Bail Bonds and the Presumption of Innocence

courthouseWhen a person is presumed innocent until proven guilty, it stands to reason that no punishment should be meted out until there is a final verdict of guilt. And yet it can reasonably be said that pretrial detention, or being put in jail before the case against him is even brought to court, constitutes punishment that argues strongly against any defendant’s right to be presumed innocent until proven guilty.

And yet a defendant’s right not to be punished or put in jail before being found guilty must also be balanced by the court’s interest in making sure that the defendant actually shows up in court for his trial. Sometimes a defendant has that kind of social standing that is an assurance in itself to the court that the defendant will not abscond. Should the defendant post a cash or property bond, on the other hand, the court assumes that defendant’s interest in recovering the money or property he put up as surety will be enough of a guarantee to his attending the court hearings. This “bond” in no way constitutes punishment because the money or property is not being confiscated or taken away by the court. If the defendant does as he promises, to attend the scheduled court hearings, there is a reasonable assurance that any property he posted will not be taken from him. In addition, any amounts of money filed as a cash bond will eventually be returned, less court fees, regardless of whether the defendant is eventually found guilty or not.

In the event, what happens most of the time, given its prevalence in the court system, is that the bail amount set down by the judge is too high for the defendant to afford. In such an instance, his only recourse is to go to a bail bonds san diego downtown company.

There have been a number of criticisms of the bail bond industry to the effect that it is an industry that profits off of people’s misfortune, or that it is a commercialization of the justice system. But to a very real extent, for many people caught up in the criminal justice system, bail bonds is the only way by which they can gain some measure of equality before the court.

gavelThose who can afford to do so will post a cash or property bond and be released by the courts before trial. Those who have the standing for it in the community will possibly be released on their own recognizance. But what about those who do not have that kind of socioeconomic standing in the community, and who cannot afford to pay for their bail? Many of these people turn to bail bondsmen for assistance in securing their release from prison. Now imagine what the state of the system would be like if there were no bail bondsman to help them out? Either they will have to pay for their bail through their teeth, and get buried in enormous amounts of debt, all the while going through the daunting criminal proceeding, or they will simply remain in jail. Chances are, there aren’t that many who will be willing to loan money to someone named as a defendant in a criminal trial, so the most likely circumstance in these cases is that the said person will simply have to remain in jail.

The repercussions are immense. Aside from prison overcrowding, there is also the effect on the mental, physical and psychological state of the defendant. Being in jail is hard on anybody, and one who is incarcerated, whose freedom is restricted, cannot work and earn income, has little contact with his support network of family and friends, and cannot otherwise do things he should have been free to do if he were not in jail. In a very real way, before trial, before any verdict of guilty is ever brought against him, a defendant who cannot afford his own bail, and has no other means by which to post bail, is already being punished by the system.

The ironic thing is that studies have shown that a defendant who remains incarcerated or in prison prior to and pending trial is far more likely to be found guilty, and to be meted out a longer sentence. Such a person has little opportunity to prepare for his defense as he should if he were free. The opportunities for meeting with a lawyer are limited, and so are the various other opportunities he has to secure evidence on his behalf, such as in locating witnesses or finding other evidence. He has no access to any social support such as family or friends. The psychological and emotional impact of being in jail must also have some significant impact on the defendant’s state of mind and his capacity to put up a reasonable defense on his behalf. Many defendants opt to plead guilty to a lesser offense just to regain their freedom as soon as possible, regardless of their actual guilt.

In short, without the available help of bail bondsmen, many people caught up in the criminal justice system are being punished well without due process, and will continue to be punished despite it.