I would add that too many times the victim's rights take second place to the (alleged) criminal's.
Howard, you obviously put this poll up because of all the comments about the (alleged) sexual assault of a two year old. I stand by my belief that if a judge takes into account the nature and severity of the crime, it in no way violates the (alleged) criminal's rights by requiring a VERY high bail. Society in general has every right to not have to worry that the (alleged) perpetrator is at large.
A kid gets caught with a joint. Release him to Genesee Justice. A shoplifter at Walmart? Release her to Genesee Justice.
Evidence of a violent and unfathomable of sexual abuse of a two year old????
Hold him til trial. Protect society. I have enough faith in our law enforcement agencies that there would not have been an arrest unless there is ample evidence that this horrible crime was committed by this horrible person. Let the courts settle it.
No, Howard is absolutely correct, bail should be based on two things, 1) Flight risk. 2) Danger to self or community.
That is why in most cases murder suspects are denied bail, because of risk to self or community.
Most illegal aliens are denied bail because of flight risk.
Once you begin parsing rights because of emotional responses to particularly distasteful crimes, you begin to walk down the slipery slope that can find yourself in a situation. Many a times men have been falsely acused of sex crimes (Need I bring up Duke Lacross Case again)that turned out to false.
Once we forget innocent until proven guilty, we undermind all that is good about our justice system
Mark, you're actually agreeing with Bob on the element of community risk.
And I disagree that murder suspects are denied bail based on danger to the community. If that were the case, Scott Doll would have been denied bail.
Scott was granted bail because he had strong ties to the community and wasn't a flight risk, even though he was facing a possible 25 years to life sentence (he got 15 years to life).
And that's where the severity of the crime comes into play -- the possible ramifications of the sentence can have a lot to do with how likely a person is to flee.
And if I remember correctly, Scott's bail was revoked as soon as he was convicted ... I know I remember correctly because that day he was accused of trying to sneak white powder into the jail.
Howard, of COURSE any person - innocent or guilty - wants to be released. Do you argue the point that the VAST majority of people arrested are guilty of their crimes? Especially felony arrests were great precautions are take before the arrest?
I stand by my previous point that the rights of society in general trumps the right of any individual. Are people wrongly accused? Absolutely - though rare, it does happen, and that is not right. I don't believe that can be avoided, unfortunately. And I believe there should be restitution of some type in those rare cases.
To me, there is no possible justification of releasing a person accused of a sexual act upon a child should be released without bail simply because it is a first offense and they have ties to the community.
Again, $250 bail for petit larceny (above) and no bail required for for the type of act we are discussing. I truly cannot get my mind around that.
You also failed to answer a question; what if it was YOUR child, and the accused lived in YOUR area?
Actually Howard I am not, a suspected serial killer would be very unlikely to be granted bail, 1st degree or planned murder suspects rarely get bail.
In the case of Scott Doll, If I remember correctly, the charge was second degree murder, I may be wrong.
There is now judicial disgretion, there always has been, I am quite certain that risk of self or community danger is a guidline for bail.
The recent child abuse case as an example, while we know the guy was charged, it is up to the prosecutor to recommend bail or remand to the judge, in which case the prosecutor must provide the judge sound legal reasoning at the arraignment, and the defense will counter with the argument of flight risk and /or risk of harm to community then the judge decides based on the facts presented.
Not all murder suspects are a risk to the community at large, that is why there are different degrees of murder by statue in the first place.
I think Bob is only partially correct, not totally, it is not for a mob to decide when bail is appropriate, it is for the judge based on sound legal argument
"I stand by my previous point that the rights of society in general trumps the right of any individual."
Wow, what an astounding statement for a self-proclaimed conservative to make. That's the very basis of socialism and progressive political philosophy. Next you'll be arguing for socialized medicine, higher taxes on the rich, and more social services for the poor (all programs that favor the society over the individual).
The rights of society over the individual. Wow. I don't see how anybody who considers himself a conservative can say something that followed to its logical conclusion leads down the path to dictatorship.
The Constitution, especially the Bill of Rights, is all about protecting the individual against the State (society). I thought you respected the Constitution? Now you admit to trampling on it. Wow.
When I entered the US military, I took an oath to protect and defend the United States Constitution. It's an oath I took seriously then and an oath i took seriously now.
Oh, I forgot, the modern conservative only cares about the Constitution when it suits their political aims. When it gets in the way of their own agenda, they're ready to feed it to the document shredder.
Hey Bruce, maybe you SHOULD read the constitution before you comment on it. I dislike illegal aliens as much as anyone else, especially when they commit criminal acts. However here is section 1 of the 14th amendment in the Bill Of Rights...
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
If you notice it does specifically define what a citizen is, also specifically states that any law that abridges the privelidges or immunities of said citizens.
BUT IN THE 15 WORDS specifically states that ANY PERSON (NOT CITIZENS ONLY) within any state in the United States shall not be denied equal protection under the laws, due process under the law nor even be deprived of life liberty or property.....
So even if not a citizen naturalized or otherwise you still have rights granted under this Constitution.
Mark, the way you put it makes sense ... and while I've sat in dozens of bail review hearings, it's still a small sample size. There may be exceptions I've never witnessed. I've yet to hear a prosecutor argue for a higher bail based on perceived risk to the community. Nor have I heard a judge proclaim that as a reason, or not, for setting a particular bail. It's always been about perceived flight risk. The possible sentence, ties to the community, previous convictions, previous interactions with the judicial system (showing up for court, not violating probation or supervised release, etc.)
Also, murder 1 would certainly be a higher flight risk than murder 2; also, a serial killer would likely present a high risk of flight for all sorts of reasons that have nothing to do with perceived danger to the community.
Bob, I am stunned, the rights of society vs individual rights?
The differnce between our system and communism is "The Right Of The Individual!"
