Colin McCallin June 9, 2020

Long Live the You

OK, here’s the scenario: you have overthrown the government of a nation and made yourself its dictator. Now it’s time to dictate. Will you be an anarchy-adjacent figure of dread, laughing insanely from the balcony of the palace as citizens below scurry about obeying your cruel whims? No, you won’t. It will just seem hackneyed, after Game of Thrones. Will you have a code of laws, then? Yes, that sounds nice. What will you do with people who violate those laws? Punish them? Classic. While accused people are waiting to find out whether they are innocent and free to go, or guilty and condemned to be eaten by the palace jaguars (you may not be a mad tyrant, but you’ve got to give things some pizzazz), what will you do with them?  You could just throw them all in jail, but that seems unfair to the ones who later turn out to be innocent. Too much pizzazz. You could just let everyone go, on the assumption that they will come back of their own accord for the trial date set by the honorable Jaguar Council, but that seems too trusting. How about you let them leave, but only if they give up something valuable that you will keep if they skip town? Genius! You’ve just devised a bond system, Your Supreme Excellency, and this is a time-tested approach the world over.  However, before you call the scribes in to make it official, there are problems to consider:  

A Few Problems

In the U.S., the prevailing bond system has come under criticism more and more lately, as data emerge suggesting that it hinders justice more than it promotes justice. The majority of people imprisoned before trial have been deemed ineligible for bond altogether; these are not our focus here. Around 40% of people awaiting trial in custody, however, are there because they cannot afford the bond that has been set for them. This is a disadvantage in the criminal law arena for many reasons.

For one thing, while people are in jail, they cannot take any steps to secure a better bargaining position. If we at H&M have a client out on bond for a DUI charge, for example, we will usually encourage him or her to get into some kind of alcohol treatment even though he or she, not having been found guilty, has no obligation to do so. If we’re talking about an assault case or some kind of domestic disturbance charge, maybe an anger management class or other counseling is in order. Why? Because these proactive efforts may induce prosecutors to offer better plea deals than they would otherwise, along with the bonus of improving our client’s chances of remaining law-abiding. Whether the client is guilty or not, this is a cost-effective way to make a worst-case outcome less likely while preserving the chance to go to trial and avoid conviction completely. But all that is impossible if the client is in jail.

Second, being in pre-trial detention puts a strain on people, particularly poor people, that will often generate guilty pleas by itself. If staying in jail until trial—unemployed, isolated, unable to perform the duties of a parent or caretaker, etc.—looks like it will do more damage to your life than just pleading guilty to the offense you’re charged with, even if you’re innocent and the state’s case is weak, a rational person will plead guilty just to prevent everything from falling apart. This is manifestly unfair. Aware of this influence remaining in custody has on defendants’ decisions, prosecutors sometimes offer worse plea deals to those who cannot post bond. 

As if that weren’t enough, staying in jail while you wait to be tried might expose you to unconscious bias in the courtroom. Judges, try as they might to be objective, will probably react differently to someone who comes into court from jail versus someone who comes from home. To expect otherwise is probably to expect too much. People in poverty must struggle whether they face criminal charges or not, and there is a cruel irony in exposing them, in the name of justice, to this unconscious bias at higher rates than wealthier people.

Our Recommendation

None of this seems like stuff you want cluttering up the legal system of your brand-new dominion, Your Radiant Majesty. As self-appointed legal counsel to your regime, we hereby advise against a bond system patterned on that of the U.S., stupendously smart of you though it was to think of it. The jaguars should stay though. We’re loving the jaguars.