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Chris March 28, 2015

The spring TV season is giving us three quality shows about criminal justice: Better Call Saul, American Crime and Secrets & Lies. I recently wrote about American Crime and its depiction of juvenile police interrogations. This past week’s episode focused on the issue of bail for one of the characters accused of murder. American Crime departs from the courtroom show in that most of its legal action is not shown in court but through the lenses of its characters. The plot centers around an alleged rape and murder and the effects on the suspects, victims’ families and other members of the community. In the most recent episode, one of the accused ask’s for a bail review hearing. The court had previously denied him bail. The alleged victims’ families, led by Felicity Huffman’s character, are opposed but also confused about bail. They immediately think the accused will be released and do not want him to be. They have already decided the case before the trial.

Pretrial detention and bail are among the most critical and complex parts of criminal justice. An accused person is innocent until proven guilty. No person should be punished before the case is decided and a sentence imposed. Yet there is a necessity to ensure an accused person appear and answer his or her charges as well as protect society from a potential criminal. Despite the presumption of innocence there must be a showing of probable cause that a crime occurred and that the accused committed it for the case to proceed to trial. In order to give defendants more skin in the game than the possibility of conviction and imprisonment, courts set bonds in monetary amounts and other conditions of release (e.g. no weapons, protective orders). Those who can post bond or afford the services of a bail bond agent can and often leave jail. Those who cannot stay there, no matter the strength of their cases.

The Eigth Amendment prohibits excessive bails but stops short of guaranteeing a right to bail. In many cases in many jurisdictions, the denial of bail is not considered excessive because the charges are serious. In the Law & Order universe Jack McCoy’s office routinely asks for “remand.” In American Crime, the alleged crime is a murder with special circumstances. Different states have different laws regarding bail. Connecticut has a near-absolute right to bail. The only exception was for capital felonies and that required a probability of proof and potential for danger. With the death penalty abolished for alleged acts that occurred after April 1, 2012, I argue that bail must be available in every case. That doesn’t mean it must be affordable–the bond amount is based on many factors which do include the history of the accused, the likelihood of flight, the seriousness of the alleged crime and many more considerations. There are other types of holds (such as a federal or interstate detainer) that usurp the possibility of release.

A few days ago I was interviewed by a local publication about bail and indigent defendants and will post the link when the article is published. The subject was the affordability of bond amounts. My opinion is that it is to be an amount that will ensure the defendant’s presence in court and compliance with other conditions. A defendant’s ability to pay should be considered to an extent. One person’s thousand-dollar bond is another person’s hundred-dollar bond. I also think that more non-monetary methods should be used to ensure a defendant’s presence, electronic monitoring (already used by probation and parole) being the best. It balances the liberty interests of a defendant with the judicial system’s interests. Jail with work-release is another possibility. Bond is not supposed to be punitive but for those who can’t afford much of anything, it often is.