THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Wednesday, March 27, 1996 TAG: 9603270007
SECTION: FRONT PAGE: A10 EDITION: FINAL
TYPE: Opinion
SOURCE: By CHARLES D. GRIFFITH JR.
LENGTH: Medium: 79 lines
The editorial ``Proving innocence'' (March 15) criticized Virginia lawmakers for amending the statute regarding the setting of bail for people charged with criminal offenses. I write to point out that your criticism of the legislation is based upon an incorrect understanding of the legal principles applied in determining reasonable bail for people charged with crimes.
The basic thrust of the editorial was that the new bail statute undermines the principle that people are presumed innocent until proved guilty and, thus, unfairly shifts the burden of proof away from the prosecutor to the defendant. In fact, the determination of reasonable bail has nothing to do with the principle that a person charged with a crime is presumed innocent until proved guilty. Rather, bail proceedings, like many pretrial proceedings, are based upon a legal principle referred to as ``probable cause.''
When a magistrate or a grand jury charges someone with a crime, they have to decide whether probable cause exists that the particular person has committed the particular offense. The probable cause standard does not require the same level of proof as required to overcome the presumption of innocence, which is decided at trial - not pretrial. Probable cause is established when a reasonable factual basis exists for a particular conclusion.
The same probable-cause standard applies in bail determination proceedings. In determining reasonable bail for someone accused of a criminal offense, Virginia historically has considered evidence of prior criminal conduct, to include prior convictions, as well as other personal-background information to decide whether a person is a flight risk or a potential danger to the community while awaiting trial. Few citizens would disagree that a person who has been previously convicted of a violent crime or serious drug offense, and who has now been charged with a similar offense (that is, a determination of probable cause has been made by a magistrate or grand jury that the person has committed a violent offense or drug-dealing offense), poses a pretrial flight risk and/or is a potential danger to the community.
Prior to Virginia's recent reform of its bail law, judges were free to give whatever weight they deemed appropriate to a person's prior history of violent or drug-related convictions, and based upon such considerations set a high bail or deny bail altogether to a defendant. Further, defendants usually are the moving party in any bail proceeding. Thus, even under Virginia's existing bail law, defendants often are placed in the position of presenting some evidence to convince a judge either not to deny them bail or to set a high bail notwithstanding their prior criminal-conviction history.
In establishing a presumption that people charged with violent or drug-related offenses who previously have been convicted of similar offenses are a flight risk and potential danger to the community, the General Assembly did not shift the ultimate burden of proof of guilt which the prosecution bears or tamper with the principle that a person is innocent until proved guilty. Instead, the legislature has merely determined that, pretrial, evidence of prior criminal convictions coupled with a new probable-cause determination for a similar offense should require that a defendant be held without bail unless and until such defendant presents credible evidence to the contrary. Such a determination makes good sense.
As a practical matter, holding without bail defendants who have a record of violent or drug-dealing crimes and who are charged with new violent or drug-dealing crimes pretrial does provide a sense of security for potential witnesses. If fearful potential witnesses know that the defendant will await trial in custody, their willingness to come forward and testify truthfully is enhanced. Additionally, a defendant in pretrial custody is more likely to seek a speedy trial than one who is free on bail and able to continue his criminal lifestyle without interruption. Finally, the federal statute pertaining to bail (a statute more expansive than Virginia's reformed bail statute), upon which the reformed Virginia bail statute is modeled, was upheld as constitutional by the U.S. Supreme Court more than 10 years ago.
While it may be true that criminal-defense attorneys will not like the new bail-reform statute, and some judges might cringe that it is an infringement upon their discretion, law-abiding citizens and crime witnesses will be able to rest a little bit easier once it goes into effect July 1. MEMO: Mr. Griffith is Norfolk commonwealth's attorney. by CNB