court ruled that it is unconstitutional to require defendants to remain behind bars simply because they cannot afford bail.
“In a unanimous decision, the state’s top court told judges to favor pretrial release and consider a person’s ability to pay before setting bail… [This] ruling is likely to lead to many more people being released without bail before they go to trial. Judges may keep criminal defendants locked up only when ‘clear and convincing’ evidence shows there is no other way to protect the public and ensure the defendants’ return for court appearances.” Only “beyond a reasonable doubt” – the standard for criminal conviction – is a higher standard of proof than “clear and convincing.” For defendants able to afford bail, this ruling will not relieve them of that obligation where bail is at issue. Constitutional equal protection and due process were at issue in the ruling.
“‘The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,’ Justice Mariano-Florentino Cuéllar wrote for the court, ruling that it violated both state and federal protections… ‘Other conditions of release — such as electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, and drug and alcohol treatment — can in many cases protect public and victim safety as well as assure the arrestee’s appearance at trial.’
“The ruling represents a partial victory for criminal justice advocates and a setback for California’s bail industry… Albert Ramirez, general counsel of the Golden State Bail Agents Assn., said the no-bail law voters rejected would have killed the industry, but it could survive the requirements set by the California Supreme Court… Though profits will be reduced, ‘we can live with it,’ Ramirez said.” LA Times. As the cost of incarceration rises, including the demand for more prisons, the true beneficiaries of bail reform are not just the relevant defendants; taxpayers come out better as well. It’s time to widen the application of alternatives to bail nationwide.
I’m Peter Dekom, and such bail reform is a win-win for both justice and taxpayers.
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