The Sixth Amendment lost; or, there are no speedy trials and posting bail is un-American

Hello and welcome back to our series on the amendments in the Bill of Rights. We’re over halfway there as we turn to the Sixth Amendment. The name isn’t immediately familiar, like the First Amendment or the Fifth Amendment, but its content is:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Yes, the right to a speedy trial. As justice delayed is justice denied, one of the key rights Americans in the 1780s wanted specifically protected in the Constitution was the right to a speedy trial. This was no doubt influenced by the Coercive Acts Britain enforced on the Thirteen Colonies after the Boston Tea Party, one of which was the Administration of Justice Act that said any royally appointed official in the colonies who was accused of a crime would be sent to England for trial if other royal officials decided he could not get a fair trial in Massachusetts. This not only meant that the accused official would likely be acquitted, but that American witnesses for the prosecution had to sail to England to give their testimony. It was not only expensive but time-consuming—it was a two-month journey from America to England. The Act said those witnesses would be repaid for the expense of the ocean voyage, but not for lost income while they were in England for 6, 12, or 18 months. George Washington referred to this Act as the “murder act” because it potentially allowed British officials to get away with murder in America by allowing them to be tried in England.

There’s nothing speedy about waiting two months to get all the participants in a trial to the court, then waiting your turn for your trial to be heard, then spending two months sailing back. And what if you wanted to appeal the ruling? Even more time.

So this Amendment to our Constitution addresses that problem in two ways: by saying trial must be speedy, and by saying the accused must have an impartial and local jury. The Sixth also says people must be told what crime they are charged with, be allowed to face the people testifying against them, be allowed to call witnesses in their own defense, and be allowed a lawyer.

These are all massive leaps forward in legal justice that derive from Puritan Massachusetts legal precedent but were not in practice in all Thirteen colonies by the 1700s. The Sixth is a very important amendment, so it’s odd that it is so unknown to most people.

It’s unfortunate that the Sixth Amendment is regularly violated by our own legal system in two ways: first, trial is not speedy; second, we make people post bail.

The average time between sentencing and trial in this country today varies by the crime someone is accused of, but it’s never short. Someone accused of a non-fatal car accident (damaging property) can generally count on 2-2 1/2 years between filing and resolution. If it’s a criminal case, it’s much longer. According to The New York World site, “a backlog in the Bronx that leaves accused felons waiting in jail for as long as five years before their case is heard. The average time to resolve a trial in that borough has increased dramatically, from 733 days in 2008 to 988 last year.”

The problem here is that justice is being delayed, which already means it’s being denied, but it gets even worse: where does someone accused of a criminal act wait those five years? As the NYW site says, they wait in jail. We don’t think twice about this because we’ve been doing it so long. But why on Earth should someone be imprisoned before they are found guilty of a crime? Jail is for convicted criminals, not people awaiting trial.

It’s a holdover from our past, the early 1800s, when the wait for a trial was a few days at most and the authorities wanted to make sure the accused showed up for trial and didn’t skip town. It seemed reasonable to have them wait in jail those few days. As the wait got longer, we came up with a horrible solution: posting bail.

As we point out in our post Posting bail is un-American,

This seems like a very small thing. If you’re arrested, you can post bail to stay out of jail until your trial. That seems fair.

But it’s not fair, because it gives those who have money an advantage over those who don’t. If you’re rich you can post bail; if you’re poor, you can’t. So poor people go to jail, while others don’t.

And if you are accused of a horrendous crime, like murder or child sexual assault, you have to post a much larger bail, maybe tens or even hundreds of thousands of dollars. This only guarantees that wealthy people will not be imprisoned while awaiting trial no matter what they are accused of.

Why should anyone have to pay to stay out of jail when they haven’t been convicted of a crime? The only reason this terrible system remains in place is that bail money helps fund state governments. If we got rid of bail, we’d have to pay to hire people to monitor people awaiting trial to make sure they don’t try to run away, and it seems that no state is willing to spend money to uphold justice in this case.

On the radio just this morning, we heard a story that New York City is considering ending cash bail for low-level crimes. People accused of very minor crimes—accused, not convicted—are sent to the pit of hell that is the Rikers Island prison to await trial. And await, and await: thousands of people are awaiting their trial at Rikers because they are too poor to post bail. One man was accused of stealing a backpack and was expected to pay $3,000 to post bail. He could not, and spent three years in Rikers awaiting trial, where he was routinely beaten by inmates. The charges against him were finally dropped, and he was released: this means he went to jail for not committing a crime. He killed himself shortly after being released.

Putting innocent people in jail for years is wrong; putting people whose innocence or guilt has not been established is wrong. Both violate the Constitution. So it’s amazing that we do it with almost zero public outcry. There are groups working to end the bail system that you can join if you would like to turn that around and uphold the Constitution and the Sixth Amendment right your forefounders demanded.

Next time: the right to trial by jury