Opinion: Vote for Fair Pretrial Procedure in the WA
By Barfleur - Resolution Author, Member of the WA Secretariat
25th November 2024
Note: This op-ed was written by the author of the World Assembly proposal 'Fair Pretrial Procedure'. You can view the text of the proposal here.
OPINION: Any criminal justice system must balance two important facts. First, all defendants are presumed innocent until proven guilty beyond a reasonable doubt. Second, people charged with crimes are often at risk of not showing up to court when required, especially if they are facing a significant sentence upon conviction, or pose a danger to the public. Think a well connected financial crook with a private jet, a mob boss with loyal henchmen willing to carry out hits on his command, a domestic abuser who will continue harassing their victim.
To strike this balance, courts must treat pretrial release or detention with individualized consideration, making sure that the public is protected while minimizing inherent injustices. After all, a defendant who is incarcerated pending trial is more likely to plead guilty in exchange for a shorter sentence than one who is free on bail, regardless of whether they are actually guilty, not to mention that prolonged incarceration prior to conviction will almost always result in losing one's job and income. Even before trial, when the defendant is still legally innocent, they should not be deprived of liberty unless necessary.
There is also the issue of "cash bail": while in theory it functions as an alternative to pretrial detention, in practice it means that the wealthy can maximize their liberty and their odds at trial for the sole fact that they can afford a down payment. A fair bail system would determine whether a particular defendant is a flight risk or a public safety risk; if they are deemed safe enough to release, the fact that they are poor or with other financial obligations should not stand in the way of freedom.
The proposal Fair Pretrial Procedure would work several changes in how bail functions. For one, it would create a presumption of liberty: a defendant would not be incarcerated unless no other conditions could ensure that they attend court and do not endanger the public. And when the judge decides which conditions are imposed, they must not be overly restrictive, to minimize the harms caused to the defendant's family, employment, and trial strategy. Nor may cash bail require the defendant to sell their home or car, a requirement that does nothing to keep people safe but does drive families into poverty, even then the defendant is later found not guilty.
It would also forbid the cynical use of harsh bail conditions as leverage to secure guilty pleas or other violations of rights, a practice that violates the most basic principles of due process and good government. And it would confirm that a person's race, gender, and the like cannot be used as grounds to find dangerousness: individuals are judged by the facts of their respective cases, not by stereotypes and prejudices.
In recent years, jurisdictions like New York and Illinois, among others, have amended their bail laws to remove elements which unnecessarily restrict while doing little to serve their stated purpose. Those laws are not associated with any meaningful increase in crime, and there is no reason to believe this would be any different in-universe. Judges would still be free to impose necessary conditions on dangerous defendants, but they must be measured and reasonable. I thus respectfully encourage you to support Fair Pretrial Procedure.
Editor's note: Only minor grammatical and formating edits were made to this op-ed. The views reflect those of the authors and not necessarily those of The NationStates Times. Edited by Ecclestia.
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