Moby's Photo - Flickr Creative Commons
Moby’s Photo – Flickr Creative Commons

It’s a scene I have witnessed hundreds, if not thousands, of times. At a first appearance hearing, a magistrate judge calls the calendar as twenty or so inmates in orange or green jumpsuits are brought out chained to one another. The look on their faces is one of shock or of last night’s drugs or alcohol. The judge reads out a list of basic rights and criminal charges. The group is then taken back to a holding cell. Some will get bond immediately. Others will remain in jail another week or more for a lawyer to be assigned or retained. Generally, if I am on the case at the first appearance stage, I am the only retained lawyer in the room. Most lawyers are not retained yet at this stage. The arrest came unexpectedly and there wasn’t time to get the lawyer arranged yet. If I’m retained before first appearance it is because I was retained when my client learned that he was the target of a criminal investigation or because I was reached late the afternoon or night before. Invariably, I will have some ducks in a row, which means that I will likely get a better bond than the folks in jumpsuits who stand before the judge alone trying to fend for themselves. Those who don’t get a bond or for whom bond is set in an unattainable amount may be stuck with what happens to them. Weeks down the road, the Superior Court judge will be reluctant to second guess what the earlier judge did, even if the earlier judge didn’t have the benefit of a thorough presentation.

In a post titled “Bail me out, bro,” A Public Defender discusses a report from The Constitution Project. The findings confirm what I have witnessed from an anecdotal perspective my entire career. As reported by A Public Defender, “very few people have the benefit of counsel, which leads to high bail amounts, greater incarceration and increased numbers of people pleading guilty simply to get out of jail.”

Though not discussed in the blog post, the problems likely do not end there. Often, the defendant who takes a plea just to get out of jail sets himself up for failure by taking on sentencing conditions that he is not prepared to meet (for instance, the addict who signs up for random urine tests or the homeless person who now must register as a sex offender).

Bond hearings are tricky and can be complicated. The lawyer who appears for a bond hearing needs to know things like the amount of equity in a home (and we are coming out of a period of history where equity is at an all time low), the number of character witnesses who can vouch for the defendant, or enough about the defendant’s background to demonstrate that she has sufficient ties to the community not to pose a significant flight risk. Sometimes the smart thing to do is advise the client to remain locked up a few more days so that a defense can be presented at the bond hearing. On complicated or serious cases, a bond hearing can be every bit as tricky as a suppression hearing or pretrial motion in limine.

Bond has a trickle-down effect to other portions of the case.

  • It is easier to defend a client on bond. The client can come to the office to review discovery without the risk of a potential snitch reading it in prison.
  • Trial preparation is smoother with a bonded client. The client is free to come to the office to meet with counsel and prepare for testimony.
  • A client on bond can get mental health or addiction treatment in a way that a client in jail cannot.
  • A client on bond can maintain contact with family and can continue to work, while an incarcerated client may have his life literally fall apart while in jail awaiting trial.

Access to counsel at a bond hearing is every bit as important as having a lawyer at trial and at sentencing. The fact that representation by counsel at bond is an exception rather than the rule is disturbing. When a client loses a bond hearing, he is likely to lose other critical components of his case as the matter unfolds.

Last week, I closed out an armed robbery case quite successfully. The case was reduced down to robbery, the client was sentenced under Georgia’s First Offender Act (meaning that he has the opportunity to come out of this with no conviction on his record), and after completing a one-year residential program, he is on probation. There were a number of things that made this outcome possible, but one factor stands out. The client never bonded out. He was arrested ten months ago, and we never even sought a bond.

Things got tough along the way. The client implored his family to seek a bond for him, and the pressure on them was difficult. Things got particularly difficult during the holiday season. But we never petitioned the court for a bond. And, by the time 10 months passed and this case was at its “resolution point” in court, we had 10 months served under our belt. The client, a very young man, had suffered some consequences, and he had seen some things. He had seen folks get released only to return back to jail. He saw enough of the inside to wake him up but not enough to embitter him. He and his family would likely tell you that he did more than 10 months of growing up in the last 10 months.

