A Strong Defense Can Make All The Difference


A Strong Defense Can Make All The Difference

Bail: Misuse Leads to Coerced Guilty Pleas

Every person arrested faces the potential that they will have to pay some sort of amount of money in order to gain their freedom during the course of their ciminal case.  If a person cannot pay their bail, or cannot come up with the money to pay a bail bondsman to pay their bail for them, they will remain in custody (jail) until their case is resolved.

A few weeks ago, the New York Times published an article call the The Bail Trap.  (I highly recommend reading it!) The article focuses on the consequences that can befall a person who is unable to come up with the money to get out of jail while they are facing criminal charges. A person may lose their job, their children, their housing, everything. And in the case of some of the people in the article, be innocent of the crime they were charged

Reading this article made me think about the various amounts of bail I have heard ordered in courtrooms and the clients that I have represented who could not pay their bail and were faced with an offer to plea guilty and get immediate release (credit time served).

First, in the eyes of the law, each and every defendant is presumed innocent. But, innocent or not, bail creates a punishment that many are helpless to avoid. The people that are most effected by this are often alleged offenders of lower level misdemeanors (theft, drug paraphernalia, disorderly conduct, etc.) and those that have lower income levels. The bail set may not seem like a lot, but, for many it is. Here, in Minnesota, a misdemeanor offense is punishable up to 90 days in jail and a gross misdemeanor is punishable put to 365 days. It is unusual for defendants to get the entire sentence unless they have a lengthly criminal history or other circumstances.

The result: A person appears in court and is arraigned. Bail is set and a pre-trial or omnibus hearing is scheduled. The rules require that this hearing is set within 28 days.  A speedy trial demand can be entered and trial must be set within 60 days of entering a plea of not guilty (which can be done at the first or second court appearance depending on the circumstance).  In short, a defendant awaiting trial could execute the length of his or her potential sentence before he or she is even afforded the right to have a trial. Unlike when a person is serving some jail time as a part of their sentence after they have pled guilty or were found guilty of a crime, person’s who are in pre-trial custody are not allowed work or school release to maintain their employment or education.  So, for many, the choice can become: fight the case and stay in jail or take the deal and get out.  A person will do a lot to get out of jail, even plead guilty to a crime they believe they didn’t commit or where they have a defense. For these people, bail’s coercive properties can be very hard to resist.