ner and build a relationship of mutual trust and understanding. The high caseloads prevent this from happening.
an understanding of the information provided. For example, the judge should ask what the defendant understands to be the collateral consequences of the plea. Only after a defen- dant demonstrates some understanding and the defense at- torney states that all options and consequences have been fully explained should the judge proceed to allocution. 2. The impact of bail and bond determinations on the pressure to plead should be consid- ered with regard to each defendant. As the American Bar Association has declared, “The law favors the release of defendants pending adjudication of charges. Deprivation of liberty pending trial is harsh and oppressive, subjects defendants to economic and psycho- logical hardship, interferes with their ability to defend themselves, and, in many instances, deprives their families of support.” 179 Accordingly, “[i]t should be presumed that defendants are entitled to release on personal recognizance on condition that they attend all required court proceedings and they do not commit any criminal offense.” 180 To justify pretrial detention, a prosecutor must show substantial evi- dence that the defendant is a risk for non-appearance, or a threat to the community or an individual. 181 Under these standards, pretrial incarceration is usually in- appropriate for alleged misdemeanants. The relatively minor nature of the charges generally means that the de- fendant does not pose a risk to society if released. How- ever, defendants accused of misdemeanor offenses are often jailed pretrial. This frequently occurs because a judge sets bail or bond to ensure that the defendant appears at a sub- sequent hearing, and the defendant cannot pay the amount necessary to obtain release. Factors considered in bail and bond determinations are broad, ranging from seriousness of the pending charge, to previous criminal convictions, to employment, to family and the role the defendant plays in supporting a family, to other ties to the community. Among the considerations that judges should take into account when looking at bail and bond is the coercive effect that the amount may have in pressuring the defendant to plead guilty. 182 For misdemeanor defendants, a recognizance bond should be considered in every case. As Professor Zeidman observed, defenders “have to attack the premise that someone plead- ing not guilty stays in jail, and the guilty person goes home.” Cash or security bail and bond should be set only if there is evidence of danger to the community or evidence of risk failure to appear at the subsequent hearing. Then, the mis- demeanor defendant should be questioned regarding whether he or she can afford the bail or bond contemplated before it is set. Even if a judge concludes that a misde- meanor defendant needs intensive supervision, the judge should take steps to alleviate the pressure to plead that might be created by pretrial incarceration, including grant- ing work release during pretrial detention, and ensuring that the detention is minimized through a speedy trial.
Recommendations — Misdemeanor Defense in Practice 1. Guilty pleas should not be accepted at first appearance unless the attorney has fully in- formed the defendant of the options, the po- tential defenses, the potential outcomes, the consequences of foregoing further investi- gation and discovery, the possible sentences, and the collateral consequences of convic- tion, and the defendant understands and chooses to plead guilty. In addition to con- ducting a full and vigorous colloquy, judges should require defense attorneys to aver, on the record, that these steps have been taken. Although the decision of whether or not to plead guilty re- sides squarely and exclusively with the defendant, the judge has the obligation to ensure that a plea of guilty is entered knowingly and voluntarily. A plea entered upon first ap- pearance should be inherently suspect under this standard. The defense attorney has the obligation to ensure that the defendant has been fully informed of all options and risks, including potential defenses, potential outcomes, sentences, and collateral consequences. Accordingly, the defense at- torney should be willing to state, on the record, that the de- fendant has received full and appropriate counseling in these areas before the plea is accepted. The plea colloquy performed prior to a guilty plea being ac- cepted at first appearance should be more probing and vig- orous. Judges should not merely ask the defendant to confirm that they were fully informed of their options and the consequences of the plea. They should ask open-ended, probing questions that require the defendant to demonstrate
36
“The prompt disposition of criminal cases is to be commended and encouraged. But, in reaching that result, a defendant … must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. — U.S. Supreme Court, Powell v. Alabama , 287 U.S. 45 (1932).
Minor Crimes, Massive Waste
Made with FlippingBook Online document maker