It is NOT our opinion that matters here, it is what is appropriate under the LAW
Our very fiber as a nation is based on Individual Liberty, and the PROTECTION OF OUR INDIVIDUAL RIGHTS
I stand by my arguement, there are times when a Judge can deny bail based on community danger, but for he/she to apply that needs to be based on sound legal arguement, NOT community fears and opinions.
In most cases, the public at large does not know all the legal points and supporting evidence at arraignment, we usually do not know all the facts until after the trial
Actually Bob the burden of proof is indeed upon you, if you make up a story that is in any way accusatory of anyone it is not generally considered valid without you providing the "proof" of your claims and is dismissed. Its been that way for about 2000 years in civilized society.
Roman law: The sixth century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat[1] — "Proof lies on him who asserts, not on him who denies".[2] It is there attributed to the second and third century jurist Paul. When this rule is applied to criminal process (whether or not that was done in Roman law itself), it places the burden of proof upon the accuser, which has the corollary that the accused is presumed to be innocent.
[edit] Common law: In sources from common law jurisdictions, the expression appears in an extended version, in its original form and then in a shortened form (and in each case the translation provided varies). As extended, it is: Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit — "The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof."[3] As found in its original form, it is (as above): Ei incumbit probatio qui dicit, non qui negat — "The proof lies upon the one who affirms, not the one who denies." [4][5] Then, shortened from the original, it is: Ei incumbit probatio qui — "the onus of proving a fact rests upon the man".[6]
"Presumption of innocence" serves to emphasize that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt (or some other level of proof depending on the criminal justice system) and that the accused bears no burden of proof.[14] This is often expressed in the phrase innocent until proven guilty, coined by the English lawyer Sir William Garrow (1760–1840).[15] Garrow insisted that accusers be robustly tested in court. An objective observer in the position of the juror must reasonably conclude that the defendant almost certainly committed the crime.[16]
The presumption of innocence is in fact a legal instrument created by the French cardinal and jurist Jean Lemoine to favor the accused based on the legal inference that most people are not criminals.[17] It is literally considered favorable evidence for the accused that automatically attaches at trial.[18] It requires that the trier of fact, be it a juror or judge, begin with the presumption that the state is unable to support its assertion.[17] To ensure this legal protection is maintained a set of three related rules govern the procedure of criminal trials. The presumption means:[14]
1.With respect to the critical facts of the case - whether the crime charged was committed and whether the defendant was the person who committed the crime - the state has the entire burden of proof.
2.With respect to the critical facts of the case, the defendant does not have any burden of proof whatsoever. The defendant does not have to testify, call witnesses or present any other evidence, and if the defendant elects not to testify or present evidence, this decision cannot be used against them.
3.The jury or judge is not to draw any negative inferences from the fact the defendant has been charged with a crime and is present in court and represented by an attorney. They must decide the case solely on evidence presented during the trial.
The U.S. Supreme Court upheld the Federal Bail Reform Act of 1984, allowing judicial discretion in assigning bail with intent to "prevent(ing) danger to the community." Prior to the 1984 reform, Constitutional assurances of right to bail applied only to non-capital charges, specifically addressing excessive bail and test of flight risk. The statute applies to federal court, allowing judges to deny bail and jail defendants if they determine, after a full hearing, that no conditions of release ''will reasonably assure . . . the safety of any other person and the community.''
State court bail decisions remain under regulation of a bail schedule.
NYS Criminal Procedure:
§ 510.10 Securing order; when required.
When a principal, whose future court attendance at a criminal action
or proceeding is or may be required, initially comes under the control
of a court, such court must, by a securing order, either release him on
his own recognizance, fix bail or commit him to the custody of the
sheriff. When a securing order is revoked or otherwise terminated in
the course of an uncompleted action or proceeding but the principal's
future court attendance still is or may be required and he is still
under the control of a court, a new securing order must be issued. When
the court revokes or otherwise terminates a securing order which
committed the principal to the custody of the sheriff, the court shall
give written notification to the sheriff of such revocation or
termination of the securing order.
§ 510.30 Application for recognizance or bail; rules of law and
criteria controlling determination.
1. Determinations of applications for recognizance or bail are not in
all cases discretionary but are subject to rules, prescribed in article
five hundred thirty and other provisions of law relating to specific
kinds of criminal actions and proceedings, providing (a) that in some
circumstances such an application must as a matter of law be granted,
(b) that in others it must as a matter of law be denied and the
principal committed to or retained in the custody of the sheriff, and
(c) that in others the granting or denial thereof is a matter of
judicial discretion.
2. To the extent that the issuance of an order of recognizance or
bail and the terms thereof are matters of discretion rather than of law,
an application is determined on the basis of the following factors and
criteria:
(a) With respect to any principal, the court must consider the kind
and degree of control or restriction that is necessary to secure his
court attendance when required. In determining that matter, the court
must, on the basis of available information, consider and take into
account:
(i) The principal's character, reputation, habits and mental
condition;
(ii) His employment and financial resources; and
(iii) His family ties and the length of his residence if any in the
community; and
(iv) His criminal record if any; and
(v) His record of previous adjudication as a juvenile delinquent, as
retained pursuant to section 354.2 of the family court act, or, of
pending cases where fingerprints are retained pursuant to section 306.1
of such act, or a youthful offender, if any; and
(vi) His previous record if any in responding to court appearances
when required or with respect to flight to avoid criminal prosecution;
and
(vii) If he is a defendant, the weight of the evidence against him in
the pending criminal action and any other factor indicating probability
or improbability of conviction; or, in the case of an application for
bail or recognizance pending appeal, the merit or lack of merit of the
appeal; and
(viii) If he is a defendant, the sentence which may be or has been
imposed upon conviction.
