Tuesday, August 23, 2016
American system of bail is unconstitutional says Obama Justice Department
In a federal filing last Thursday, Obama’s Justice Department said that defendants can't be held in jail simply because they cannot afford bail. The Department argued that the practice was a violation of the 14th Amendment.
Author and attorney Publius Huldah disagrees.
How Bail works in our Criminal Justice System and why it’s Important
By Publius Huldah
“Holding defendants in jail because they can't afford to make bail is unconstitutional, the Justice Department said in a court filing late Thursday…” “It's the latest step by the Obama administration in encouraging state courts to move away from imposing fixed cash bail amounts and jailing those who can't pay.”
Bail is an important aspect of our criminal justice system.
In serious crimes, the prosecutor typically wants the accused put into pre-trial confinement.
There is a hearing before a criminal court Judge. The prosecutor shows why the accused should be put into pre-trial confinement; and the defense attorney shows why the accused should not be put into pre-trial confinement.
Then the Judge decides. The Judge must weigh the rights of the accused with the risk of harm to the Public if the accused is not put into pretrial confinement.
It is perfectly fair. The accused gets notice and a hearing where he is allowed to make arguments and put on evidence.
Pre-trial confinement is appropriate for serious offenses where protection of the public is a consideration. It is also appropriate where there is likelihood that the accused will flee the jurisdiction to avoid trial. These issues are argued at the hearing.
If the Judge decides that the accused doesn’t need to be put into pre-trial confinement, but the crime is serious, the prosecutor and defense attorney then argue over the amount of the bail. The purpose of bail is to encourage the accused to show up for trial! So bail is an alternative to pre-trial confinement – an alternative greatly favored by accused persons.
There is nothing wrong with setting high bail. Sometimes the family and friends of the accused have to get mortgages on their homes in order to raise the bail money. This tends, at least in cases of accused persons with moral integrity, to ensure that the accused does not flee the jurisdiction to avoid trial. If he flees, his parents and friends who put up the bail money forfeit their money. If the accused shows up for trial, his parents and friends get most of their money back.
What is appropriate for the amount of the bail can depend in part on the financial resources available to the accused.
There are various factors and it is the duty of the Judge to consider them all and rule justly.
Bail is constitutional. The 8th Amendment to the US Constitution prohibits only “excessive” bail.
And remember: Without bail, it is likely that more accused persons would be put into pre-trial confinement. Bail is a benefit to the accused!
Publius Huldah is an author, speaker, lawyer and strict constructionist of The U.S. Constitution. For more information, go to publiushuldah.com.
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