united-states criminal-law criminal-procedure bail detention
&quot;Innocent until proven guilty&quot; doesn&#39;t apply to bail?
<p>How does the law reconcile the &quot;innocent until proven guilty&quot; principle with the treatment of those awaiting trial on criminal charges?</p>
<p>At least in the U.S., it seems like there is a meta-criminal-justice system in which merely being accused of a crime is enough to land a person in prison.</p>
<p>An illustration of this is the case of Michael Avenatti: While he was out on bail awaiting trial, prosecutors accused him of committing additional crimes (while on bail).  <a href="https://www.latimes.com/california/story/2020-01-15/michael-avenatti-arrested-new-fraud-allegations" rel="noreferrer">The judge agreed with the prosecutors and revoked his bail</a>:</p>
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<p>At the end of the court hearing, Judge Selna said he agreed with prosecutors that Avenatti’s handling of the $1 million was probably illegal. He said he also agreed that Avenatti posed an economic danger to the public if he remained free on bail, because he was likely to keep committing crimes.  “I believe that the danger to the community is real and palpable,” Selna said.</p>
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<p>I understand that the bail system is discretionary, but AFAIK the legitimate purpose of imprisonment awaiting trial is to ensure that the accused appears for trial.  Here we have an example in which a person's freedom awaiting trial was curtailed based only on an accusation of illegal behavior, not based on a legal conviction for committing a crime.</p>

<p>The concept of &quot;innocent until proven guilty&quot; is inherent in our constitutional protections for due process.</p>
<p>As far as I know, the Supreme Court first formally recognized it as a rule in <a href="https://casetext.com/case/coffin-v-united-states-2" rel="noreferrer"><em>Coffin v. United States</em>, 156 U.S. 432, 458-59 (1895)</a>:</p>
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<p>Now the presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven to be guilty. In other words, this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created.</p>
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<p>The key phrase -- for purposes of your question -- is &quot;sufficient evidence.&quot; At a criminal trial, sufficient evidence consists of proof beyond a reasonable doubt on “all the essential elements of guilt” <a href="https://casetext.com/case/in-the-matter-of-samuel-winship-appellant" rel="noreferrer"><em>In re Winship</em>, 397 U.S. 358, 361 (1970)</a>.</p>
<p>But if the government wants to lock up a defendant pending trial, the question is not whether the defendant is guilty of the charged crime, but rather whether he poses a danger to the community and can be trusted to appear for trial. <a href="https://www.law.cornell.edu/uscode/text/18/3142" rel="noreferrer">18 U.S. Code § 3142(e)(1)</a>. And on those questions, he retains the presumption of innocence, but the government's burden of proof when arguing otherwise is substantially lower. The courts recognize both the potential of fleeing from the court and the prevention of additional crimes as legitimate bases for pretrial detention.</p>
<p>In cases like Avenatti's, where the government is seeking pretrial detention because the defendant is a danger to the community, it needs to prove by clear and convincing evidence &quot;that no condition or combination of conditions will reasonably assure the safety of any other person and the community.&quot; <a href="https://www.law.cornell.edu/uscode/text/18/3142" rel="noreferrer">18 U.S. Code § 3142(f)(2)</a>.</p>
<p>However, if the government is seeking to hold the defendant because it does not believe he will appear for trial, it need only prove its case on that question by a preponderance of the evidence. <a href="https://casetext.com/case/united-states-v-martir#p1146" rel="noreferrer"><em>United States v. Martir</em>, 782 F.2d 1141, 1146 (2d Cir. 1986)</a> (“For detention to be proper, the government had to prove by a preponderance of the evidence that no conditions of release would reasonably assure Martir's attendance at trial.”).</p>
<p>As a side note, I'd agree with some of the answers that <em>in practice</em>, the bond system is regularly abused to the point that its underlying principles become unrecognizable. My answer is meant only to address the actual <em>legal</em> rules your question implicates.</p>

<h2>Innocence and guilt has nothing to do with remand or bail</h2>
<p>The common law presumption of innocence and the right not to be incarcerated without due process are not at all incompatible.</p>
<p>The Constitution <a href="https://en.wikipedia.org/wiki/Due_Process_Clause" rel="nofollow noreferrer">prescribes</a> imprisonment in both the Fifth and Fourteenth Amendments respectively:</p>
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<p>No person shall [...] be deprived of life, liberty, or property, without due process of law.</p>
<p>[...]nor shall any State deprive any person of life, liberty, or property, without due process of law.</p>
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<p><strong>The application of bail laws <em>is</em> &quot;due process of law&quot;</strong></p>
<p>The law assumes that you are innocent and also allows you to be imprisoned while that assumption is tested.</p>

<p><strong>How does the law reconcile the &quot;innocent until proven guilty&quot; principle with the treatment of those awaiting trial on criminal charges?</strong></p>
<p>Bail is all about a proportionate response to risk management—not guilt or innocence.</p>
<p>The higher the risk the more severe the conditions, culminating with it being denied and the suspect remanded to custody.</p>
<p>For sure, people commit (suspected) crimes every day of the week but, when someone comes under the custody and control of the police or courts, they have a responsibility to mitigate the potential risks to victims, witnesses, society, and the criminal justice system—not just to ensure the defendant is available for trial.</p>
<p><strong>ETA</strong> in response to these comments (and others now deleted):</p>
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<p>How does having the money to pay for bail make someone less of a risk to society or less of a flight risk? Why does a bail bondsman get to decide who among the people who can’t pay bail outright should be released? It seems more like buying an indulgence than risk mitigation.</p>
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<p>It may be worth including your comment explanation in your answer just to prevent others who may be sensitive about bail issues from misunderstanding. I read the question and your answer, but somehow was just in the wrong mindset to see what it was really about until I re-read everything.</p>
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<p>The OP asked about how bail can be reconciled with the presumption of guilt, <strong>not</strong> about the failings in the American criminal justice system or one's ability to pay a bond—Both are different questions entirely and potentially better suited to PolicticsSE.</p>
<p>Michael Avenetti (the subject of the OP's linked article) has had his bail revoked despite <a href="https://www.wealthypersons.com/michael-avenatti-net-worth-2020-2021/" rel="nofollow noreferrer">having a net worth of $80 million</a>.</p>

<p>This is a clear example of a <a href="https://en.wikipedia.org/wiki/Legal_fiction" rel="nofollow noreferrer">legal fiction</a>.  Which is to say that it is a situation in which <strong>de jure</strong> and <strong>de facto</strong> views are entirely different.</p>
<p>The <strong>de jure</strong> view is that bail is not a punishment, but rather it is a partial benefit.  It allows a person to await a trial outside of a confinement of a jail, but it does mitigate the risk of their not showing up for trial by making sure that if they don't show up, then the state will be compensated for hiring extra help to retrieve them.</p>
<p>Additionally, simply being placed within the confines of a jail has been deemed to not be quite the same as a punishment because it doesn't attach numerous civil disabilities which come with a criminal conviction.  Rather it is an action necessary for the administration of a state.  This puts it on the level with police blocking a road.  People waiting to move have not committed any crimes and yet they remain confined within their cars and unable to proceed while the road is blocked.</p>
<p>The <strong>de facto</strong> view, of course, is that everything that comes with a formal accusation is punishing.  Even if one were to make bail and be found innocent at trial, it may still require exorbitant legal fees.  After all, because the legal system is inherently adversarial, retaining services of a capable attorney means outbidding others willing to pay for the attorney's services.</p>
