Claviger’s Idea That Bail Be Denied Anyone Facing 25 Years or More Is Horrifying

Medieval jury depicted in Grand Coutumier de Normandie [Customary Law of Normandy]. Illustrated manuscript on vellum, ca. 1450–1470. Law Library, Library of Congress

By George Frobisher

This is in response to K.R. Claviger’s otherwise thoughtful piece, Appellate Ruling Dooms Epstein’s Appeal on Denial of Bail – Will Likely Be Held at MCC Until Trial.

In it, Claviger says, “How about we just adopt the standard that says if you’re facing more than 25 years in prison, you’re not getting bail?”

I think the problem with denying bail automatically to any defendant charged with crimes that would see a sentence of 25 years or more is that prosecutors will abuse it.

Human nature being what it is, prosecutors would simply tack on more charges to insure a defendant is denied bail. That will make their job much easier.

It is harder to defend oneself at trial while in custody. You cannot see your attorneys unless they come to where you are being held in jail or prison. This is highly inconvenient for busy lawyers.  Any good lawyer is busy.

Then when the lawyer comes, they must meet you in a room in jail which is often not private.

You have no easy access to phones, printers, emails, copy machines, cameras, photos. Sometimes even paper and pen is hard to get.

In addition, being in prison or jail saps a person of their health and optimism. It is hard to get decent food, sunlight, relaxation, ministering spirits – or good company.

That may be OK for prisoners who have been convicted but for someone who is innocent until proven guilty – denial of bail is punishment indeed.

Suppose you are innocent. Suppose the government has falsely charged you.

It can happen.

Then all things that could aid your defense are hard to get. Once a man is denied bail he is almost certainly going to be convicted.  Even if innocent.

Even an innocent person would be inclined to take a plea deal since the odds of mounting a successful defense dramatically goes down once a person is denied bail.

The Innocence Project has demonstrated that about 10 percent of people convicted on plea deals were actually innocent. That means people accepted plea deals though they were 100 percent innocent because prosecutors so overcharged them that they were facing much longer prison sentences and could not take the risk.

The reason why the idea that any potential sentence of 25 years of more requires a defendant to be denied bail is wrong is that all a prosecutor would have to do (and they can easily do it on purpose ) is lead [or mislead] a grand jury into agreeing to more charges.

You have heard it said that “a grand jury will indict a ham sandwich.” What is meant by that is that in America the grand jury has lost its true purpose. It used to be an independent investigative body – made up of the people – not the government – which is supposed to investigate crimes and prevent the government from charging innocent people.

The grand jury assumes an indictment alone is highly destructive to an individual citizen and its original role was to protect citizens from hasty or malicious governmental abuse.

It has completely lost that purpose. It now serves solely as a tool of the prosecution. It is a complete perversion of what the grand jury was intended to be. It may be one of the reasons why the land of the free has the largest percentage of its people in prison in the world.

Originally, the grand jury was meant to stop overzealous prosecutors. Now it serves to enable overzealous prosecutors.

So, now if bail is denied to anyone who faces more than 25 years – as Claviger suggests – and if it is true that a defendant has far less chance of defending himself [even if he is innocent] if denied bail, and if it is true that a prosecutor – using his tool – the grand jury – has a large amount of prosecutorial discretion – to overcharge [there is no punishment for the prosecutor for overcharing] then all a prosecutor has to do is charge enough so that it adds up to more than 25 years.

Bingo – the man is ruined. We then have a complete police state. [We very nearly have a police state now in my opinion.]

Even if the prosecutor could not prove all charges, it would hardly matter, because the defendant would be denied bail and would not be able to properly defend himself.

If he is charged with 20 counts and he is convicted on only one – the prosecutor still declares victory.

Can you imagine what it will be like if everyone is denied bail merely because prosecutors can level 25 year charges on them?

All of a sudden we will see almost everyone charged with indictments that carry 25 years and a day penalties.

The idea is horrifying.

About the author

George Frobisher

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4 years ago

Dear George & Krclaviger,

Don’t you guys love how Frankreport readers/commentors don’t care about a debate regarding something so important?

But if we are debating about Kim Kardashian’s ass being too large I’m sure everybody would chime in…..

K.R. Claviger
4 years ago

Sometimes, I don’t do a great job of putting into words the thoughts that are running around in my head. This is one of those times.

To begin with, I am a strong proponent for totally eliminating cash bail – which is SLOWLY being done in New York State. Doing so will do away with some of the inherent inequities in the current bail system – and greatly reduce the number of people who are currently incarcerated (Example: 78% of the prisoners in New York City jails — including Rikers Island – are there because they couldn’t make cash bail).

Once you eliminate cash bail, there are only two factors that should be considered in deciding whether a defendant must be incarcerated while they are awaiting trial: (1) Is the defendant a flight risk? – and (2) Is the defendant a danger to society?

Unfortunately, both of those factors allow judges to make decisions that often reflect their own biases. And decisions based on those biases can generate results that are almost as unfair as our current cash bail system.

Can’t we pretty much resolve the flight risk issue by requiring ALL pre-trial defendants to wear a GPS-style ankle monitor? Except for the few that will be dumb enough to cut off the monitor, this would let us know where all the pre-trial defendants are 24/7.

The “danger to society” factor is much harder to resolve. The point I was trying to make is that it’s not fair for a judge to listen to the UNCHALLENGED testimony of a witness who has likely been coached to say the magic words – “I would be fearful for my life if the defendant were allowed back on the street” or words to that effect – and then remand the defendant back to jail to await trial.

Why can’t we put anyone who is considered to be “dangerous” on home-confinement? Wouldn’t that be a fairer way of dealing with a prisoner who has not been convicted of anything?

I find Jeffrey Epstein repugnant – and I hope he spends the rest of his life in prison. But keeping him locked up at MCC for the next year is both unnecessary and unfair.

All of my thoughts have to do with defendants who do not have prior convictions.

I would not object to different standards for those who have prior convictions – especially if those prior convictions involved violent crimes.

But we can get into those nuances another day.

4 years ago
Reply to  K.R. Claviger

“Sometimes, I don’t do a great job of putting into words the thoughts that are running around in my head. This is one of those times.”

Hey Krclaviger,

“Cocaine is one helluva drug.”
Rick James

Party on Krclaviger!!!!!

Heidi Hutchinson
Heidi Hutchinson
4 years ago
Reply to  K.R. Claviger

This gentlemanly debate is a great read on both sides. But Clav’s got something of a solution going whereas too true be Frobisher but too dismal fathom. Is there no solution to stop a police state from ruling our “democracy” surely as it does communist and fascist lands?

4 years ago
Reply to  K.R. Claviger


I agree with you regarding cash bail, however for me personally there are 2 types of criminal defendants…..

The first group are the people we are all mad at such as drug users or people who cheat on their taxes.

The second group are the people we are all scared of such as murders, rapists, and child molesters.

I am fine with the first group getting bail.

I am not completely okay with the second group getting bail. I believe the second group’s right to bail should be determined by a judge.

4 years ago
Reply to  K.R. Claviger


I apologize for joking around. I greatly appreciate all of your reporting and excellent writing.

You made one post in all of this time in haste so what!

You have nothing to apologize for!

Please keep reporting and fighting the good fight!!!!!

I am not much of a fan of the Washington Post anymore, but one thing is true…

Democracy dies in silence!

4 years ago

Dearest George,

Krclaviger before he wrote that piece…

…..had a double expresso with a chaser of whiskey after snorting 1/2 an 8 ball of a hookers ass with Ben Zemeckis in attendance.

Have some respect!

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