“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 with the concept of bail being a joke and no one really having any clue what a reasonable amount is anymore, the choices available to the average defendant are stark and bleak: pray for a promise to appear, sit in jail or do whatever it takes to get the hell out.

Some judges and most prosecutors are acutely aware of this dilemma and a fair percentage of them are not above leveraging it into a conviction.

Offer a deal – any deal – that involves no jail time and the incarcerated defendant will jump on it faster than you can say “suspended sentence”. Guilt or innocence be damned. As long as he can get out today, he’s taking it.

For the public defender, this is quite the conundrum. On one hand, the client’s interests are paramount and whatever is the client’s paramount interest is yours. The ability to investigate, to challenge the State’s case, to force a dismissal if the facts align themselves are all tertiary.

“I want to get out” is an argument against which there is no satisfactory response. Ethically, we must convey every offer to the client. And, at times, they’re not bad deals. They’re just not as good as they should be. When the State offers a suspended sentence, it’s patently obvious that there weaknesses in their case, sometimes even fatal ones.

If only we could convince the client to hold out longer, while we finish that investigation, while we round up those witnesses and get those statements, while we beat the State into submission with the glaring holes in their case, while three months have elapsed.

To the poor, incarcerated client, this is just not a convincing strategy. It’s hard to argue with the allure of immediate freedom and escape from the shitholes that are our prisons.

The reality is that our clients are poor. They want out. We stand by, often with nothing more than a police report and counsel them as best we can that we can’t really tell them whether to take the promise of immediate freedom because we haven’t had time to do any research or investigation. They look at us as nothing more than a warm body and decide that they’d rather take the abstract notion of an unjust conviction and the attendant liberty over the potential of no conviction and the fact of more time spent behind bars.

If only they had money to fight the case “from the outside”. If only they weren’t poor and the system didn’t take advantage of that.

That’s a difficult pill to swallow.

*small sample size

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:

guarantee[] bail in a reasonable amount in all cases, even capital cases not falling within the exception . . . The defendant has a fundamental constitutional right to bail pending trial in all but certain capital offense.

[In Ayala, though, the Court ruled that this Constitutional provision doesn't prohibit a judge from revoking bail if the defendant commits a new crime while on release and the judge is not required to impose a new bond amount. Fmr. Justice Berdon argues in a dissent - and convincingly so, in my opinion - that the Constitutional provisions aren't vague and that bond must be set in every case at all times. He didn't get any support. So much for the Constitution.]

Onto the question of what bail is excessive: Certainly if the reasoning behind bail provisions is to ensure the appearance of the defendant in Court,  then one cannot circumvent the Constitutional mandate by setting a bond so high that the defendant cannot reasonably post it. Indeed, the State Supreme Court recognized as much in State v. Menillo²:

The fundamental purpose of bail is to ensure the presence of an accused throughout all proceedings, including final judgment. If an accused were kept locked up in jail from the time of his arrest, there would be no question as to his availability at all times. But the bail provision of § 8 of article first of our constitution makes clear that it was intended that in all cases, even capital cases not falling within the exception, bail in a reasonable amount should be ordered. This is reinforced by a further provision in the same section of our constitution prohibiting a requirement of “excessive bail”, which thus prevents a court from fixing bail in an unreasonably high amount so as to accomplish indirectly what it could not accomplish directly, that is, denying the right to bail.

In State v. McDowell³, the Connecticut Supreme Court wrote that

To impose a financial requirement which is beyond [a defendant's] means is unreasonable and, of course, makes the determination of eligibility [for bail] purposeless.

But does this mean that a judge always has to set an amount that the defendant can make? No, and it doesn’t have to be that way. Again, going back to the reasonableness of bond, from Menillo:

But a reasonable amount is not necessarily an amount within the power of an accused to raise. It is an amount which is reasonable under all the circumstances relevant to the likelihood that the accused will flee the jurisdiction or otherwise avoid being present for trial. See 2 Swift, Digest, p. 395.

But, going back to the question I posed half-jokingly above, what difference does it make if the defendant can’t post even half the bond that is set? An argument can be made that setting such excessive bonds constitutes a form of preventive detention that carries along with it a presumption of guilt. Why else would such a big bond need to be set, unless everyone suspected that the guy was guilty as sin. Justice Berdon puts it more eloquently, from the dissent in Ayala:

The framers of our state constitution placed a high priority on the right to be free pending a determination of guilt. By drafting article first, § 8 of our constitution, which has its roots in our first constitution; see Conn. Const. of 1818, art. I, § 14; 6 the framers obviously recognized that more than liberty is lost when bail is denied. It is well documented that “[p]retrial detention lessens [the presumption of innocence] because an accused is now treated as a convict before trial. An accused individual loses time and liberty, jobs frequently disappear, family and friend relationships are disrupted. The physical appearance of an accused is affected during this period of detention. This impedes upon the ability to prepare an effective defense. As a result, an accused individual is more likely to be convicted and there is a greater likelihood that a severe sentence will be imposed. This violates due process since an accused individual loses liberty during pretrial detention prior to an adjudication of guilt at trial.” Comment, “United States v. Salerno: A Reduction of Individual Rights,” 15 New Eng. J. on Crim. and Civ. Confinement, 147, 161-62 (1989).

The lesson to be learned, I believe, is that bond must be imposed only as necessary and only after great consideration of the facts and circumstances of each case and in no event must be imposed or raised only for the sake of appearances.

When the amount of bond set in a case seems ridiculous, it probably is excessive.

1. 222 Conn. 331 (1992)
2. 159 Conn. 264 (1970)
3. 241 Conn. 413 (1997)