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Univ. of San Diego School of Law

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Wednesday, April 18, 2012

Appleman on Pretrial Detention, Punishment, and the Sixth Amendment

Appleman lauraLaura I. Appleman (Willamette University College of Law) has posted Justice in the Shadowlands: Pretrial Detention, Punishment, and the Sixth Amendment on SSRN. Here is the abstract:

In a criminal system that tips heavily to the side of wealth and power, we routinely detain the accused in often horrifying conditions, confined in jails while still maintaining the presumption of innocence. Here, in the rotting jail cells of impoverished defendants, are the Shadowlands of Justice, where the lack of criminal procedure has produced a darkness unrelieved by much scrutiny or concern on the part of the law.



This article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those convicted offenders existing in prisons. Due to these punitive conditions of incarceration, pretrial detainees appear to have a cognizable claim for the denial of their Sixth Amendment jury trial right, which, at its broadest, forbids punishment for any crime unless a cross-section of the offender’s community adjudicates his crime and finds him guilty. This article argues that the spirit of the Sixth Amendment jury trial right might apply to many pretrial detainees, due to both the punishment-like conditions of their incarceration and the unfair procedures surrounding bail grants, denials and revocations. In so arguing, I expose some of the worst abuses of current procedures surrounding bail and jail in both federal and state systems. Additionally, I also propose some much needed reforms in the pretrial release world, including better oversight of the surety bond system, reducing prison overcrowding by increasing electronic bail surveillance and revising the bail hearing procedure to permit a community “bail jury” to help decide the defendant’s danger to the community.

http://lawprofessors.typepad.com/crimprof_blog/2012/04/appleman-on-pretrial-detention-punishment-and-the-sixth-amendment.html

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Comments

Criminals serving sentences in any prison should not have the privilege of using this technology. It’s disruptive and takes away control over inmate’s behavior. Anyone smuggling in or selling cell phones to inmates should be aware that they can be charged with a misdemeanor if caught.

Posted by: bail bonds in Las Vegas | Apr 18, 2012 7:38:25 PM

the bail reform act of 1984 needs to be repealed, and the right to non-excessive bail re-enacted. since 1984, pretrial jail populations have double since judges were given the power to detain before trial. and when its repealed, judges who set excessive bails need to be either sanctioned, fined and removed from office. the pretrial jail populations would immediately drop by 50%, leaving those who have burned all their bridges to sit in jail because their family/friends are fed up with them, or family/friends think its best that they dry out and get the help they need when in jail. bail was never release, it was custody provided by family/friends. own recognizance is not bail - it is release, and failures to appear are five time the rate of bail custody. mom and grandma who put up the temporary bail deposit make sure they get their deposit back. drug using junior roaming the neighborhood on own recognizance will miss court to get high - happens everyday. and when it happens, it costs tons of money to get victims and witnesses and court staff and prosecutors and defense lawyers to reschedule. and junior suffers no penalty whatsoever for failing to appear. start a bike rental business, and rent your bikes without a deposit - you would be out of business in a week. repeal the bail reform act of 1984 - it voided the once constitutional right to bail guaranteed by the bill of rights/judiciary act of 1789.

Posted by: aa | Apr 19, 2012 2:31:52 PM

there are approx 3800 jails in america. over 80% of them are undercrowded and clean and safe. they are not dungeons. of the other 20 % less than 25 of those are truly horrible. a judge sets bail, not to enrich bail bondsman, but to get the family/friends involved in saving their son/daughter/grandson/granddaughter/husband/wife... the judge will transfer the custody to mom/dad/grandma... and will be happy to do so. but the judge also understands that mom/dad/grandma when they have an incentive, like the loss of a bail deposit, will do what they promised - and thats get junior in court to stand for the charges. thats it - thats what the bail deposit is all about - incentive. judges know that personal recognizance is a complete joke, and they know that it costs tons of money to reschedule. so if they do indded have to issue a bench warrants, spend money hunting junior down, reschedule the court date, and tell the victim "sorry" for not delivering justice - the forfeited bail deposit at least defrays the costs of police search and court reschedule. repeal the bra of 1984 - bring back the constitutional right to bail.

ps - the local jail here was overcrowded 6 years ago. today it is 55% full (2,000 empty beds), and its on tv all the time doing "in jail" shows. the place is spotless, you can eat off the floor. the inmates and the staff are dressed with new clothes. thanksgiving is a 6 course meal. they have tv, air conditioning, and every remedial treatment program you could imagine, plus all day phones and daily visitation via video. the locals pay $130 a day to provide this. plus it has a 200 bed infirmary and full time 24/7 medical/dental staff. the worst problem an inmate has is "boredom". these inmates live better than 25% of the local population - albeit limited freedom. this place is the opposite of a dungeon. and 80% of the 38oo jails in the u.s. are in this category - safe, clean, and offer help. i suggest you review the facts, and stop buying whatever your moron professors are feeding you. very few jails in america are in "crises" mode, and if you think that society can function without having "detention centers" - your nuts.

Posted by: aa | Apr 19, 2012 2:54:04 PM

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