In the United States, one phrase pops up more than any other when talking about the criminal justice system: “Defendants are innocent until proven guilty.” Unfortunately, this is far from true. Defendants are subject to many restrictions and burdens before they are ever brought to trial or even convicted. The most nefarious of these is bail.

For those that aren’t familiar with the criminal process, here’s a primer: Once the police have performed an investigation and determined that a crime has occurred, they turn the case over to the prosecutor’s office. In many cases, the defendant is arrested during the course of an investigation (such as with a DUI), processed and released until the prosecutor decides to file charges. Upon the filing of charges, a notice is issued to the defendant and they must appear to be arraigned. This arraignment represents the official start of criminal court proceedings for the defendant.

At the arraignment, the defendant, ideally with the aid of a criminal defense attorney, will plead not guilty. The court will then determine what to do with the defendant until trial. They can release the defendant on their own recognizance (PR) subject to certain conditions, or they can remand the defendant into custody unless they can post a sufficient bail.

In determining what to do, the court is to consider the defendant’s risk of flight, and the risk the defendant poses to society. Often, however, the court merely looks at the severity of the crime, and sets bail in accordance. This often results in bails that are astronomically high on defendants who pose no threat of flight. And, as most defendants and their families make use of bail bondsmen, they must pay 10% of that bail. Thus a defendant who is charged with assault may be held on $50,000 bail, and his family forced to pay $5000. It doesn’t matter if he’s innocent or guilty; merely being charged with a crime will trigger these costs and penalties.

More and more judges seem to require high bails in order to appear “tough on crime.” We need more good criminal defense attorneys who are willing to stand up on this issue to make sure that the accused are not unfairly punished prior to actually found guilty.