Our plea was non-negotiated, and when the judge pronounced sentence, he told my client that he likely would never have agreed to my recommendation had he not served a great deal of time already. The family’s decision regarding bond reflected well on them. Judges are often more willing to take a chance on a person when they know that the family can provide structure upon release. And their decision to leave the client in jail during the pretrial months reflected well on their ability to provide structure once this young man was out on probation.

When I became the lawyer 10 months ago, I advised my client not to seek a bond, and I told the family to try their best to resist when the asking got tough. And I had to remind them of these things a few times throughout the year. But when I made the strategic decision not to seek a bond a year ago, I imagined that things might come together like this by the time we resolved the case. The decision paid out.

Please don’t hear me to say that it is usually a good idea to leave a loved one in jail. Rather, I share this story with you to let you know that there may arise a case, from time to time, where bonding a person out is not the best thing for the client. All cases are, of course, different, and whether to make bond is one of those decisions best thought through with your lawyer. But here are some things to think about when it comes to deciding whether to post a loved one’s bond.

Are people counting on the loved one for support?

Obviously, if a client is the provider for a family, it is likely better for the client to fulfill his duties to those she loves. If a prolonged pre-trial incarceration will make others suffer or result in lost employment, then by all means incarceration for any length of time is not the best idea. But for a youthful defendant without such responsibilities, particularly if the defendant is on a road to increasing criminality, some extra days of pre-trial incarceration can help the client “get it” and may take him away from friends, from drugs and alcohol, and other opportunities to get in worse trouble.

Is the case beatable, or will a conviction inevitably mean probation?

If the case is defensible, is likely to be reduced, or will likely result in probation, then it makes little sense to prolong pre-trial incarceration. However, if the case is one of those that will be plead one day, if there is minimum incarceration involved, and if a judge will likely believe that the client should do some time eventually, it can make sense to remain in jail and not make a bond. There are a couple of harsh things about incarceration and how it works on the human psyche.

  • We can get accustomed to just about anything in short order. But it can be torture to dread something. Everytime I go to a swimming pool, I look like a big wuss. I hate jumping into water that feels the least bit cold. But once I’m in, I’m fine. The dread of the cold is much worse than the cold itself. Once a person is in jail, it sucks, but it’s a level of suckiness that can be tolerated for a few days. And as bad as it is to spend another day there, there is one thing worse — to leave there and think about coming back. That dread can lead to irrational decisions and disastrous no-win trials.
  • The devil you know. People generally prefer to do time in their home town over going through diagnostics and doing time in the prison system. So, doing time on the front end can be preferable. Of course, this advice is not intended as one size fits all. If you live in Mayberry where Aunt Bee is preparing biscuits for the inmates, you’d probably prefer to do your time there. If you just got arrested in Fulton County, then you may prefer to do your time on the back end of the sentence or in one of those places you see featured in the show Locked Up, Abroad.

Think about what your bargaining chips are

Defense counsel gets to bargain with two kinds of chips. First, you can bargain over likely outcomes of a hypothetical trial. Part of your job as defense counsel in a negotiation is to portray trial as a losing proposition for your opponents. Obviously, you do that through your giftedness with the English language, your ability to perceive weaknesses in your opponent’s case, and your ability to strengthen your own. The risker the bet trial becomes for you opponent, the more likely you are to work this all out with minimal damage.

The other bargaining chips consist in debating the seriousness of the conduct, the relative goodness of your client, and the number of people who can say that he will never do this sort of things again. When you are talking about things like this, you are really bargaining about what the case is worth. In a civil case, “worth” is measured in terms of dollars. In the criminal context, “worth” is measured in terms of punishment. And, it can be very powerful to tell a prosecutor or a judge that he’s been punished already. So, being able to take on a sentence pre-trial, may give you greater bargaining power when others try to demand that your client go to jail. There’s no better argument than “he’s already been there, and he never asked to come out until now.” In money parlance, a few months in a county jail can be a very good “investment” that minimizes your client’s net sentence.

Again, I am not claiming that most people should remain incarcerated pretrial. Rather, I want to suggest that the question of whether to make bond can sometimes be more nuanced than it might appear.