The harm of detention before trial

Published 5:17 pm Monday, August 26, 2019

By Jason Swindle
Senior partner Swindle Law Group P.C

Unfortunately, keeping a person who has been accused of a felony offense in jail until their trial is more common than you may think.

Anyone can be accused of a crime.  To be arrested for an alleged crime, a police officer must obtain an arrest warrant based on the legal standard of “probable cause.”  This standard of proof is significantly less than “guilt beyond a reasonable doubt.”

When a person is arrested in Georgia, he or she will oftentimes appear before a magistrate judge within 48 hours.  The judge will either grant or deny a bond. 

If bond is denied, the person must sit in jail.  The person may or may not be granted a bond by a superior court judge weeks later at a formal bond hearing. 

Now, there are times when denying bond is appropriate.  Some of these include (1) when a person has many prior convictions, (2) has a history of not appearing for court on many prior occasions, or has demonstrated that they intend to flee to another state or country and has the financial means to do so. 

In Georgia, the primary consideration in the analysis of whether to set bond is the likelihood the accused will appear for court. 

But, a growing body of research suggests that pretrial detention is ineffective and causes serious harm to the hundreds of thousands of people across the nation who languish in jail either because their bond was denied or they cannot afford to pay the bail money required to be released. 

This is not just a temporary hardship. According to the Vera Institute, people detained for longer periods are more likely to be convicted and receive harsher sentences than those who are freed from jail by “bonding out.”

Being detained before trial also makes it much more difficult for a person to earn the money needed to pay for defense attorneys or for a person to engage in activities that can oftentimes address the problems that, if guilty, contributed to their behavior. 

When a client is out on bond, he or she can begin straightening out their life by earning money to pay restitution to victims, obtaining additional education, seeking mental health or drug treatment, etc.  By taking advantage of some of these opportunities, the chance of obtaining reduced charges, dismissals, or other positive outcomes increases.

Being punished before being convicted of a crime is fundamentally unfair. 

However, as new technology emerges, I hope to see more people released under conditions that protect the public, alleged victim, and further ensure that the court date is not missed.