Sunday, August 3, 2008

Why not charge?

It's not a small thing to be charged with a crime. Sometimes, I think police, prosecutors, and court personnel need to be reminded of this. All too often, police hear accusations and denials and think, "this is a disputed, he said/she said thing, so I'll just turn the mess over to the prosecuting attorney and let him/her decide what to do with it." Then the prosecutor sees the same muddle and thinks, "I'll just present it to a jury and let them decide." This is deemed an equitable and just way to resolve a dispute. But there are serious, life-altering consequences to being charged with a crime that should not be overlooked before that decision to file the charge and "let a jury decide" is made.

Say you're charged with a low-level felony based on this accusation. Well, an arrest warrant has to be served and you'll be taken to the county jail and booked in, fingerprinted, searched, etc. This could become humiliating quickly if the jail performs strip searches on incoming inmates. Now, where I'm from, if you're arrested on a felony, no matter how minor, you can't just be bailed out of the jail. So your friend or family member can't follow the squad car that takes you in and have you bailed out as quickly as you can be processed in. For a felony, a judge has to set the bond amount, which means you stay in the jail at least until you get your first appearance the next business morning. If your sheriff is like mine, he will likely wait until Saturday to serve that arrest warrant, so you have to spend two nights in jail before a bond can be set. (The jail gets money from various sources based on how many inmates it houses each night so they make money off of your lost liberty.)

A lot of local papers publish a daily list of arrest reports, so your friends, neighbors, and colleagues or employers will all be able to see you were arrested and what the charge is. I hope your job doesn't have a low tolerance for absences, because if you're scheduled to work Sunday or Monday, well, you won't be able to show. And a job that has a low tolerance for any absences probably isn't going to be swayed by your protestations that the accusation against you is false. For a lot of people, it is a very real possibility that having to spend two or three nights in jail could cost them a job.

Even after you get your first appearance, you still have to wait a while to bond out. The judge doesn't just set a bond amount without having any knowledge of your history. The judge orders a bond screen to be completed by court personnel. They are supposed to do some pretty basic checking of your criminal history, including whether you have a history of failing to appear for court. They should check on your known address, employment, and other ties to the community. The purpose of bond, after all, is to insure your appearance at future court appearances. If the court personnel have too many bond screens to do or have other work tasks that need to get done or just have a long lunch or afternoon doctor's appointment, your bond screen just won't get done. They'll still get to go home at 5 whether they finished all the bond screens or not. It won't affect their lives one bit that you have to spend another night in jail just because they didn't do their jobs.

So once the bond finally gets set, you have to hope it's a low enough amount that you can pay the entire thing in cash. If it's low enough, you can pay the entire $500 or $1000 in cash, knowing that you will get that amount back after the case is done if you make all your court appearances. Of course, few people can just fork over that much cash and not feel it. Getting the money back in 3 or 4 months doesn't help you pay the rent this month. Losing that cash now would suck the most if you're one of those lucky folks who lost a job over a few nights spent in jail. If the bond is too high, your family is put in the heart-wrenching position of having to decide whether they will fork over the 10% to a bail bondsman to get you out today, knowing that money will then be lost forever, or whether to wait until the next day when they can appeal to the judge to lower the bond, knowing you'll then have spent yet another night in jail.

When you do make your court appearance, you're in those horrible jail scrubs, slippers, and shackles. You're shuffled into court in this condition for all to see. At these cattle call dockets, there are usually a lot of people in the courtroom to witness your humiliation. It really doesn't matter whether you know anyone in the room or not; at least your family knows you don't belong in shackles, but those strangers will see only another common criminal.

Even if the charge is ultimately dismissed or you are acquitted by a judge or jury, none of the prices you have already paid can be repaid to you. You may get the money you paid out in bail, but that's going to be your only compensation for the nights in jail, money paid to a lawyer, the humiliation of being known in your community as an alleged criminal, and the anxiety of dealing with it all. And the consequences can continue long after the case has been decided in your favor. Potential employers who conduct background checks may find out about your arrest history and not care about the end result of the case. Most papers don't publish a report about your non-conviction. So the damage of being charged with a crime may hang over you long after the prosecutor and court have forgotten about your case, having written your case off as one that proves the system works.

All of the above applies equally to cases of over-charging. Charging a felony for misdemeanor conduct yields many of the same unfair consequences, especially as it relates to bail. Don't think I don't recognize the role defense attorneys can play in this process. We also can contribute to the consequences by delaying a bond hearing a day or by asking for continuances. Sure, we have lots of cases to handle and can't get to everything as quickly as we would like, but we should always keep in mind that our garden variety agg battery case is the most important thing in our client's life. But my focus here today is on the initial decision to charge.

Because of how serious the consequences of simply being charged with a crime can be, police and prosecutors need to be incredibly thoughtful before making the decision to arrest or charge someone. I worry that it's easy for people involved in the court system on a daily basis to forget what a big deal it is for an accused to get sucked into the system. But it is a big deal. A huge deal. For many people we deal with, this charge will be one of the worst things they will ever have to face. Police and prosecutors need to be mindful of this fact, and make sure that they're only commencing criminal prosecution where it really is warranted.

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