Bail process cannot be used to correct an injustice arising from a problem in the justice system

Dear Editor,

 

Recently it was reported that an attorney-at-law took issue with a senior official of the Customs Anti-Narcotics Unit (CANU) for criticizing a judge’s decision to grant bail in a high-profile case. The attorney described the CANU operative’s disagreement with the decision as “out of order,” in support of his position arguing that (a) a justice system as overburdened as ours cannot ensure a fair trial within a reasonable time; and (b) that Guyana’s Constitution guarantees that every citizen is presumed innocent irrespective of the nature of the allegation or the identity of the individual.

It is true that our “overburdened” justice system cannot guarantee accused persons a “fair trial within a reasonable time.” While this is regrettable Guyana is not alone in its dereliction of duty in this matter. In the richest country in the world – USA − this is also an issue of major concern. Since 1968 based on the findings of a study it had commissioned, the Department of Justice suggested that a prosecutor not handle more than 150 felonies or 400 misdemeanours per year. However in most large cities and counties it has been found that this suggested maximum workload is not being adhered to. For example in Harris County, Texas it is not unusual for a prosecutor to handle 500 serious felonies per year. In Clarke County, Nevada the average case load for each prosecutor was 166 felonies and 242 misdemeanours each year (Gershowitz and Killinger, 2010). Just as the attorney-at-law referred to above, observed in the case of Guyana, those involved in the criminal justice system in the USA have also concluded an overburdened justice system is unlikely to provide the accused a “fair trial within a reasonable time.”

However there are two major considerations that the court must focus on when considering whether to allow bail or not to an accused person, these are:

1) Is the accused a flight risk – can he/she be depended on to make him/herself available to face trial on a date set by the court?

2) If granted bail is the accused likely to be a threat to the safely and well-being of members of the community?

That the accused should be assumed innocent until found guilty at trial is not the principle for guiding a determination on whether to grant bail.

That the justice system is slow, “overburdened” and therefore cannot guarantee the accused right to a speedy trial needs our attention and the implementation of measures to correct same. I have heard in Guyana there is a movement to create family courts. Special magistrates to officiate in such courts can easily and over a relatively short period of time be trained at the University of Guyana. In the USA they are experimenting with various other approaches to solve the problem of too few judges. For example there are community courts in some states that deal with some non-violent crimes. Attempting to use the bail process to correct an injustice arising from a greater problem in our justice system would be unhealthy to the entire system and could be dangerous to the safety and lives of innocent community members.

Yours faithfully,

Claudius Prince

 

 

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