(b) Where the principal is a defendant-appellant in a pending appeal
from a judgment of conviction, the court must also consider the
likelihood of ultimate reversal of the judgment. A determination that
the appeal is palpably without merit alone justifies, but does not
require, a denial of the application, regardless of any determination
made with respect to the factors specified in paragraph (a).
3. When bail or recognizance is ordered, the court shall inform the
principal, if he is a defendant charged with the commission of a felony,
that the release is conditional and that the court may revoke the order
of release and commit the principal to the custody of the sheriff in
accordance with the provisions of subdivision two of section 530.60 of
this chapter if he commits a subsequent felony while at liberty upon
such order.
Actually, Howard, flight risk/seriousness of crime follows a counter-intuitive path. Statistically, those charged with lesser crimes (drug crimes, misdemeanors and larceny) have a higher rate of failing to appear than defendants charged with more severe crimes. Carrying greater weight is the involvement of a bondsman!
C. Non-Appearance
8. The overall rate of willful non-appearance in 1957 was 13.9%-10.5%
for felony cases; 11.0% for misdemeanors; and 23.6% for violations.
9. In general, rates of non-appearance did not increase with the seriousness
of the crime charged, and serious questions arise with respect to the practice of
permitting the crime charged to be the primary determinant of the condition of
release or amount of bail under a release system whose theoretical and legal
justification is the deterrence of flight.
10. Rates of non-appearance varied substantially according to the
condition of release. For those posting bond the rate was 4.4%; for those released
on recognizance l5.4 and for those posting cash bail l9.4%.
11. Among those posting cash bail and among those posting bond, rates of
non-appearance increased as the amount of bail increased, again raising questions
as to the efficacy of the present bail system as a deterrent to non-appearance.
12.. Among those released on recognizance, substantial variations in rates
of non-appearance were found based upon whether the defendant had been
recommended for release on recognizance by the Office of Probation (9.4%), not
recommended after investigation (19.3%), or not investigated at all (16.2%).
13 With the exception of defendants who post a bond and are thus under
the surveillance of a bail bondsman, there is virtually no pressure on a defendant
to appear in court, and there is a pervasive feeling throughout the court system,
entirely justified, that no legal sanction will follow from a failure to appear.
14. Most non-appearance were found to occur relatively early in the life of
a case and little evidence was found that court delay has contributed to the
problem of non-appearance. ---------BAIL AND PAROLE JUMPING IN MANHATTAN
IN 1967, S. Andrew Schaffer, August, 1970, Vera Institute of Justice, 377 Broadway
New York, N.Y. 10013
THE EFFECTIVENESS OF BAIL SYSTEMS:
AN ANALYSIS OF FAILURE TO APPEAR IN COURT
AND REARREST WHILE ON BAIL
JANUARY 1976 Stevens H. Clarke
Assistant Professor of Public Law and Government
Institute of Government
University of North Carolina at Chapel Hill
Jean L. Freeman
Research Assistant
Departmen t of Biostatl stics
School of Public Health
University of North Carolina at Chapel Hill
Gary G. Koch f Associate Professor of Blo tatistics
Department of Biostatistics
School of Public Health
University Of. North Carolina at Chapel Hili
You are implying that because I am a conservative, I am opposed to public safety. That makes 0 sense, and I am offended that you would take my statement so out of context.
As a conservative, I am pro law enforcement, pro justice, and pro constitutional rights. I do ALSO completely and unequivocally oppose a person accused of sexually abusing a 2 year old child being let free - no bail - and potentially commit this horrid act upon another child.
I also am opposed to a non-violent shoplifter being required to post bail, and the accused child abuser not - and I don't care if the shoplifter has 10 convictions for the same offense.
Common sense tells me that one is a much greater threat to society than the other.
And for that you degrade me. I resent that.
I took the oath you refer to knowing I would be sent to Southeast Asia. What the hell has that got to do with a likely threat to children being set free?
@Bob (and anybody who selected "No" or "No under certain circumstances") - the reason our Constitution is set up to protect individual rights is to keep those in power (or as noted by Howard "the State) from abusing that power against individuals. By saying "that person or those people do not deserve rights" you are going against the philosophy of the Founders.
And should you ever prevail in getting rights stripped from a class of people (child rapists, illegal immigrants, folks with blue eyes, etc), I hope you never piss anybody off in power - you might find that you suddenly belong in that class and have *your* rights stripped. Good luck then.
Bob, I in no way said you were opposed to public safety.
What I'm astounded at is that as a conservative you put society ahead of the individual. I've never heard a conservative say that and I can't imagine how any real conservative would say that.
I'm still waiting for an explanation on that one. You should re-read what I wrote because your previous comment addresses things I didn't say, and nor did I insult you -- unless you consider my being astounded at you taking what is a pretty standard socialist position insulting. That is shocking to me, but my being shocked isn't a stated or implied insult to you.
I mean, really, please explain how a conservative can defend putting society ahead of the individual? Individual rights mean nothing to you? I've never heard a conservative say such a thing.
The point of this question is entirely moot. The Constitution (and the Bill of Rights) were put into place FOR EXACTLY THIS REASON. Any U.S. citizen is granted the FULL PROTECTION of their Constitutional rights. Any citizen of this country is innocent unless (not until) proven guilty.
Howard, I respect you, but this is a truly stupid poll. The only thing it has shown is that 9.72% of the people that took this poll are totally ignorant about the basic tenants upon which this country is founded. And 26.3% are basically ignorant.
I actually felt my brain leaking out of my nose while reading this thread. I have taken one lesson away, though. The term "Conservative" is synonymous with the term "Moron". At least in Genesee County.
Sean, to echo Mark, the poll produced exactly what I expected it to produce -- some insight into the fact that there are people out there who don't care about the Constitution, and some discussion ... which I hope was educational for all who participated in it and read it, regardless of degree of agreement.
These polls are unscientific. The best polls are the ones that prompt conversation.
