Let Freedom Ring

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

We give up our freedoms so easily.

It is commonplace for people accused of crimes to have their professional and personal lives disrupted — and sometimes radically altered — by having a judge order “conditions of pre-trial release,” long before the first witness is ever called at trial.

By mere accusation, you may be ordered to random, sometimes daily, alcohol testing. You may be ordered into drug treatment. You may be required to permit a psychiatrist to invade your most private mental spaces.

You may be told you can’t go out after dark. That you can’t participate in ordinary and otherwise legal activities. That you can’t go hunting, or keep a firearm for protection, until this matter is all cleared up. Or that you can’t leave your home without saying, mother may I, every single time.

Judges and prosecutors consider this fair, because they let you make the choice: do this, or spend the days and nights, leading up to your Constitutionally guaranteed speedy trial (months, maybe years down the line), in jail.

Show evidence of violating any of these conditions and you can be jailed because, after all, you agreed to this. It’s your own damn fault.

The theoretical purpose of pre-trial conditions and detention is the same as that of bail (paying money to secure your temporary freedom): to ensure that you appear in court, and to protect the community.

In the worst-case scenario — the worst case being that we’ve actually apprehended a monster here — we’ve indeed protected the community and, after a righteous conviction, given him or her a home away from other people’s homes.

But frequently enough what happens in reality is that we’ve made an innocent person’s life miserable for months and even years, and in the process they may have lost a job, a relationship, the respect of their friends, and the adoration of their children. The community was never in danger from these innocent people. And what brought them to court wasn’t the fact that we had them pee in a cup every day, but that they wanted to clear their names.

How do we know they are innocent? Because the presumption of innocence they should have had from the day of arrest was validated by a not guilty verdict in court, or the decision of a prosecutor to dismiss the case. They are entitled to that presumption before, during, and now after.

As usual, it was a divided Supreme Court that allows people to be disadvantaged in this way before a single thing is proved against them. The case, U.S. v. Salerno, 481 U.S. 739 (1987), brought this ringing dissent from a Justice who knew something about disadvantaged people, Thurgood Marshall:

This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution. Today a majority of this Court holds otherwise. Its decision disregards basic principles of justice established centuries ago and enshrined beyond the reach of governmental interference in the Bill of Rights.

The same holds for onerous conditions of pre-trial release. They are an abomination to Justice.

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