Bail And Preventive Detention

“A man of courage never needs weapons, but he may need bail.” (Lewis Mumford). Bail is a guarantee that has the judge that defendant will appear the day of the trial. Bail amounts vary depending on the state or county, each state or county have a bail schedule. When bail amount is excessive defendants can’t pay it and have to wait in jail for trial. When the judge denies bail defendants stay in preventive detention waiting for trial. The proposed legislation would increase bail amounts for defendants waiting for trial and subsequently the number of people who are detained for long periods of time pretrial. If the legislation proposes to increase bail amount it would violate one of the Amendment of The Constitution.

In order for Legislation to increase bail amounts, a long lasting process would have to take place. Even after the senate approves this Amendment, in order for it to be ratified, it would have to be then approved by each state. Since the constitution upheld that an individual is innocent until proven guilty, increasing bail amounts is not a good idea because subsequently it will increase the number of people in jail waiting for trial, due to the fact that an innocent person will be imprisoned until trial. In addition, if the bail amount increases or the judge denies bail there will be more people in preventive detention waiting for trial, who may be affected as well as their families.

Preventive detention and bail are very controversial issues for the justice system. However, even when there are many people against it, the support to preventive detention has growth impressively. There are many arguments in favor of preventive detention and bail. The first argument is the protection of community. Many people think that offering a bail to a criminal endangers society. Those in favor argue that leaving criminals free waiting for trial is a bad idea because those criminals can commit more crimes and also can hurt their victim once again. Even when the offender was granted by bail he might, threaten and even retaliate against their victims and witnesses in the case. Denying prisoners a bail would protect the victim and is a good idea not only for the victim but also for all those around the criminal. Denying bail prevent the criminal from appear in court. “A majority (61%) of the defendants released into the community to await disposition of their case had been arrested previously. This included 27% who had failed to appear in court during a prior case. About half had 1 or more prior convictions (48%), and nearly a third (30%) had at least one prior felony conviction. About 1 in 4 released defendants had and active criminal justice status from a prior case at the time of their arrest” (Cohen & Reavens, 2007: 5). The judiciary has the right to deny bail to criminal suspects. When bail is denied the accused is held in preventive detention, in fact, that is what many people wants to keep the offender in prison. While the offender is in preventive detention they can’t commit more crimes. Many in favor of preventive detention think that this is the most appropriate measure to protect society. “There have been many cases in which persons released on bail committed several crimes while on pretrial release, crimes that could have been avoided if the defendant had not been released” (Ervin, 1971).

The second argument in favor of preventive detention and bail is the Bail Reform Act Of 1984 (BRA). This Bail Reform Act of 1984 modified the Bail Reform Act of 1964. Bail Reform Act of 1964 did not allow the judges in capital cases to consider the danger that could cause criminals in the community. Therefore the criminals who were released on bail committed crimes most violent and heinous. The 1984 law came to replace the law of 1964, which allowed judges to keep criminals in preventive detention, because those criminals can be a high risk for the community. The Bail Reform Act of 1984 protects the community from dangerous individuals.

These arguments in favor of preventive detention and bail have many points very certain for those who think that to deny bail and keep criminals in prison awaiting trial are the best ways to protect the community. However, those people in favor don’t think in the damage they cause to offenders and their families, and even the whole community because the more people in prison, the more costs for us and for the government.

There are many people against of the preventive detention and high bail amounts. It would be terrible having to be in prison awaiting for trial and after all being found innocent. All that loss of time in prison is not recovered and even worst is that during that time an individual losses everything, job, life and family. There are many reasons against the excessive bail and preventive detention. The first argument is that we are innocent until proven guilty (Due Process, Predictive Justice and the Presumption of Innocence). The U.S Constitution provides that everyone who has been accused of a crime is innocent until proven guilty. Everyone has rights and the Constitution protects our rights. However there have been several changes in the justice system and the presumption of innocence does not protect defendants before trial. For this reason the population in jails and prisons has increased dramatically since they are on preventive detention without being charged with any crime. Everyone has the right of defense until proven innocent or guilty. The judge has no right to punish the defendant for any crime for which the offender has not been proven guilty. It is a contradiction to keep a person imprisoned while on the other hand, the offender is presumed innocent. The justice system of the United States presumes innocent. The guilty offender must be treated as innocent until the judge can prove otherwise. In spite of the presumption of innocence that is used in our judicial system is not stipulated in the Constitution. United States is not the only country that protects the individual, but also the United Nations. The United Nations in its Declaration of Human Rights incorporated an individual is innocent until proven guilty, under article eleven, section one. In this way was that it stipulated: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offense was committed. “Summarily locking up millions of people who are presumed innocent is not only a violation of international norms, but also unnecessary” (Berry,

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