Proposition 189 was an amendment to the Constitution of California voted on November 8, 1994. The results were univocal: 79.4% of voters supported the amendment. According to the proposition, the courts got the right of denying the bail for sexual assault crimes. The results show that people of California have stood for tightening the law against sexual offenses. The reasons for this are quite clear – a person, who is suspected of a sexual felony, may repeat the assault once again if released on bail. However, there are also some objections to the Proposition 189 and the current paper is aimed at the analysis of opinions for and against this amendment.
In democratic countries, rules of criminal procedure must be first directed to the protection of human rights and freedoms. In the USA, the base for the procedure is Title 18 of the United States Code, sections 3141-3150 (Legal Information Institute, 2015). Typically, the rules of bailing vary in different states. The Proposition 189 made corrections to the bailing procedure in California. The main conflict about it concerns the status of an accused person. The question is if one puts a sign of equality between the statuses of ‘suspect’ and ‘guilty’. People have to choose between human rights and repressive mechanisms; obviously, these things are incompatible.
One must understand that releasing a person on bail is not a release from responsibility of a person suspected of committing a crime, especially as serious as sexual assault. Release on bail is only a preliminary measure in the investigation, which is applied before the court verdict. The use of this preventive measure gives a real opportunity of paying compensations to the victims of crimes. The funds paid to the state budget are used for indemnification payments to victims and the state after the conviction of the guilty person. Without these funds, the victims may remain without the guarantee of compensation. At the same time, the state will have to allocate large amounts of public funds for the maintenance of the suspects in jail, the number of which with the limitation of releasing on bail will increase significantly.
Except for financial considerations, the legal basis of the issue is ambiguous. The international law, in particular Article 5 of the UN Universal Declaration of Human Rights, and the Constitution of the USA state that each person is free (United Nations Organization, 1948). The main advantage of bail as a preventive measure is that a person’s constitutional rights such as freedom of movement undergo minimal restrictions for a period of the criminal proceedings. Just suspicions of committing a crime, even a serious one, are not enough to limit the person’s freedom or deprive him or her of this personal value. There must be other reasons present, such as the risk of suspect’s escaping, committing new crimes, influencing witnesses and investigation, etc. (Beitz, 2009). A law that recognizes the severity of the crime to be the only basis for detention without an alternative violates these standards.
A possible way out of this legal controversy is increasing the sum of bail for sexual assault felonies. For example, in 2013, the Cleveland municipal court set $8,000,000 as the amount of bail for Ariel Castro who had been accused of kidnapping, illegal retention and long-term regular raping of three women (Muscal, 2013). The amount of bail must correspond to the social danger of the supposed criminal since sexual assaults may be very different, same as suspects’ personal characteristics. Complete denial of the bail equalizes all the potential defendants while the imposed sum may provide the difference of approaches and give more freedom to courts. The Constitution of California prohibits setting an excessive amount of bail, but highly dangerous supposed crimes need large bail and it may be not excessive (California Legislative Counsel, 2015). 8 million dollars for Castro was not an excessive bail, though it was obvious that he would not be able to pay such an amount of money.
There is no good jail. In the case of bail application as a preventive measure, the person who has never been to jail before does not fall under the influence of the criminal environment. In addition, criminal deformation of a presumably guiltless person does not take place as it often happens, when the preventive measures focus on imprisonment. More to say, the cases of false accusations are not rare; their motivation is different - revenge, jealousy, resentment, etc. (Cybulska, 2007). The price of justice miscarriage becomes extremely high, especially at the pre-trial stage. The false accusation may break one’s entire life if he or she is imprisoned even for the period until the court verdict. Finally, a person left free or slightly limited has more possibilities for legal defense. Being imprisoned, the suspect cannot do his or her best to collect all the necessary evidence that may be needed for effective legal defense (Bibas, 2004). Lawyers and investigators see the situation from outside, but only the suspect and the victim know the empiric circumstances from inside.
The above arguments support releasing on bail as a preventive measure. However, almost 80% of Californians voted for denying the bail for sexual assault felonies (Ballotpedia, 2015). Their reasons belong rather to the sphere of social security than human rights protection. The sexual offence has always been regarded as one of the most serious crimes against the person, and therefore, society has punished its members guilty of it severely. It cannot be otherwise, because sex plays an important role in the lives of people, it affects the level of culture in society, and the very sexual need is a basic life instinct. It is clear that not the need is punished, but an anti-social form of its satisfaction. Thus, the community providing individual freedom of determining sexual preferences at the same time restricts the means and ways to satisfy them. These reasons represent a reverse side of the arguments supporting the bail for sexual felonies. For instance, a person released on bail has more possibilities for defense, but he or she also has more opportunities for influence on the victim and investigation, especially if the person is rich and powerful.
Definitely, release on bail cannot be applied to recidivists. The person, who has broken the law several times, is much more socially dangerous and he can easily repeat the anti-social action. Statistically, the risk of such actions is high, that is why social security in this case stands above person’s rights and freedoms. The criminal deformation, which was mentioned above as a pro for the bail, in the case of recidivist becomes a con since his or her personality is often already deformed. Their families in most cases split, they intensively seek for satisfaction of sexuality and other normal needs, often doing it in socially dangerous ways through violence, perversions, etc. (Tripoli, Kim, & Bender, 2010). The repeat offenders’ proper attitude to social and moral values (social duties, labor, family, and even themselves) is either at poor level of development or completely absent (Makarios, Steiner, & Travis, 2010). Positive value orientations tend to being replaced by a complex of anti-social assessments, opinions, and beliefs. Therefore, recidivists, especially those who have previously committed sexual felonies, are socially dangerous, and their right for the bail must be seriously restricted.
In conclusion, the aim of the amendment 189, 1994 was to prevent repeated sexual assaults by persons accused of such felonies. The voters overwhelmingly supported such measures, in particular the restriction of release on bail for sex offenders. Still, the decision caused broad discussion among lawyers, human rights activists, and in society in general. The problem is that an accused person is not found guilty, so his or her rights and freedoms cannot be limited. The arguments concerning the amendment have been divided into pros and cons. The pros include the following:
- Sexual assaults are highly socially dangerous crimes, so releasing suspects on bail the risk of offence recurrence increases; society cannot let it grow, so restriction of rights and freedoms for one person is a necessary payment for the security of entire society.
- Many people treat the bail as means of pay-off for the committed felony; they think that absence of immediate punishment encourages further crimes both by the person released on bail and other members of society.
- In many people’s opinion, the system of releasing on bail provides social inequality: if a person is rich, he or she can simply pay for the release, but if the suspect is poor – he goes to jail; it is considered as violation of equality before the law.
The counterarguments are as follows:
- According to the laws including the Constitution of the USA, each person is free and cannot be put to jail until found guilty.
- The imprisonment of a person for the term of investigation harms both the person (through deprivation of certain rights) and society (the state spends budgetary funds for keeping the person).
- Staying in prison deforms the person; being acquitted, the person who did not commit any crimes suffers from moral damages.
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