August 17, 2012 Open Society Justice Initiative
The people of Puerto Rico will take part in a referendum this Sunday on whether to modify the right to bail currently guaranteed by the U.S. territory’s 1952 constitution.
The vote takes place against a worsening epidemic of violent crime, fueled by drug and gang violence. Puerto Rico now has a murder rate five times higher than the U.S., while last year the number of people murdered rose to a historic high of 1,136, up 14 per cent on the year before.
Puerto Rico is one of the few places in the western hemisphere where all people are entitled to bail, under a constitutional provision that reflects its history of popular distrust of the U.S. authorities. The referendum proposes removing the right from those accused of a range of murder charges, such as premeditated murder, murder linked to a sexual assault or kidnapping, and murder resulting from firing a firearm from a motor vehicle.
Proponents of the measure, including both government and opposition politicians, argue that abolishing the right to bail for serious crimes would increase Puerto Rico’s dismal prosecution rate for murders, asserting that witnesses can currently be intimidated into silence by suspects who are out on bail.
Opponents, including civil rights groups and poverty advocates, argue that removing the right to bail will increase the possibility of wrongful convictions, while leaving accused persons subject to increased pressure from the police and prosecutors while in detention.
I understand the allure of this amendment at a deep personal level. My family lives in the island, and like many who do, we collectively have suffered through various car jackings, robberies, and even been caught in the middle of gang shoot-outs in broad daylight.
But while working on the Global Campaign for Pretrial Justice I have also learned that fear and broken hearts do not change one important principle: that we need to defend the rights of those who may be guilty, in order to protect the rights of the innocent.
I have also seen that this kind of populist law and order “fix” has been tried in other countries, and that it never works. Violent crime continues, but justice is diminished. The police become complacent, the prosecutors lazy, and the judges cowed by public pressure to put people behind bars.
A commentator on one major newspaper who supports the constitutional amendment asks: “Would I rather that if one of my children commits [a listed] atrocity they have a right to bail, or would I rather that if someone commits one of these atrocities against one of my children they be denied bail?” But the question itself is flawed and exemplifies the harm in this measure: it assumes that only the guilty are arrested. A murderer is not entitled to bail; a person accused of murder is entitled to bail. We forget that guilt can only be proven through proper court proceedings.
In practical terms, the debate in Puerto Rico is also illusory, since it is unlikely to change the number of people held in detention while awaiting trial. It is true that the constitution states that “before conviction every accused shall be entitled to be admitted to bail”. But if a judge wants to keep a person in pretrial detention he or she currently has the power at a bail hearing to set the bail deposit so high that the accused cannot pay.
That’s what happened to the two sneering young teenagers, both found guilty of murder, who are featured in a poster of the anti-bail campaign, under a slogan “If you vote ‘No’, they win”. While It’s true that both were granted bail, neither had the money to pay, and both remained in detention. It’s telling that the government could not find an applicable example to use in their campaign.
A bail hearing where bail is assumed requires the prosecution to work hard to present evidence of a potential public risk and the judge to carefully consider all sides; a vital check that’s substantially diminished if the judge can just deny bail for certain categories of charges. The proposed change thus removes important elements of judicial independence and prosecutorial incentives.
Changing the constitution is unlikely to make anyone any safer. But we will have eroded judicial decision-making, removed constitutional protections for people who stand accused but are presumed innocent, and taken away a major incentive for the prosecutor to be competent, fair and accurate.
Since 2008 the Global Campaign for Pretrial Justice has been trying to make certain principles clear. We point out that the rule of law dictates that people be presumed innocent and given due process before punishment is meted out. We say that pretrial release should be the norm and detention only occur when there’s a danger to the community, a risk of flight or a risk of obstruction of justice. And we acknowledge that while imperfect, bail is one of many possible alternatives to manage these risks where they exist.
In other places in the world, such as Brazil, we have seen great strides towards a justice system that is more logical, even-handed, and respectful of every individual. In Puerto Rico we see this proposal as a major set-back, suggesting a government-wide loss of faith in the institutions and officials that are meant to protect the Puerto Rican citizenry. The legislators have stopped looking for real solutions to the crime problem and instead come up with a populist proposal that in terms of effectiveness is nothing but smoke and mirrors.
Thankfully even in Puerto Rico’s desperate circumstances there are those who speak with the voice of reason. In the words of Myra Rivera Torres, president of the victims’ rights group ALAPAS:
"The needs of crime victims are, first of all, the resolution of cases; the murder clearance rate is only 35 per cent. We see shortcomings in investigations and a lack of preparedness in some prosecutors. Correcting these serious deficiencies should be the Government’s priority, but it isn’t….To enforce victims’ rights we don’t need to trample on the rights of others. We have not lost our humanity, we heal individually and collectively, and build a peaceful society to leave future generations with all the civil rights that were bequeathed to us. For this reason, we will vote NO in the referendum.”
