Sunday, July 7, 2013


A lot of conflicting ideas going on in my head lately.

It starts with clients getting pulled into jail on bench warrants issued for probation violations.

I don't understand how that is a thing.  I'm the attorney.  You have to prove a probation violation and I'm required to be there.

What's the warrant for?

Presumably it is to ensure that they appear for court appearances, after all, the probation officer says they don't care much for court orders.

But in Idaho, I'm not there for the bond to be set either.  In fact, thanks to court calendars, I can't get in front of a judge for a month to six weeks in some cases.

And for those who don't know, the bond in my area is going to be around $10 grand for a person who has no criminal history and no history of failing to appear and has six months over their head.  That means through a bond agent, they can pay $1000 to be free, which they will never see again.  Let me remind you that I am a public defender.  And this is Idaho.

Anyway this practice is upsetting.  But it gets you thinking.  What the hell are arrests about?

Generally, pretrial incarceration is supposed to be allowed only when the court just can't feel sure that the person will come to their hearings.  But rather than set a meaningful bond amount, judges generally just come up with some random number and go with that.  Why not?  The fact is, if you're guilty as sin, and you reallllly don't want to face the consequences, you'll pay as much as you're asked to skip town.  Bail is kind of an antiquated concept.

But wait, there's more!  Judges can set all kinds of conditions for pretrial release!  Drug testing, therapy, wear an ankle bracelet, the goofy things judges think of goes on and on.  Ok, the ankle bracelet actually makes sense.  Of course, in today's world it's generally difficult to be on the run for long, but that's besides the point.

Ok, so getting back to the issue, what's the deal with arrest?  Is it just so a judge can decide what it will take to have the guy show?

No, because there's usually also a dangerousness finding.  Which is a made up word.  So officer arrests a person mid-burglary and the judge says gah I just can't let you out on these facts.  You're a danger to the community.  So much for presumption of innocence right?  As you can imagine, this motivates the super high bails that no one can make.  Judges hate being told later than the guy arrested for meth possession that they let out went out and killed someone.  So you stay in jail.

Practical realities of the current system, however, do not save it from constitutional infirmity.  The idea is that the Fourth allows for reasonable seizures and the defendant is reasonably seized.  But reasonably kept?

Essentially, you have to come to the realization that your liberty is very cheap, but your reputation is what the trial system is protecting.  The guarantee of a trial by your peers can't prevent you from spending years in jail.

But in the modern world you are tainted by the arrest and accusations alone, even the best alibi sometimes can't wash off the stink.

So what is any of this good for?  If mere accusations can lead to a loss of liberty that dwarfs what the actual sentence would likely be, if you will lose your job, your family, and your reputation, and the trial provides merely solace at the end of the tunnel, why pretend we're protected at all?

The fact is: that first bond hearing before the judge is perhaps the most critical hearing a person has.  The fact that in Idaho a person faces it in chains, on a video screen, and alone is unacceptable, and unconstitutional.  A lawyer can't necessarily fix the problem, but just as Gideon had to have a lawyer to assist at his trial, thousands need a lawyer to keep from having their lives destroyed on the basis of accusations alone.

Idaho needs to change.

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