If you can’t get out on bail and are later proved innocent, can you get paid back for the time you spent in jail?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

When a judge makes a bail decision, he is obligated only to use his best discretion in deciding whether the defendant should be released.  He has to rely on the prosecutor and defense attorney to be thorough and accurate.  It is very hard for individuals representing themselves to collect proof of tasks that the judge and lawyers might have failed to do.  Still, there is research material that a person who was wrongly jailed and wrongly denied bail might want to investigate.

Clearly, a person in jail awaiting trial can suffer losses of money and experience. He might lose pay for missing work or he might lose the job altogether. If he lived in a public place or even in a shelter, he might have lost all of his possessions during the time that he was in jail and unavailable to watch his stuff. If he missed making payments on something because of being in jail, the item might have been repossessed.

He could miss a job interview or someone’s birthday or some other important event. He might have gotten housing if he’d been at a meeting that he couldn’t attend because he was held in jail, waiting for a trial. These losses might not have as much significance if that person is found guilty at his trial and has to spend a long time in prison anyway. But, if the person is found to be innocent, then the justice system has cost him truly unnecessary losses.

Only after the trial is that person in a position to have full proof of his losses because only then, when a court of law has held that he was innocent of the crime he was charged with, can he definitely state that had it not been for the bail denial, he would have been able to continue that job, get into that housing, save his possessions, etc… So, it is in an entirely separate case from his criminal trial that he would seek to make a claim for financial damages.[i] And, like all claims for money damages, the case would be in civil court, rather than criminal court.

There is not a body of legal literature about cases in which innocent people who were denied bail successfully sued the court for damages. This does not mean that there have never been any successful claims like this, but closest body of law is about cases in which people were wrongly convicted and later found innocent.[ii] Nevertheless, here is how a claim might play out:

Being a civil case involving an individual against a government entity, i.e. the court that denied bail, this claim for damages arising from unnecessary jailing would be based on constitutional rights. Likely claims would be violations of Fifth and Fourteenth Amendment rights to life, liberty, and due process.[iii] It has been said that, “In convicting an individual of a crime, the government reaches out to deprive him of life, liberty, or property by execution, jail, or fine.”[iv]

Years ago, a Lawyer-in-Chief of the Office of Professional Responsibility at the U.S. Dep’t. of Justice declared that “There is no other department [of government] that is viewed with comparable terror or fear, because there is no other department that by itself can put you in jail or take your life, liberty or property away from you.”[v] And, a court deciding a case in which a lawyer did not seek pretrial release for two indigent clients firmly stated that, “Any form of pretrial incarceration infringes on an accused’s liberty interest in a powerful and obvious manner.”[vi]

Some people present their due process claim along with a claim that the court violated rules about bail or release on recognizance.[vii] For this research, the innocent person, denied bail, would find the state or local rule of criminal procedure delineating how bail decisions are to be made and would show how that procedure was not properly applied in his case. Then, this unnecessarily jailed claimant would read Title 42 of the U.S. Code §1983[viii] which is about money damages for civil rights violations, and decide whether to include that kind of claim in the case.

NOTE: If you are in jail and are representing yourself in court, you might like The Jailhouse Lawyer’s Handbook published by the National Lawyers Guild.


[i] Notice that this question and answer are only about financial damages. It is definitely possible to appeal a bail decision in the criminal court system. The procedure for appealing a bail decision is established in criminal court rules. Those rules, and possibly forms to use for the appeal, are likely to be published in the local and state statutes, in individual books titled “(Name of State) Rules of Court”, and in attorney practice manuals for that jurisdiction. The clerk of the criminal court might even have an appeal packet available upon request.

[ii] See the National Registry of Exonerations to read about people who were eventually freed after being wrongly convicted of crimes. For a comparison of cases from throughout the country, See Annotation, Application of State Statute Providing Compensation for Wrongful Conviction and Incarceration, 34 ALR 4th 648 (1984 updated through 2006). In addition to “wrongful conviction,” a related research term for locating law on this topic is “false imprisonment.”

[iii] U.S. CONST. Amend. V, XIV. “No person shall ….be deprived of life, liberty, or property, without due process of law.”

[iv] David. P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L.Rev. 864, 874 (1986).

[v] Elkin Abramowitz and Peter Scher, The Hyde Amendment: Congress Creates a Toehold for Wrongful Prosecution, 22 Champion 22 (1998). Available at http://www.nacdl.org/CHAMPION/ARTICLES/98mar04.htm quoting from the book MAIN JUSTICE by Jim McGee and Brian Duffy.

[vi] Matter of Rosen, 470 A.2d. 292 (D.C. 1983).

[vii] The Federal Rules of Criminal Procedure are at http://www.law.cornell.edu/rules/frcrmp/. State Rules of Criminal Procedure are at http://www.law.cornell.edu/topics/state_statutes2.html#criminal_procedure. Note, however, that a criminal statute might say that bail or other pre-trial release is impossible in connection with a particular crime.

[viii] 42. U.S.C. §1983.

Advertisements

One Reply to “If you can’t get out on bail and are later proved innocent, can you get paid back for the time you spent in jail?”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s