Law Asked by somebodyisakoala on January 8, 2021
A lot of people are talking about alternatives to cash bail recently, which made me wonder, why does pre-trial detention exist in the first place?
My layman’s understanding of pre-trial detention is that it’s a kind of "buffer" or a necessary evil. The root problem appears to me that we don’t have enough judges, public defenders, etc. to get everyone to trial immediately, so we have to hang onto them until a slot opens up. Bail exists because of flight risk, so if in some world there were no need for pre-trial detention, we wouldn’t need bail or any alternative.
Is my understanding essentially correct? In other words, does pre-trial detention exist because of a resources constraint? Or is there some more fundamental reason why we have this intermediary step between arrest and trial?
My question is coming from a US-based context, hence my lead-in about "cash bail". However, I’m curious about pre-trial detention in general, regardless of whether bail is used or what form it takes.
Even if unlimited resources were available, in order to have a fair trial, the prosecution and defense both need time to prepare their cases, research the law, conduct investigations, gather evidence, interview witnesses, seek out experts, order forensic tests, etc, etc. And there will be pretrial motions that have to be prepared, argued, and judged. You have to figure out what's going to happen to the defendant during that time, be it detention, release, bail, or some other alternative.
Shortages of personnel obviously exacerbate the delays, but even without that issue, it's not like the courts could try every defendant on the spot. That would be something like the Wild West, or the Dark Ages; certainly not what the modern world considers justice.
Correct answer by Nate Eldredge on January 8, 2021
Pre-trial detention falls into two categories: the fear that the accused won’t show up for the trial, the fear that the accused will commit more crimes. The first is why bail exists, the second is why trials are supposed to be speedy.
Note that both operate under the premise of “if the accused is guilty”, which is also why trials are supposed to be speedy — it is unfair to keep the them in a halfway state between guilt and innocence.
Bail is messed up, and has become a punishment in itself — for starters most crimes are some what flexible in charging, so that depending how it is viewed it can be either minor or major, and bail is almost certainly going to be based upon the most adverse view. Secondly, except where it is a flat schedule, part of the calculation will be resources which will negatively affect the poor. Finally, bail bonds companies have lead to an increase in bond amounts, resulting in the accused either staying in jail or loosing the 10% earnest money, as most people can’t afford to pay bail in full.
Speedy trials and extra resources could solve part of the bail problem, and hence address the first fear by simply making it meaningless.
Answered by jmoreno on January 8, 2021
Suspects are considered innocent until found guilty in a court of law. So detaining them even for one day needs a justification. Holding the trial instantly is not feasible from the prosecution or defense viewpoint. Justifications for the detention might be:
So if there is no extraordinary likelihood of further crimes, and no evidence to be destroyed, then the defendant should be released until trial unless the expected punishment is so harsh that flight from justice becomes likely.
Answered by o.m. on January 8, 2021
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