I am beginning to wonder if some judges understand why bail is set, I know a guy who was jailed on a dwi charge, not a felony, it was his first, and bail was set at $5k. Where is anyone going to get 5 grand at 3am on a Saturday morning? It was obvious the judge wanted this guy in jail until at least Monday. The guy had strong ties to the community, is a lifetime resident, and was a zero flight risk. Kinda blows away the discussion about how and why bail is set.
A suspected pedo let back on the streets without any bail, and a guy with a drinking problem jailed on 5k bail, REALLY!!!.
This thread has certainly prompted conversation. That's cool. My problem with the original question is that it's founded on crap. You might as well open a debate on whether water is wet or not. Or if air is good to breathe.
The absolute law of this country is our Constitution. This is a fact. It's not debatable. I don't care what political label anyone wears. Our Constitution protects all of us from a lack of due process. It doesn't matter who you are or what heinous crime you've been accused of. You are entitled to a fair trial. This is one of the main pillars of this great country.
I'm appalled that anyone could think differently. Anyone that does is a traitor to our country.
Years ago, I was pulled over by a Genesee County sheriff for having a headlight out. He asked me if he could search my truck. I had nothing to hide, but as a US citizen, I have the right to refuse an unreasonable search, so I did. He snorted, and said "So you're exercising your Constipational Rights?"
I got a ticket. And I have been disgusted ever since with the idea that our Constitution can be so flagrantly violated.
No matter what a person is suspected of, their Constitutional rights are inviolate, and I find anyone who disagrees to be moronic.
Howard, this statement is true for all political parties hench, why our government is so screwed up in the first places. Our government does not serve the AMERICAN PEOPLE, they served their own political agenda.
Bail is a joke at times. Remember, that illegal alien that killed that woman in Albion a few months back? He was arrested in Medina last summer and bail was originally set at 25k, then later dropped to 2500. Alledgely, the individual was able to pay 10% and released. I do not know why you are so shock about 5k bail for a DWI violation? Bail is not just for flight risk, it is used to finance law enforcement efforts in the event the individual does not show up for court and has a warrant issued for their arrest.
"I'm appalled that anyone could think differently. Anyone that does is a traitor to our country."
Like George W. Bush and all the members of Congress who supported the Patriot Act, for example?
We come across people all the time willing to give up other people's rights -- the First, Second and Fourth amendments often being the first to get trampled on. That's why the conversation is important.
Howard wrote:
"We come across people all the time willing to give up other people's rights -- the First, Second and Fourth amendments often being the first to get trampled on. That's why the conversation is important."
Absolutely, especially in here. I guess that is part of "the Constitution protects me but I don't want it protecting anyone else." mindset.
Sean, I must be a traitor and moronic, you may be entitled to a fair trial, that doesn't always mean you will get one. Money is the deciding factor, without it, you put yourself in the hands of the public defender, and there is a huge inequity between case load and funding for prosecutors vs public defender.
I can recall a case from family court, the defendent wanted a trial, so to make sure that didn't happen, the judge threatened to put the defendent in foster care, or juvie until a trial date could be set. The judge had workers from social services show up at one of the appearences, just a little coercion to make sure it went his way, sounds fair to me, NOT!!!!
So Frank, are you saying that you don't feel that we should all have inviolate Constitutional rights? I think you missed my point. I'm not saying we always get a fair trial, I'm saying we're all entitled to one. I didn't mean to insult you.
And Howard, you nailed it. Dead nuts. I think the list of the greatest traitors in human history goes something like this:
My bad Sean, gotta have my coffee in the am before I go trying to comprehend.
I missed your point earlier, and agree with your list.
Govt. keeps chipping away at our rights, and little by little, we lose rights because a certain group doesn't care about my rights, but cares only about what is good for that group.
How about we just treat everyone like human beings and not animals. If our Governments lawyers can't prove someones guiltiness with out violating simple rights that our citizens have then why even try them?
Edit: I thought this poll was only for illegals / non-citizens but my point still stands.
"And should you ever prevail in getting rights stripped from a class of people (child rapists, illegal immigrants, folks with blue eyes, etc), I hope you never piss anybody off in power - you might find that you suddenly belong in that class and have *your* rights stripped. Good luck then."
Best quote from this thread.
And Frank, I look forward to future intelligent debate.
Benedict Arnold......Sean with you making him part of a list of greatest traitors, you are truly showing ignorance. What do you know of his traitorus act. Do you know that without his fighting the British fleet on Lake Champlain we might have lost the Revolutionary war and we wouldnt have a Constitution?
If the criminal isn't a legal
If the criminal isn't a legal resident of this country, then NO!, Otherwise, of course they should. Stupid and vague question, Howard.
I would add that too many
I would add that too many times the victim's rights take second place to the (alleged) criminal's.
Howard, you obviously put this poll up because of all the comments about the (alleged) sexual assault of a two year old. I stand by my belief that if a judge takes into account the nature and severity of the crime, it in no way violates the (alleged) criminal's rights by requiring a VERY high bail. Society in general has every right to not have to worry that the (alleged) perpetrator is at large.
A kid gets caught with a joint. Release him to Genesee Justice. A shoplifter at Walmart? Release her to Genesee Justice.
Evidence of a violent and unfathomable of sexual abuse of a two year old????
Hold him til trial. Protect society. I have enough faith in our law enforcement agencies that there would not have been an arrest unless there is ample evidence that this horrible crime was committed by this horrible person. Let the courts settle it.
Bob, you never answered the
Bob, you never answered the question -- if you were the one accused (and let's presume you are actually innocent), how would you want it handled?
There's nothing vague about the question, Bruce. It's very specific.
John Adams (as of now),
John Adams (as of now), gratefully dead.
No, Howard is absolutely
No, Howard is absolutely correct, bail should be based on two things, 1) Flight risk. 2) Danger to self or community.
