By George Frobisher

This is in response to K.R. Claviger’s otherwise thoughtful piece, Appellate Ruling Dooms Epstein’s Appeal on Denial of Bail – Will Likely Be Held at MCC Until Trial.

In it, Claviger says, “How about we just adopt the standard that says if you’re facing more than 25 years in prison, you’re not getting bail?”

I think the problem with denying bail automatically to any defendant charged with crimes that would see a sentence of 25 years or more is that prosecutors will abuse it.

Human nature being what it is, prosecutors would simply tack on more charges to insure a defendant is denied bail. That will make their job much easier.

It is harder to defend oneself at trial while in custody. You cannot see your attorneys unless they come to where you are being held in jail or prison. This is highly inconvenient for busy lawyers. Any good lawyer is busy.

Then when the lawyer comes, they must meet you in a room in jail which is often not private.

You have no easy access to phones, printers, emails, copy machines, cameras, photos. Sometimes even paper and pen is hard to get.

In addition, being in prison or jail saps a person of their health and optimism. It is hard to get decent food, sunlight, relaxation, ministering spirits – or good company.

That may be OK for prisoners who have been convicted but for someone who is innocent until proven guilty – denial of bail is punishment indeed.

Suppose you are innocent. Suppose the government has falsely charged you.

It can happen.

Then all things that could aid your defense are hard to get. Once a man is denied bail he is almost certainly going to be convicted. Even if innocent.

Even an innocent person would be inclined to take a plea deal since the odds of mounting a successful defense dramatically goes down once a person is denied bail.

The Innocence Project has demonstrated that about 10 percent of people convicted on plea deals were actually innocent. That means people accepted plea deals though they were 100 percent innocent because prosecutors so overcharged them that they were facing much longer prison sentences and could not take the risk.

The reason why the idea that any potential sentence of 25 years of more requires a defendant to be denied bail is wrong is that all a prosecutor would have to do (and they can easily do it on purpose ) is lead [or mislead] a grand jury into agreeing to more charges.

You have heard it said that “a grand jury will indict a ham sandwich.” What is meant by that is that in America the grand jury has lost its true purpose. It used to be an independent investigative body – made up of the people – not the government – which is supposed to investigate crimes and prevent the government from charging innocent people.

The grand jury assumes an indictment alone is highly destructive to an individual citizen and its original role was to protect citizens from hasty or malicious governmental abuse.

It has completely lost that purpose. It now serves solely as a tool of the prosecution. It is a complete perversion of what the grand jury was intended to be. It may be one of the reasons why the land of the free has the largest percentage of its people in prison in the world.

Originally, the grand jury was meant to stop overzealous prosecutors. Now it serves to enable overzealous prosecutors.

So, now if bail is denied to anyone who faces more than 25 years – as Claviger suggests – and if it is true that a defendant has far less chance of defending himself [even if he is innocent] if denied bail, and if it is true that a prosecutor – using his tool – the grand jury – has a large amount of prosecutorial discretion – to overcharge [there is no punishment for the prosecutor for overcharing] then all a prosecutor has to do is charge enough so that it adds up to more than 25 years.

Bingo – the man is ruined. We then have a complete police state. [We very nearly have a police state now in my opinion.]

Even if the prosecutor could not prove all charges, it would hardly matter, because the defendant would be denied bail and would not be able to properly defend himself.

If he is charged with 20 counts and he is convicted on only one – the prosecutor still declares victory.

Can you imagine what it will be like if everyone is denied bail merely because prosecutors can level 25 year charges on them?

All of a sudden we will see almost everyone charged with indictments that carry 25 years and a day penalties.

The idea is horrifying.

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