THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Friday, March 15, 1996 TAG: 9603150001
SECTION: FRONT PAGE: A18 EDITION: FINAL
TYPE: Editorial
LENGTH: Medium: 55 lines
American justice is based on the principle that a person is innocent until proved guilty.
That principle was turned on its head by a 1984 federal bail-reform law that shifted the burden of proof from the prosecutors to defendants in certain instances.
Prior to that change, all defendants in federal court were granted a reasonable bail pending trial unless prosecutors demonstrated they'd be threats to society or themselves or might flee.
Under the bail-reform law, federal defendants charged with violent crimes or serious drug offenses must prove they'd be harmless if released until their trials - no easy task.
A bail-reform bill that passed the General Assembly last week and awaits the governor's signature is roughly patterned after the tough federal law. Under the state bill, a defendant convicted within the previous 16 years of murder, malicious wounding, robbery, sexual assault or drug sales, and charged with committing another such crime, would have to prove to a judge that his or her release would pose no threat.
Prosecutors say the bail-reform bill, by incarcerating more defendants pending trials, would help protect witnesses from intimidation and would encourage defendants to avoid dilatory tactics.
The bill was introduced by Del. William S. Moore Jr. who represents Portsmouth, which has the slowest courts in the state and a history of witness intimidation. Residents have complained loudly that the courts have been revolving doors for violent criminals. It certainly has seemed that way.
Moore's proposed law might be popular in Portsmouth, but defense attorneys say shifting the burden of proof from prosecutor to defendant is inconsistent with the concept of American justice. We go from ``innocent till proved guilty'' to ``harmful till proved harmless.'' Jailing defendants, they add, is the wrong way to obtain speedier trials.
Some defense attorneys say Portsmouth court problems result not from a failure of existing law but a failure of prosecutors and police to make the case that defendants should be denied bail. It's true that other jurisdictions have far speedier trials than Portsmouth and fewer complaints about the release of defendants with histories of violence.
It is tempting to trade civil liberties for protection, but we are a great society because we're a free society. When defendants at bail hearings have to prove they're no threat to society, another civil liberty slips away.
The present system, used effectively, denies bail to people who have committed violent crimes and are charged with committing additional violent crimes.
The burden of proof should remain with the prosecutors. by CNB