That is why in most cases murder suspects are denied bail, because of risk to self or community.
Most illegal aliens are denied bail because of flight risk.
Once you begin parsing rights because of emotional responses to particularly distasteful crimes, you begin to walk down the slipery slope that can find yourself in a situation. Many a times men have been falsely acused of sex crimes (Need I bring up Duke Lacross Case again)that turned out to false.
Once we forget innocent until proven guilty, we undermind all that is good about our justice system
Mark, you're actually
Mark, you're actually agreeing with Bob on the element of community risk.
And I disagree that murder suspects are denied bail based on danger to the community. If that were the case, Scott Doll would have been denied bail.
Scott was granted bail because he had strong ties to the community and wasn't a flight risk, even though he was facing a possible 25 years to life sentence (he got 15 years to life).
And that's where the severity of the crime comes into play -- the possible ramifications of the sentence can have a lot to do with how likely a person is to flee.
And if I remember correctly,
And if I remember correctly, Scott's bail was revoked as soon as he was convicted ... I know I remember correctly because that day he was accused of trying to sneak white powder into the jail.
Howard, of COURSE any person
Howard, of COURSE any person - innocent or guilty - wants to be released. Do you argue the point that the VAST majority of people arrested are guilty of their crimes? Especially felony arrests were great precautions are take before the arrest?
I stand by my previous point that the rights of society in general trumps the right of any individual. Are people wrongly accused? Absolutely - though rare, it does happen, and that is not right. I don't believe that can be avoided, unfortunately. And I believe there should be restitution of some type in those rare cases.
To me, there is no possible justification of releasing a person accused of a sexual act upon a child should be released without bail simply because it is a first offense and they have ties to the community.
Again, $250 bail for petit larceny (above) and no bail required for for the type of act we are discussing. I truly cannot get my mind around that.
You also failed to answer a question; what if it was YOUR child, and the accused lived in YOUR area?
Actually Howard I am not, a
Actually Howard I am not, a suspected serial killer would be very unlikely to be granted bail, 1st degree or planned murder suspects rarely get bail.
In the case of Scott Doll, If I remember correctly, the charge was second degree murder, I may be wrong.
There is now judicial disgretion, there always has been, I am quite certain that risk of self or community danger is a guidline for bail.
The recent child abuse case as an example, while we know the guy was charged, it is up to the prosecutor to recommend bail or remand to the judge, in which case the prosecutor must provide the judge sound legal reasoning at the arraignment, and the defense will counter with the argument of flight risk and /or risk of harm to community then the judge decides based on the facts presented.
Not all murder suspects are a risk to the community at large, that is why there are different degrees of murder by statue in the first place.
I think Bob is only partially correct, not totally, it is not for a mob to decide when bail is appropriate, it is for the judge based on sound legal argument
"I stand by my previous point
"I stand by my previous point that the rights of society in general trumps the right of any individual."
Wow, what an astounding statement for a self-proclaimed conservative to make. That's the very basis of socialism and progressive political philosophy. Next you'll be arguing for socialized medicine, higher taxes on the rich, and more social services for the poor (all programs that favor the society over the individual).
The rights of society over the individual. Wow. I don't see how anybody who considers himself a conservative can say something that followed to its logical conclusion leads down the path to dictatorship.
The Constitution, especially the Bill of Rights, is all about protecting the individual against the State (society). I thought you respected the Constitution? Now you admit to trampling on it. Wow.
When I entered the US military, I took an oath to protect and defend the United States Constitution. It's an oath I took seriously then and an oath i took seriously now.
Oh, I forgot, the modern
Oh, I forgot, the modern conservative only cares about the Constitution when it suits their political aims. When it gets in the way of their own agenda, they're ready to feed it to the document shredder.
Hey Bruce, maybe you SHOULD
Hey Bruce, maybe you SHOULD read the constitution before you comment on it. I dislike illegal aliens as much as anyone else, especially when they commit criminal acts. However here is section 1 of the 14th amendment in the Bill Of Rights...
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
If you notice it does specifically define what a citizen is, also specifically states that any law that abridges the privelidges or immunities of said citizens.
BUT IN THE 15 WORDS specifically states that ANY PERSON (NOT CITIZENS ONLY) within any state in the United States shall not be denied equal protection under the laws, due process under the law nor even be deprived of life liberty or property.....
So even if not a citizen naturalized or otherwise you still have rights granted under this Constitution.
Mark, the way you put it
Mark, the way you put it makes sense ... and while I've sat in dozens of bail review hearings, it's still a small sample size. There may be exceptions I've never witnessed. I've yet to hear a prosecutor argue for a higher bail based on perceived risk to the community. Nor have I heard a judge proclaim that as a reason, or not, for setting a particular bail. It's always been about perceived flight risk. The possible sentence, ties to the community, previous convictions, previous interactions with the judicial system (showing up for court, not violating probation or supervised release, etc.)
Also, murder 1 would certainly be a higher flight risk than murder 2; also, a serial killer would likely present a high risk of flight for all sorts of reasons that have nothing to do with perceived danger to the community.
Bob, I am stunned, the rights
Bob, I am stunned, the rights of society vs individual rights?
The differnce between our system and communism is "The Right Of The Individual!"
It is NOT our opinion that matters here, it is what is appropriate under the LAW
Our very fiber as a nation is based on Individual Liberty, and the PROTECTION OF OUR INDIVIDUAL RIGHTS
I stand by my arguement, there are times when a Judge can deny bail based on community danger, but for he/she to apply that needs to be based on sound legal arguement, NOT community fears and opinions.
In most cases, the public at large does not know all the legal points and supporting evidence at arraignment, we usually do not know all the facts until after the trial
I am certain Howard that the
I am certain Howard that the criteria exist, I am also certain that it is only applied under extreme cirrcumstances.
