Category Archives: bail

Guilty of being poor

There is a myth that persists among criminal defendants that is well known to all of us: if you are poor, there’s a greater likelihood you’ll be found guilty of something. This myth – and a myth it is, because the rate of conviction is so damn high that you can’t honestly carve out any special class among the universe of defendants – is a steady source of amusement for the public servant.

“Man, if I had a real lawyer, I’d have gotten a dismissal already.”

Yeah, sure.

“I know how this works. If I had a private lawyer, he could fight for me more, but I can’t afford one so I’m stuck with you and this crappy deal.”

Whatever you say.

The irony is that the myth “you’re guilty if you’re poor” is just a few minor edits away from being close to the truth. The reality is that in the volume-high, fund-low world of indigent defense, most people are certainly guilty of one thing: being poor.

I’m not referring to the link between poverty and crime, for which there is much to be said – despite the tortured claim put forth last year that the declining economy coincided with a declining prison population and hence there was no link, an argument that any statistician worth the paper his degree was printed on would snarkily dismiss out of hand with the acronym SSS* – and indeed much has been said, but rather to the reality that unfolds every single day in the busiest courthouses across the country.

In response to my post yesterday on the “difficulty facing public defenders” [and if you want to read a more thoughtful post on the subject, check out Gamso’s], a commenter points out that what I identified as a difficult wasn’t really exclusive to public defenders. The presumption of guilt applies to all defendants. But what is special to the indigent bar is that we often have to sit by and watch clients plead guilty, without having a clue whether they are actually guilty or not and without having the opportunity to determine that.

For almost every defendant except the guy doing life on the installment plan, the single biggest motivating factor is liberty. “When can I get out?” is the paramount question.

What does “excessive” mean anymore?

Article 1, Section 8 of the Connecticut Constitution states:

In all criminal prosecutions, the accused shall have a right … to be released on bail upon sufficient security… nor shall excessive bail be required…

The Eight Amendment to the United States Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Despite this, the bonds imposed by local judges have grown at a tremendous rate. The numbers being thrown about these days are just… well…excessive. Take, for example, the recent tragic shooting at Wesleyan. When arrested, the police set bond on the defendant at $10 million, already an astronomical amount.

Apparently that wasn’t enough. Perhaps in a show of force for the public and/or media, the judge raised the bond to $15 million. Now, I know nothing about the financial circumstances of the defendant here, but I find it hard to believe that there are people who can post bond in the amount of $10m, but not $15m. That’s entirely silly and nothing more than appearances. (One might argue that it doesn’t make a difference because he couldn’t post $10 million anyway, so who cares if it’s $15 million or $30 million. I care, that’s who.)

So at what point does a bond become “excessive” and thus in violation of either the State or Federal constitutions? The point of bond (or bail) isn’t to ensure that the defendant cannot post it, but rather to ensure that he has enough invested in the posting of that bond that it provides an incentive for him to return to court and thus avoid forfeiting that amount.

Now, this isn’t a jurisprudential hot topic, so cases on point are relatively few and far between. But there is some guidance. Starting with the Constitutional import of bail, in State v. Ayala¹, the CT Supreme Court reiterated that the Constitutional provisions: