Wednesday, September 12, 2018

Another Kind of Unreasonable Bail Condition

The 8th Amendment to the US Constitution reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

I've commented on excessive cash bail requirements -- and outright denial of bail -- in the past, opining that given the supposed presumption of innocence in American courts, the only legitimate purpose of bail is as an incentive to appear at trial. The whole "he could be dangerous, don't let him out" argument doesn't fly, because insofar as the legal system is concerned, until he's been convicted there aren't any grounds to treat him as if he actually committed the crime.

It seems to me that that argument gets stronger and stronger as more and more cases get resolved with pre-trial "plea bargains." Presumably the single-digit percentage of defendants who go to trial rather than cop a plea do so because they believe they'll be acquitted, which would seem to be an incentive to show up and get their bail money back (or not have a bail bond company's bounty hunters after them).

But then there are also "bail conditions" other than merely posting a cash or property bond against a future court appearance.

I've noticed such a condition several times that strikes me as both "excessive" and as "cruel and unusual punishment." Here's the exact wording from one court document:

... that he have no access to the internet, text messaging or email, or devices that were capable of executing these functions ...

As of the end of 2016, more than half of US adults had ditched landlines entirely and had only cell cell phones. The percentages ran higher for demographics probably more likely to be charged with a crime (renters, the poor, Hispanics) than e.g. white middle class property owners. And those percentages are probably increasing across all demographics. As far as non-phone communication, I'm guessing that the vast majority of Americans use email in preference to sending a postcard or whatever.

So this kind of bail condition is essentially a demand that the defendant hold himself incommunicado except for in-person, face-to-face conversations or maybe writing notes on paper airplanes or something.

Seeing as how pay phones exist only in a few places these days (I've seen some at airports and bus stations), how is a defendant even supposed to communicate with his lawyer in between office visits? And how many people work in environments where texting and email are part of the job?

In cases where the concern is that a defendant will harass his or her alleged victim, what difference does it make that the harassment would have to take place over a landline instead of via email, text, etc.?

Any judge who imposes no-phone/no-Internet bail conditions should be required to adhere to precisely the same conditions. Including at work.

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