I believe you are absolutely correct in that flight risk is the overwhelming factor,
Dead on, Howard.
Dead on, Howard.
Actually Bob the burden of
Actually Bob the burden of proof is indeed upon you, if you make up a story that is in any way accusatory of anyone it is not generally considered valid without you providing the "proof" of your claims and is dismissed. Its been that way for about 2000 years in civilized society.
Roman law: The sixth century Digest of Justinian (22.3.2) provides, as a general rule of evidence: Ei incumbit probatio qui dicit, non qui negat[1] — "Proof lies on him who asserts, not on him who denies".[2] It is there attributed to the second and third century jurist Paul. When this rule is applied to criminal process (whether or not that was done in Roman law itself), it places the burden of proof upon the accuser, which has the corollary that the accused is presumed to be innocent.
[edit] Common law: In sources from common law jurisdictions, the expression appears in an extended version, in its original form and then in a shortened form (and in each case the translation provided varies). As extended, it is: Ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum negantis probatio nulla sit — "The proof lies upon him who affirms, not upon him who denies; since, by the nature of things, he who denies a fact cannot produce any proof."[3] As found in its original form, it is (as above): Ei incumbit probatio qui dicit, non qui negat — "The proof lies upon the one who affirms, not the one who denies." [4][5] Then, shortened from the original, it is: Ei incumbit probatio qui — "the onus of proving a fact rests upon the man".[6]
"Presumption of innocence" serves to emphasize that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt (or some other level of proof depending on the criminal justice system) and that the accused bears no burden of proof.[14] This is often expressed in the phrase innocent until proven guilty, coined by the English lawyer Sir William Garrow (1760–1840).[15] Garrow insisted that accusers be robustly tested in court. An objective observer in the position of the juror must reasonably conclude that the defendant almost certainly committed the crime.[16]
The presumption of innocence is in fact a legal instrument created by the French cardinal and jurist Jean Lemoine to favor the accused based on the legal inference that most people are not criminals.[17] It is literally considered favorable evidence for the accused that automatically attaches at trial.[18] It requires that the trier of fact, be it a juror or judge, begin with the presumption that the state is unable to support its assertion.[17] To ensure this legal protection is maintained a set of three related rules govern the procedure of criminal trials. The presumption means:[14]
1.With respect to the critical facts of the case - whether the crime charged was committed and whether the defendant was the person who committed the crime - the state has the entire burden of proof.
2.With respect to the critical facts of the case, the defendant does not have any burden of proof whatsoever. The defendant does not have to testify, call witnesses or present any other evidence, and if the defendant elects not to testify or present evidence, this decision cannot be used against them.
3.The jury or judge is not to draw any negative inferences from the fact the defendant has been charged with a crime and is present in court and represented by an attorney. They must decide the case solely on evidence presented during the trial.
Sorry posted on wrong comment thread
The U.S. Supreme Court upheld
The U.S. Supreme Court upheld the Federal Bail Reform Act of 1984, allowing judicial discretion in assigning bail with intent to "prevent(ing) danger to the community." Prior to the 1984 reform, Constitutional assurances of right to bail applied only to non-capital charges, specifically addressing excessive bail and test of flight risk. The statute applies to federal court, allowing judges to deny bail and jail defendants if they determine, after a full hearing, that no conditions of release ''will reasonably assure . . . the safety of any other person and the community.''
State court bail decisions remain under regulation of a bail schedule.
NYS Criminal Procedure:
§ 510.10 Securing order; when required.
When a principal, whose future court attendance at a criminal action
or proceeding is or may be required, initially comes under the control
of a court, such court must, by a securing order, either release him on
his own recognizance, fix bail or commit him to the custody of the
sheriff. When a securing order is revoked or otherwise terminated in
the course of an uncompleted action or proceeding but the principal's
future court attendance still is or may be required and he is still
under the control of a court, a new securing order must be issued. When
the court revokes or otherwise terminates a securing order which
committed the principal to the custody of the sheriff, the court shall
give written notification to the sheriff of such revocation or
termination of the securing order.
§ 510.30 Application for recognizance or bail; rules of law and
criteria controlling determination.
1. Determinations of applications for recognizance or bail are not in
all cases discretionary but are subject to rules, prescribed in article
five hundred thirty and other provisions of law relating to specific
kinds of criminal actions and proceedings, providing (a) that in some
circumstances such an application must as a matter of law be granted,
(b) that in others it must as a matter of law be denied and the
principal committed to or retained in the custody of the sheriff, and
(c) that in others the granting or denial thereof is a matter of
judicial discretion.
2. To the extent that the issuance of an order of recognizance or
bail and the terms thereof are matters of discretion rather than of law,
an application is determined on the basis of the following factors and
criteria:
(a) With respect to any principal, the court must consider the kind
and degree of control or restriction that is necessary to secure his
court attendance when required. In determining that matter, the court
must, on the basis of available information, consider and take into
account:
(i) The principal's character, reputation, habits and mental
condition;
(ii) His employment and financial resources; and
(iii) His family ties and the length of his residence if any in the
community; and
(iv) His criminal record if any; and
(v) His record of previous adjudication as a juvenile delinquent, as
retained pursuant to section 354.2 of the family court act, or, of
pending cases where fingerprints are retained pursuant to section 306.1
of such act, or a youthful offender, if any; and
(vi) His previous record if any in responding to court appearances
when required or with respect to flight to avoid criminal prosecution;
and
(vii) If he is a defendant, the weight of the evidence against him in
the pending criminal action and any other factor indicating probability
or improbability of conviction; or, in the case of an application for
bail or recognizance pending appeal, the merit or lack of merit of the
appeal; and
(viii) If he is a defendant, the sentence which may be or has been
imposed upon conviction.
