A recent Pioneer Press article on Amy Senser’s pretrial release fostered some misconceptions which, as a criminal defense attorney and especially as a small-firm attorney, I found very troubling. The article pointed out that Amy Senser spent zero time in jail after arrest or awaiting trial, while others spent up to 290 days in jail. The rather reckless conclusion in that analysis was that Amy Senser did not spend enough time in jail, and that her status allowed her to get off lightly.
Why wasn’t the conclusion shock and dismay that someone had spent 290 days – 10 months! – behind bars before they had even been tried for the crime? By law, conditions of release in Minnesota are based on two things: the public safety interest in preventing the defendant from reoffending, and the court’s interest in making sure the defendant appears to face the charges. To ensure those interests, the courts will release a criminal defendant who is willing to post bail. The exchange is explicit: reoffend or fail to show up for court, and we will take away something valuable to you.
Unfortunately, many people often have nothing more than their personal freedom that they can offer as collateral against the possibility of reoffense, and insurance that they will show up in court to face the charges against them. And setting aside the rather staggering social problem that so many people have so little of value to their name, this pretrial confinement leads to a lesser-known but more insidious problem.
Because of backups in the criminal justice system and the burden on overworked judges, public defenders and prosecutors, criminal trials usually occur months or in some cases years after the defendant is arrested and charged. Often – too often – those charged with crimes who cannot afford to post bail spend so much time in pretrial confinement that they have already served their likely sentence before they have even been tried. They are then faced with a choice: plead guilty now and you will be released, because you have already served your time behind bars (time spent in pretrial confinement counts against any eventual sentence). Maintain your innocence, however, and remain locked up until trial, which might still be months away. These aren’t the clients who can afford to hire large, high-profile defense firms. The vast majority of these cases go to public defenders and solos. We are the ones faced with presenting this difficult choice to our clients.
The cost of maintaining their innocence is high when criminal defendants know that, perversely, they will spend more time in jail for maintaining their innocence than pleading guilty. Pleading guilty, however, comes with collateral consequences: a criminal plea might later prevent you from getting a job, housing or educational loans. For small-firm attorneys, whose cases are rarely the high-profile cases into which the prosecutor wants to put a lot of the state’s time and money and therefore cases they may be much more willing to settle, the chance of those consequences can be high, and the cost of maintaining innocence higher still.
In a thoughtful article on pretrial confinement written in 2007, then-Chief Judge Lucy Wieland of Hennepin County, the same county where Amy Senser was tried, addressed the issue of what judges have to consider when determining the conditions of someone’s release. Tellingly, the judge did not address or even list “whether the defendant is guilty” as a factor in release. In fact, she expressly pointed out that “[b]ecause everyone in our society is presumed innocent, a person charged with a crime can not be held in jail pending trial simply because they’ve been charged with a crime.”
In this case, Amy Senser is guilty. The reason I know that is because she was tried by a jury and convicted. She should go to jail for that offense – even defense attorneys have a sense of right and wrong. But the conclusion from the article was that she was given too much leniency by the court because of her status – before she was found guilty. The conclusion should have been exactly the opposite: not that she spent too little time in prison, but that too many in this system spend too much. Until we start making more noise about this issue that so disproportionately affects public defender and small-firm clients, public perception is likely to remain the same.