Innocent Until Proven Guilty, But…

Most Americans operate under the assumption that, if they ever become entangled in the U.S. criminal justice system, they will be treated as if they were innocent until they are proven to be guilty. This Constitutional principle, known as the “presumption of innocence,” is intended to ensure that any potential criminal convictions are rooted in fact rather than human bias or other potential human error. It is supposed to support every person’s right to a fair trial.

While Americans are entitled to a presumption of innocence, there are certain legal elements that occur in the criminal justice system prior to any form of conviction that may make those charged with a crime feel as though their guilt, or at least the likelihood of their guilty, is being presumed instead. This is the case with Pretrial Detention, when someone who has been charged with a crime is forced to remain in jail without the option for bail until their trial is concluded.

How Pretrial Detention Works

When you are charged with a crime, a judge must determine whether you will remain in custody until your trial begins or be released. At your initial court appearance you may be released on your own recognizance, you may be granted release on the condition of bail, or you may be denied release while you await your criminal trial. If the judge has reason to believe that you will fail to appear at trial, or that you pose a serious danger to the community, then you may be detained until the trial. These factors—such as the perpetrated crime being of an especially violent nature or the charged individual having significant resources at their disposal which could be used to flee—are reviewed on a case by case basis, and they can affect certain types of arrestees more than others.

Why it is used

Judges set bail as a kind of guarantee that a defendant will attend trial—pretrial detention is ostensibly a last resort. The utility of pretrial detention becomes clear when considering federal crimes involving violence, terrorism, major drug offenses, and other serious offenses. The judicial process relies on pretrial detention to prevent lawbreakers from escaping the criminal justice system until they are convicted and sentenced.

How it affects the judicial process

Studies have shown that compared to arrestees who await their trials at liberty, pretrial detainees in the United States are more likely to be convicted and more likely to receive a custodial sentence in the case of a conviction. Pretrial detention implies a state of legal limbo where innocent people may be stripped of certain rights on grounds that have yet to be proven in a court of law.

Research also suggests that arrestees are more likely to plead guilty to avoid pretrial detention, even if they are innocent. Similarly, defendants in pretrial detention are much more likely to be susceptible to a guilty plea. While defendants should be presumed innocent until they are proven guilty, pretrial detention can impose an unjust punishment on the innocent—keeping them away from family, work, and so on—and even subject them to wrongful convictions.

Who it affects

Pretrial detention disproportionately affects marginalized groups of people. Arbitrary and excessive use of pretrial detention can have a greater impact on defendants with mental illness or disabilities, minorities and non-citizens, the poor, and others. Even minor charges like petit theft, possession of marijuana, vandalism, or trespassing can be devastating to someone who is economically disadvantaged or unfamiliar with the rights usually afforded to a defendant. When public attorneys are overwhelmed with work, defendants have less access to adequate legal representation, which in turn increases their risk of pretrial detention. And when judges are flooded with cases to review, they are more likely to order unreasonable pretrial detention or bail.

How it can be avoided

Another United States study found that arrestees with legal representation were more than twice as likely to be released from pretrial custody on their own recognizance, and more than twice as likely to have their bail reduced to an affordable amount. A skilled defense attorney can help you avoid pretrial detention and protect your legal rights at every stage of the judicial process. Call Criminal Defense Attorney Barry Wax to secure your release and get effective counsel to represent your legal rights and best interests.

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Written by Law Offices of Barry M. Wax

Law Offices of Barry M. Wax

For 32 years, I have provided both State- and Federal-Level representation for those facing charges ranging from wire fraud, mortgage fraud, and healthcare fraud to identity theft, drug trafficking, money laundering, murder, DUI, domestic violence and numerous other criminal charges. In every case, it is my commitment to one-on-one service and support that has separated the Law Offices of Barry M. Wax from other criminal defense firms. When it comes to your future, you need a strong defense and the ability to make the right choices and regain control of your life.