(b) Where the principal is a defendant-appellant in a pending appeal
from a judgment of conviction, the court must also consider the
likelihood of ultimate reversal of the judgment. A determination that
the appeal is palpably without merit alone justifies, but does not
require, a denial of the application, regardless of any determination
made with respect to the factors specified in paragraph (a).
3. When bail or recognizance is ordered, the court shall inform the
principal, if he is a defendant charged with the commission of a felony,
that the release is conditional and that the court may revoke the order
of release and commit the principal to the custody of the sheriff in
accordance with the provisions of subdivision two of section 530.60 of
this chapter if he commits a subsequent felony while at liberty upon
such order.
Actually, Howard, flight
Actually, Howard, flight risk/seriousness of crime follows a counter-intuitive path. Statistically, those charged with lesser crimes (drug crimes, misdemeanors and larceny) have a higher rate of failing to appear than defendants charged with more severe crimes. Carrying greater weight is the involvement of a bondsman!
C. Non-Appearance
8. The overall rate of willful non-appearance in 1957 was 13.9%-10.5%
for felony cases; 11.0% for misdemeanors; and 23.6% for violations.
9. In general, rates of non-appearance did not increase with the seriousness
of the crime charged, and serious questions arise with respect to the practice of
permitting the crime charged to be the primary determinant of the condition of
release or amount of bail under a release system whose theoretical and legal
justification is the deterrence of flight.
10. Rates of non-appearance varied substantially according to the
condition of release. For those posting bond the rate was 4.4%; for those released
on recognizance l5.4 and for those posting cash bail l9.4%.
11. Among those posting cash bail and among those posting bond, rates of
non-appearance increased as the amount of bail increased, again raising questions
as to the efficacy of the present bail system as a deterrent to non-appearance.
12.. Among those released on recognizance, substantial variations in rates
of non-appearance were found based upon whether the defendant had been
recommended for release on recognizance by the Office of Probation (9.4%), not
recommended after investigation (19.3%), or not investigated at all (16.2%).
13 With the exception of defendants who post a bond and are thus under
the surveillance of a bail bondsman, there is virtually no pressure on a defendant
to appear in court, and there is a pervasive feeling throughout the court system,
entirely justified, that no legal sanction will follow from a failure to appear.
14. Most non-appearance were found to occur relatively early in the life of
a case and little evidence was found that court delay has contributed to the
problem of non-appearance. ---------BAIL AND PAROLE JUMPING IN MANHATTAN
IN 1967, S. Andrew Schaffer, August, 1970, Vera Institute of Justice, 377 Broadway
New York, N.Y. 10013
Non-appearance/re-arrest statistics by offense:
Offense
Felony-Persons 4.4%
Felony-Property 8.7%
Felony-Vice 8.2%
Misd.-Persons 28.0%
Misd.-Property 23.5%
Misd.-Vice 11.0%
Misd.-Family 10.2%
Misd.-Other 6.0%
THE EFFECTIVENESS OF BAIL SYSTEMS:
AN ANALYSIS OF FAILURE TO APPEAR IN COURT
AND REARREST WHILE ON BAIL
JANUARY 1976 Stevens H. Clarke
Assistant Professor of Public Law and Government
Institute of Government
University of North Carolina at Chapel Hill
Jean L. Freeman
Research Assistant
Departmen t of Biostatl stics
School of Public Health
University of North Carolina at Chapel Hill
Gary G. Koch f Associate Professor of Blo tatistics
Department of Biostatistics
School of Public Health
University Of. North Carolina at Chapel Hili
That's a bunch of crap
That's a bunch of crap Howard.
You are implying that because I am a conservative, I am opposed to public safety. That makes 0 sense, and I am offended that you would take my statement so out of context.
As a conservative, I am pro law enforcement, pro justice, and pro constitutional rights. I do ALSO completely and unequivocally oppose a person accused of sexually abusing a 2 year old child being let free - no bail - and potentially commit this horrid act upon another child.
I also am opposed to a non-violent shoplifter being required to post bail, and the accused child abuser not - and I don't care if the shoplifter has 10 convictions for the same offense.
Common sense tells me that one is a much greater threat to society than the other.
And for that you degrade me. I resent that.
I took the oath you refer to knowing I would be sent to Southeast Asia. What the hell has that got to do with a likely threat to children being set free?
@Bob (and anybody who
@Bob (and anybody who selected "No" or "No under certain circumstances") - the reason our Constitution is set up to protect individual rights is to keep those in power (or as noted by Howard "the State) from abusing that power against individuals. By saying "that person or those people do not deserve rights" you are going against the philosophy of the Founders.
And should you ever prevail in getting rights stripped from a class of people (child rapists, illegal immigrants, folks with blue eyes, etc), I hope you never piss anybody off in power - you might find that you suddenly belong in that class and have *your* rights stripped. Good luck then.
Bob, I in no way said you
Bob, I in no way said you were opposed to public safety.
What I'm astounded at is that as a conservative you put society ahead of the individual. I've never heard a conservative say that and I can't imagine how any real conservative would say that.
I'm still waiting for an explanation on that one. You should re-read what I wrote because your previous comment addresses things I didn't say, and nor did I insult you -- unless you consider my being astounded at you taking what is a pretty standard socialist position insulting. That is shocking to me, but my being shocked isn't a stated or implied insult to you.
I mean, really, please explain how a conservative can defend putting society ahead of the individual? Individual rights mean nothing to you? I've never heard a conservative say such a thing.
Came across this today. How
Came across this today. How about being the victim and being jailed to ensure your testimony.
http://abcnews.go.com/blogs/headlines/2012/04/alleged-rape-victim-jaile…
The point of this question is
The point of this question is entirely moot. The Constitution (and the Bill of Rights) were put into place FOR EXACTLY THIS REASON. Any U.S. citizen is granted the FULL PROTECTION of their Constitutional rights. Any citizen of this country is innocent unless (not until) proven guilty.
