Article by attorney Adam Stone. Cannot Break These Bonds Recently, I read an interesting Facebook post from the Bucyrus Telegraph-Forum questioning whether an alleged criminal’s bond was set too high at his initial appearance. The question raised several fascinating responses from individuals who related the amount of the bond to their beliefs regarding the seriousness of the offense and an assumption that the suspect committed the crime with which he had been charged. This fundamental misunderstanding as to the framework and constitutionality of the bail or bond system in this country allows for a community to be taken advantage of by government, promotes an overcrowding of jails, and violates the essential individual liberties that are the cornerstone of our democracy. It further ignores the most basic precepts of our judicial system and becomes a system by which individuals accused (not found guilty) of crime are punished. The right to bail and the right to be free from unreasonable or excessive bail is a function of four legal concepts - Ohio Const. Art. I, § 9; the Eighth Amendment of the United States Constitution; and Rule 46(C) of the Ohio Rules of Criminal Procedure – all of which begin with the assumption that we all learned in grade school, a defendant is presumed innocent until the State proves he or she is guilty beyond a reasonable doubt. That assumption belies the premise that, in the United States, we do not jail or imprison innocent people. An individual charged with a criminal offense has a right to reasonable bail during the pendency of a criminal proceeding. This right is guaranteed by Section 9, Article I of the Ohio Constitution, which provides that “[a]ll persons shall be bailable by sufficient sureties, . . . except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious harm to any person or to the community.” (emphasis added.) The freedom from “excessive” bail is extended to Defendant’s by the Eighth Amendment of the United States Constitution, which provides that “[e]xcessive bail shall not be required . . .” Finally, the Ohio Rules of Criminal Procedure provide a court with the framework by which the reasonability of bail is determined: “[i]n determining the types, amounts, and conditions of bail, the court shall consider all relevant information, including but not limited to: The nature and circumstances of the crime charged, and specifically whether the defendant used or had access to a weapon; The weight of the evidence against the defendant; The confirmation of the defendants identity; The defendants family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, record of appearance at court proceedings or of flight to avoid prosecution; Whether the defendant is on probation, a community control sanction, parole, post-release control, bail, or under a court protection order.” (Crim. R. 46.) The foregoing factors were provided as guidance for a Court in its determination and assurance that a citizen accused of wrongdoing is provided a reasonable bond. In sharp contrast to what many believe, the purpose of bail is to secure the attendance of the accused at future hearings and at trial –not a determination of a defendant’s guilt or innocence; that is for a jury to decide. In fact, only under the harshest of circumstances – whereby the lives of individuals in the community or the life of the accused is at serious risk –can a Court legally deny an individual the right of bail and the freedom from excessive bail. For instance, Jeffrey Dahmer – the famous serial killer – was held without bail. Historically, bond was provided to allow the accused – innocent in the eyes of the law regardless of the determinations of public opinion or even law enforcement – to continue living his or her life with the financial incentive to appear in court as ordered and to otherwise stay out of trouble. For instance, if an individual is forced to procure $25,000.00 in order to bond out of jail for the pendency of a criminal action, he or she forfeits that money if he or she violates the conditions of that bond or fails to appear or gets into trouble. Bond is not and was not meant to be a means of punishment; it is not a deterrent to crime. The right to a reasonable bond or bail is, quite literally, within the same Bill of Rights as the freedom of speech, freedom of religion, the right to privacy, freedom of the press, freedom from government intrusion into our personal effects and property, the freedom from cruel and unusual punishment, and the right to bear arms – to name only a few. If we accept the belief that these are our inalienable rights as citizens of this country, we must firmly stand up to an intrusion upon any one of them lest we degrade the importance of the remainder. We cannot sacrifice the integrity of our justice system for something as fleeting as security. We are constantly hounded by religious zealots and political pundits, masquerading as leaders – oftentimes these two seem to comingle – who wish to tell us how the founding fathers would feel about a certain issue. Most of these individuals cannot back up their assertions with any historical data or facts; in fact, most of their assertions are directly contradicted by history. Here, however, Benjamin Franklin famously wrote in his Memoirs, “[t]hey who can give up essential liberty to obtain a temporary safety deserve neither liberty nor safety.” © 2014 by Martin & Stone LLC. All rights reserved.
Posted on: Tue, 04 Nov 2014 12:27:29 +0000
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