We all are taught at a relatively young age that America is the land of the free, that an accused is presumed innocent until proven guilty, and that we cannot be deprived of life, liberty or the pursuit of happiness without due process of law.

It’s in the Constitution, right?

So why, then, do we have thousands of people in jails across the nation awaiting trial, who have not been proven guilty, and are sitting in their jail cells while still presumed to be innocent?

That’s because they either haven’t been able make bail, or were denied bail by a judge, after hearing.

Guided by Constitutional due process guarantees, the law imposes standards regarding pretrial release whereby only the most serious offenses, capital crimes “when the proof is evident,” are not bailable. In such cases, it is Constitutionally permissible to hold the defendant without the right to post bail, pending trial.

Another basis to deny bail is where there is a showing that the accused is found to pose a danger to the crime victim, the community, or any other person.

Due process is deemed satisfied by a hearing before a judge wherein the case is reviewed, and a bail determination is made, based upon these standard.

And in cases of serious violent charges, where the accused has a long, violent history, it’s usually a no brainer. After such a determination, good policy dictates that he not be put back on the streets pending trial.

With lesser offenses, such as non-violent crimes and misdemeanor charges, justification for holding an accused in jail before trial becomes less clear.

Still, Missouri and most states permit courts to set any number of conditions before an accused in almost any offense may be released before he is proven guilty.

A typical part of such conditions is that a set sum of money be posted as bond to ensure the defendant will appear in court, whereby if the defendant fails to appear, then the bond can be forfeited.

In the state and municipal courts of Missouri, monetary bond is a typical requirement of many charges where the defendant is arrested, such as, misdemeanor stealing, misdemeanor resisting arrest, misdemeanor assault, and misdemeanor driving while intoxicated.

Bonds sufficient to secure release before trial on these types of offenses can range from $300 to $500 to $1,000 to $2,500, depending on the judge, the court, the defendant’s history and the charge.

Most courts allow bond to be posted by an approved surety, a bail bondsman, whereby the accused pays a non-refundable fee to the bail bondsman, typically one-fifth to one-third of the total bond to be posted, and the bondsman agrees to be answerable to the court for the full bond amount if the defendant fails to appear. In these cases, the defendant’s money is gone. And, the bail bondsman serves the function of rounding up defendants for whom they have posted bond who fail to appear in court, sometimes through the use of so called bounty hunters, to avoid a forfeiture of the bond they have agreed to pay.

Or, rather than pay a fee to a bondsman, the defendant can post the full bond, which is then refunded upon conclusion of the case, usually less court costs and fines that may be assessed.

What this often means is that poor people sit in jail awaiting disposition of their minor offenses, for which jail time may not even be assessed after a guilty finding, and people with enough money available – often through a parent or loved one – get out within hours of their arrest, while their case is pending.

The effect of this can often be that the indigent poor plead guilty at their first opportunity, so they can get out of jail, whether they believe they are guilty or not. Not really fair. But, it’s a practical reality among many poverty stricken defendants in the system.

There is a trend to address this phenomenon. Some states are eliminating cash bond as a condition of initial release of non-violent offenders, so long as they continue to appear in court. Judges in many quarters are likewise waiving the cash requirement on non-violent offenses in many cases. The idea is to avoid a system where the desperate poor rot in jail, and those whose parents, pimps or girlfriends can scrape up a little money get them out.

Still, in each case, pretrial release is a balancing act between weighing the factors of the accused’s risk of non-appearance in court, the potential danger to the victim or the public, and the fairness to a defendant who stands accused but is still presumed innocent under our system of justice.

-- Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com