Committee Prints

A far-reaching investigation of the need to safeguard the constitutional rights of American citizens in the administration of criminal justice has been undertaken by the Subcommittee on Constitutional Rights since 1958. Apart from its continued study of arrest, police detention, involuntary confessions, discovery, venue, and the right to counsel, the subcommittee has focused its attention on existing Federal bail procedures.

Background and theory of bail in America

The bail system in America had its origin in medieval England where untried prisoners were released on the oath of responsible persons to act as sureties for the accused. The statute of Westminister in 1275, and subsequent bail statutes, further systematized bail practices and protected the accused from excessive bail. In England today, the magistrate is authorized to deny bail in cases where he considers the accused likely to tamper with the evidence or commit additional offenses while released on bail.

Although the U.S. Constitution does not expressly provide the accused with the right to bail, the eighth amendment states that "Excessive bail shall not be required ***" Before ratification of the Bill of Rights, Congress passed the Judiciary Act of 1789, which provided that

upon all arrests in criminal cases, bail shall be admitted,
except where the punishment may be death, in which cases
[bail is discretionary, depending uponj the nature and
circumstances of the offense, * **the evidence, and usages

of law.

This historical basis for the claim that persons arrested for a noncapital offense shall be admitted to bail is reflected today in the existing Federal Rules of Criminal Procedure. Rule 46 (a) (1) provides:

A person arrested for an offense not punishable by death shall be admitted to bail. A person arrested for an offense punishable by death may be admitted to bail by any court or judge authorized by law to do so in the exercise of discretion, giving due weight to the evidence and to the nature and circumstances of the offense.

Rule 46(c) provides:

If the defendant is admitted to bail, the amount thereof shall be such as in the judgment of the commissioner or court or judge or justice will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail, and the character of the defendant.

The right to bail in noncapital cases was upheld by Justice Jackson in Stack v. Boyle, 342 U.S. 1, 4 (1951):

From the passage of the Judiciary Act of 1789 *** to the present Federal Rules of Criminal Procedure *** Federal law has unequivocally provided that a person arrested for a noncapital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction ***. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

The discretion provided a judge in setting bail is limited to determining the amount of bail considered necessary to insure the appearance of the accused at his trial. Again, Stack v. Boyle, 342 U.S. 4, 5 (1951), is relevant:

The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty ***. Since the function of bail is limited, *** bail * ** must be based upon standards relevant to *** assuring the presence of that defendant.

Admission to bail always involves a risk that the accused will take flight. That is a calculated risk *** the price of our system of justice. We know that Congress anticipated that bail would enable some escapes, because it provided a procedure for dealing with them.

Under Federal bail procedures then, judges are not authorized to use bail as a device to prevent anticipated, but unconsummated crimes; to protect witnesses or evidence; or to punish or treat persons accused of crimes.

In short, Federal bail procedures are designed and intended solely to assure the defendant's appearance at the time of his trial. Problems and inequities in the Federal bail system

Typically, under Federal bail procedures the accused is brought by the arresting officer before a committing magistrate who determines the amount of bail the accused must obtain. If the accused can pay a bondsman to post this bail for the accused, he is released until his trial. If the accused is financially unable to meet bail requirements set by the bondsman, he is denied his pretrial liberty.

Federal bail procedures are in direct conflict with two of our cherished principles of justice-equality before the law and the presumption of innocence.

Relying primarily upon financial inducements to insure the presence of the accused at the trial, rather than the character or community ties of the accused, Federal bail procedures inevitably disadvantage person of limited means.

Being unable to post bond and being confined severely handicaps the accused in preparing his defense. The accused cannot locate witnesses or consult his lawyer in the privacy of his law office; the accused often loses his job and is unable to support his family. Worse

« 上一頁繼續 »

圖書