[GA—AT VOTE—AGAINST] Fair Pretrial Procedure

Fair Pretrial Procedure
Category: Civil Rights | Strength: Significant
Proposed by: Barfleur | Onsite Topic​

Whereas rules of criminal procedure must balance the presumption of liberty with the public safety in a fair manner, be it enacted as follows:

1. Definitions.
   In this resolution:
   • "bail" means:
     • the conditions imposed on a defendant to secure the defendant's attendance in court as required; or
     • remand;
   • "money bail" means a form of bail in which the defendant or a third party is required to provide valuable collateral, on the understanding that, should the defendant willfully fail to appear in court when required or otherwise willfully violate a condition of bail, the collateral will be forfeit;
   • "remand" means the decision to incarcerate a defendant pending the disposition of their case; and
   • "defendant" means a person charged with one or more criminal offenses.
2. Authority to set bail.
   • A court having jurisdiction of a criminal case has the authority to secure the defendant's appearance in court by means of bail.
   • As soon as possible after a criminal case is initiated, the court shall schedule a hearing to determine the defendant's release pending trial. The defense shall have the opportunity to request bail (or that the defendant be released with no bail), and to present evidence in support of its request. The prosecution shall have the opportunity to request remand, bail, or release without bail, and to present evidence in support of its request.
   • If the court finds that bail is not necessary to secure the defendant's required appearance in court or to protect the public, it shall release the defendant on their own recognizance pending trial. If the court finds that bail is necessary to achieve either or both of those purposes, it shall impose the least restrictive bail conditions necessary to achieve them. If the court finds that no combination of conditions can reasonably achieve those purposes, it may remand the defendant.
   • Notwithstanding subsection (c), member nations may through their own rules of criminal procedure further restrict a court's power to remand a defendant.
3. Money bail.
   • The court shall not impose money bail unless it would otherwise remand.
   • If the court decides to impose money bail, it shall:
     • ensure that the person paying the collateral understands the extent to which they will be liable should the defendant willfully fail to appear in court as required or willfully violate a condition of bail;
     • set bail in an amount that the defendant can afford without liquidating their residence or any tools used by the defendant as part of their bona fide business or employment; and
     • return all collateral at the conclusion of the case, unless the defendant willfully failed to appear in court when required or willfully violated a condition of bail.
4. Remand.
   • If the court decides to remand the defendant, it shall, within one week of such decision, issue a written or oral decision on the record detailing its reasoning therefor. The defense may waive this subsection.
   • The amount of time for which a defendant may be remanded shall not exceed the cumulative maximum sentence that may be imposed upon conviction.
   • Should the defendant be convicted, any time spent on remand shall be credited day for day towards any sentence of imprisonment imposed.
   • A remanded defendant shall have the opportunity to consult with counsel as frequently as is necessary to prepare an effective defense.
5. Prohibited practices.
   • Neither the prosecution nor the court may take any action against the defendant to prevent the defendant from applying for bail, or to retaliate against the defendant for having applied for bail.
   • The prosecution shall not request, and the court shall not impose, any conditions of bail for the purpose of inducing a plea of guilty or other waiver of rights, or from preventing the defendant from having a fair trial.
   • The defendant's race, sex, religion, or other arbitrary and reductive factors shall not be considered in deciding whether to grant bail and what conditions of bail shall be imposed. This does not prohibit an examination of the defendant's financial state for the limited purpose of imposing money bail, or consideration of the defendant's advanced age or disability as a factor favoring more lenient conditions.
6. Violation proceedings.
   • If, during the duration of a criminal case, the prosecution alleges that the defendant willfully failed to appear in court when required, or otherwise willfully violated a condition of bail, it may request remand or the imposition of more restrictive bail conditions.
   • The court shall not grant such a request unless it finds such allegation true by clear and convincing evidence. The prosecution shall have the burden of proof, and the defense shall have the opportunity to respond.

Click to expand...

• Vote For if you want the Delegate to vote For the resolution.
• Vote Against if you want the Delegate to vote Against the resolution.
• Vote Abstain if you want the Delegate to abstain from voting on this resolution.
• Vote Present if you are personally abstaining from this vote.

If the court finds that bail is not necessary to secure the defendant's required appearance in court or to protect the public, it shall release the defendant on their own recognizance pending trial. If the court finds that bail is necessary to achieve either or both of those purposes, it shall impose the least restrictive bail conditions necessary to achieve them. If the court finds that no combination of conditions can reasonably achieve those purposes, it may remand the defendant.

Click to expand...

Fregerson:

Against. Don't understand how the following clause is intended to be followed in reality, and can't see proper enforcement for this clause.

Click to expand...

Comfed:

I don’t see the complexity. If the court decides bail isn’t necessary to prevent a defendant from skipping town or committing more crimes before their trial, then they don’t impose any. If the court decides that even bail isn’t enough to stop the defendant from doing those things, then they incarcerate the defendant without bail.

Click to expand...

Fregerson:

But what about enforcement? Who is to decide that if indeed a bail is not necessary?

Click to expand...

Comfed:

In bail proceedings, my understanding is that it would be a judge.

Click to expand...

Fregerson:

More like I was thinking, what is the difference between having this proposal written and not having this proposal written? In terms of countries who already have bail policies, there probably isn't going to be much change. In terms of countries who don't, who is going to ensure this is properly followed? Good Faith? If something only works because of Good Faith, then I am not quite sure if we need such a resolution at all to be honest...

Click to expand...

Fregerson:

More like I was thinking, what is the difference between having this proposal written and not having this proposal written? In terms of countries who already have bail policies, there probably isn't going to be much change. In terms of countries who don't, who is going to ensure this is properly followed? Good Faith? If something only works because of Good Faith, then I am not quite sure if we need such a resolution at all to be honest...

Click to expand...

Comfed:

I feel like you could say this about just about any resolution though?

Click to expand...

Simone:

To be fair there's now a GA resolution that requires resolutions to be interpreted in good faith (although I tend to still add the words "in good faith" into my resolutions to avoid that issue). And then there's the Administrative Compliance requirements, so there's some sticks for non compliance.

Click to expand...