Matthew T. Mangino
GateHouse News Service
April 26, 2013
Fifty years ago the U.S. Supreme Court made it clear that having a lawyer in a criminal case was a necessity, not a luxury. When that “necessity” is imposed continues to be the subject of debate.
Every day in this country thousands of men and women accused of a crime go before the court without the assistance of counsel. The initial bail hearing, probably the most crucial liberty proceeding in a criminal case, is often conducted without legal counsel.
Last year, Jake Schaller a law student at the University of Maryland wrote in the Baltimore Sun, “I didn't need to go to law school to learn that a person charged with a crime is innocent until proven guilty and entitled to the assistance of a lawyer. …Heck, it's America 101.”
The major obstacle to full and complete representation is money. State and local lawmakers don’t want to expand funding for indigent defense.
However, the failure to afford legal counsel for the initial bail hearing is not only fundamentally unfair; it also imposes an enormous, and needless, burden on taxpayers.
A significant amount of local revenue goes toward corrections — the local county jail — and half of those costs can be attributed to inmates in pretrial detention. Those are individuals who have been arrested, accused of a crime — not convicted — who remain in jail awaiting trial.
Pretrial detention increased at the same time “get tough” policies drove prison populations through the roof. In the 10 years between 1996 and 2006, the number of people held in pretrial detention in local jails increased by more than 20 percent.
In most states, everyone charged with a crime other than first-degree murder is entitled to bail. The criteria considered by courts include the nature of the offense and the likelihood of conviction; employment status; family ties; length of residence in the community; prior bail history; criminal record and among other criteria, the defendant’s risk of flight.
The primary purpose of bail is to insure that the defendant appears for all future court proceedings. Bail is not punitive, its purpose is administrative.
Failure to grant pretrial release may come in the form of setting bail that is beyond the defendant’s ability to post. Bail need not be a million dollars to be excessive. For some defendants a $2,500 bond, that may require a $250 payment to a surety company, is beyond reach. What does that mean for taxpayers? If a defendant with a $2,500 bond can pay $250 he is out and on the street. If not, taxpayers are on the hook.
According to the Bureau of Justice Statistics, at midyear 2011 about 61 percent of inmates in local jails were not convicted, they were awaiting court action on a pending charge.
Some defendants being held pretrial belong in jail. Some are not eligible for bail, some are a legitimate flight risk and others a danger to society. However, some just can’t afford a monetary bond. Timothy Murray, executive director of the Pretrial Justice Institute, says as many as 65 percent of those detained pretrial are there because they cannot afford the bond.
These inmates can sit in jail for a year, or longer, before going to trial or pleading guilty.
While these people are in jail, taxpayers provide them with food, clothing, healthcare, and security. According to the American Bar Association the United States spends about $9 billion a year on pretrial detention.
Judge Truman Morrison, a Senior Judge with the Superior Court of the District of Columbia, told The Crime Report the system is unscientific and that most judges "guess" in setting bail figures. "It's utterly random," he said.
About two-thirds of the nation's counties lack organized pretrial programs. The lack of services makes it virtually impossible for counties to determine who is low risk and eligible for release pending trial. Comprehensive pretrial services not only save money, but also promote justice and fairness.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.