4. ‘If it suffices to accuse, what will become of the innocent?’

A recent bail application in Bronx Criminal Court shows how excessive bail is eroding our presumption of innocence. It also speaks to what Justice Marshall artfully wrote about in his dissenting opinion in United States v. Salerno, 481 U.S. 739 (1987).

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First, Justice Marshall:

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. Coffin v. United States, 156 U.S. 432 (1895). Our society’s belief, reinforced over the centuries, that all are innocent until the state has proved them to be guilty, like the companion principle that guilt must be proved beyond a reasonable doubt, is “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319 (1937) . . .

The [Bail Reform Act of 1984] declares that persons who have been indicted may be detained if a judicial officer finds clear and convincing evidence that they pose a danger to individuals or to the community. The statute does not authorize the Government to imprison anyone it has evidence is dangerous; indictment is necessary. But let us suppose that a defendant is indicted and the Government shows by clear and convincing evidence that he is dangerous and should be detained pending a trial, at which trial the defendant is acquitted. May the Government continue to hold the defendant in detention based upon its showing that he is dangerous? The answer cannot be yes, for that would allow the Government to imprison someone for uncommitted crimes based upon “proof” not beyond a reasonable doubt. The result must therefore be that, once the indictment has failed, detention cannot continue. But our fundamental principles of justice declare that the defendant is as innocent on the day before his trial as he is on the morning after his acquittal. Under this statute, an untried indictment somehow acts to permit a detention, based on other charges, which after an acquittal would be unconstitutional. . . .

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OK … so here’s what happened the other day at a Bronx Criminal Court arraignment…

  • A judge rejected a routine plea deal for a low-level, disorderly conduct violation (not a misdemeanor/felony). The deal had been offered by the prosecution and accepted by the accused individual.
  • Because the judge rejected the plea deal, the arraignment picked back up, and the prosecutor requested bail in the amount of $2,000.
  • Defense counsel then persuasively argued that the individual should be released on his own recognizance. In addition to arguing why the accused individual was not a flight risk, etc., defense counsel reiterated that the prosecution had already agreed to release the individual when it offered the plea deal for disorderly conduct. How could it now be the case that it was appropriate to detain the accused individual?
  • Initially, the court thought to order bail in the amount of $2,000, but came to realize the whole situation made no sense. It would have been OK to release the accused individual if he pled guilty to disorderly conduct, but not OK if he was charged with the crime and couldn’t make bail?
  • So in the end, the arraignment was continued and the individual was taken back behind bars…

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Here’s Justice Marshall, once again:

The conclusion is inescapable that the indictment has been turned into evidence, if not that the defendant is guilty of the crime charged, then that, left to his own devices, he will soon be guilty of something else. “‘If it suffices to accuse, what will become of the innocent?’”

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