Howard, I respect you, but this is a truly stupid poll. The only thing it has shown is that 9.72% of the people that took this poll are totally ignorant about the basic tenants upon which this country is founded. And 26.3% are basically ignorant.
I actually felt my brain leaking out of my nose while reading this thread. I have taken one lesson away, though. The term "Conservative" is synonymous with the term "Moron". At least in Genesee County.
Sean, True conservatives
Sean, True conservatives would have voted yes, like I did.
However, your ignorant/totally ignorant statementt is most valid when applied to the question.
However, the poll was not stupid, it was provocative at the least, and eye opening for certain.
Sean, to echo Mark, the poll
Sean, to echo Mark, the poll produced exactly what I expected it to produce -- some insight into the fact that there are people out there who don't care about the Constitution, and some discussion ... which I hope was educational for all who participated in it and read it, regardless of degree of agreement.
These polls are unscientific. The best polls are the ones that prompt conversation.
I am beginning to wonder if
I am beginning to wonder if some judges understand why bail is set, I know a guy who was jailed on a dwi charge, not a felony, it was his first, and bail was set at $5k. Where is anyone going to get 5 grand at 3am on a Saturday morning? It was obvious the judge wanted this guy in jail until at least Monday. The guy had strong ties to the community, is a lifetime resident, and was a zero flight risk. Kinda blows away the discussion about how and why bail is set.
A suspected pedo let back on the streets without any bail, and a guy with a drinking problem jailed on 5k bail, REALLY!!!.
This thread has certainly
This thread has certainly prompted conversation. That's cool. My problem with the original question is that it's founded on crap. You might as well open a debate on whether water is wet or not. Or if air is good to breathe.
The absolute law of this country is our Constitution. This is a fact. It's not debatable. I don't care what political label anyone wears. Our Constitution protects all of us from a lack of due process. It doesn't matter who you are or what heinous crime you've been accused of. You are entitled to a fair trial. This is one of the main pillars of this great country.
I'm appalled that anyone could think differently. Anyone that does is a traitor to our country.
Years ago, I was pulled over by a Genesee County sheriff for having a headlight out. He asked me if he could search my truck. I had nothing to hide, but as a US citizen, I have the right to refuse an unreasonable search, so I did. He snorted, and said "So you're exercising your Constipational Rights?"
I got a ticket. And I have been disgusted ever since with the idea that our Constitution can be so flagrantly violated.
No matter what a person is suspected of, their Constitutional rights are inviolate, and I find anyone who disagrees to be moronic.
Howard, this statement is
Howard, this statement is true for all political parties hench, why our government is so screwed up in the first places. Our government does not serve the AMERICAN PEOPLE, they served their own political agenda.
Bail is a joke at times.
Bail is a joke at times. Remember, that illegal alien that killed that woman in Albion a few months back? He was arrested in Medina last summer and bail was originally set at 25k, then later dropped to 2500. Alledgely, the individual was able to pay 10% and released. I do not know why you are so shock about 5k bail for a DWI violation? Bail is not just for flight risk, it is used to finance law enforcement efforts in the event the individual does not show up for court and has a warrant issued for their arrest.
"I'm appalled that anyone
"I'm appalled that anyone could think differently. Anyone that does is a traitor to our country."
Like George W. Bush and all the members of Congress who supported the Patriot Act, for example?
We come across people all the time willing to give up other people's rights -- the First, Second and Fourth amendments often being the first to get trampled on. That's why the conversation is important.
Howard wrote: "We come across
Howard wrote:
"We come across people all the time willing to give up other people's rights -- the First, Second and Fourth amendments often being the first to get trampled on. That's why the conversation is important."
Absolutely, especially in here. I guess that is part of "the Constitution protects me but I don't want it protecting anyone else." mindset.
Sean, I must be a traitor and
Sean, I must be a traitor and moronic, you may be entitled to a fair trial, that doesn't always mean you will get one. Money is the deciding factor, without it, you put yourself in the hands of the public defender, and there is a huge inequity between case load and funding for prosecutors vs public defender.
I can recall a case from family court, the defendent wanted a trial, so to make sure that didn't happen, the judge threatened to put the defendent in foster care, or juvie until a trial date could be set. The judge had workers from social services show up at one of the appearences, just a little coercion to make sure it went his way, sounds fair to me, NOT!!!!
So Frank, are you saying that
So Frank, are you saying that you don't feel that we should all have inviolate Constitutional rights? I think you missed my point. I'm not saying we always get a fair trial, I'm saying we're all entitled to one. I didn't mean to insult you.
And Howard, you nailed it. Dead nuts. I think the list of the greatest traitors in human history goes something like this:
Judas
Brutus
Arnold
W. Bush
My bad Sean, gotta have my
My bad Sean, gotta have my coffee in the am before I go trying to comprehend.
I missed your point earlier, and agree with your list.
Govt. keeps chipping away at our rights, and little by little, we lose rights because a certain group doesn't care about my rights, but cares only about what is good for that group.
How about we just treat
How about we just treat everyone like human beings and not animals. If our Governments lawyers can't prove someones guiltiness with out violating simple rights that our citizens have then why even try them?
Edit: I thought this poll was only for illegals / non-citizens but my point still stands.
"And should you ever prevail
"And should you ever prevail in getting rights stripped from a class of people (child rapists, illegal immigrants, folks with blue eyes, etc), I hope you never piss anybody off in power - you might find that you suddenly belong in that class and have *your* rights stripped. Good luck then."
Best quote from this thread.
And Frank, I look forward to future intelligent debate.
And I'm done commenting here.
Benedict Arnold......Sean
Benedict Arnold......Sean with you making him part of a list of greatest traitors, you are truly showing ignorance. What do you know of his traitorus act. Do you know that without his fighting the British fleet on Lake Champlain we might have lost the Revolutionary war and we wouldnt have a Constitution?