05/24/2011 04:30 pm ET | Updated Jul 24, 2011

DSK and Bail: But Aren't the French Right?

The circus surrounding the arrest of Dominique Strauss-Kahn (DSK, as the French call him) for allegedly sexually assaulting a chambermaid in his Manhattan hotel has begun to subside. He has been indicted by a grand jury, is at liberty under extremely rigorous bail conditions, and faces serious felony charges that would give any guilty man pause for thought about fleeing the jurisdiction.

When he was arrested over a week ago in his first-class seat on a plane about to take off to Paris, the District Attorney -- feeding a salivating media -- demanded that DSK be remanded to jail instead of getting bail. The very able judge agreed, and DSK became an inmate at New York's version of Devil's Island. The French press, with a degree of self-righteous pomposity, decried DSK's treatment by U.S. law enforcement, claiming, among other things, that denying him his liberty without any formal proof of guilt and the rush to judgment of his guilt were monstrous injustices that shamed the U.S. justice system in the eyes of the world.

The French do have a point. Why no bail? Was the district attorney merely feeding the media frenzy? To be sure, the district attorney told the judge that DSK had been arrested on board an airline about to depart for France, a country that does not extradite its citizens. That reason alone shows that DSK presents a huge risk to abscond before his trial. The District Attorney did not, in the process, however, tell "the world" that DSK had apparently booked this flight about a week earlier, had called the hotel from the airport, and that the defendant offered the District Attorney before his arraignment to undertake extremely onerous bail conditions to ensure that he would not flee. Indeed, on review several days later, the administrative judge granted bail, conditioned on DSK posting a $1 million dollar bond, a $5 million dollar insurance policy, wearing an electronic ankle bracelet to monitor his movements that would restrict him to an apartment under supervision of a private investigation firm authorized by the court, surrendering his passport, and waiving extradition back to the United States if he managed to flee. So, a now fully apprised judge prevailed, reminding the world that the United States does indeed believe in due process, fair play and justice, notwithstanding alleged conduct from an international big shot that all people, including the French, would consider despicable if it turns out that he is guilty.

But the controversy surrounding DSK's bail raises a far more fundamental question. What is it about the bail bond system in the U.S. that for many critics -- including, judges, prosecutors and bar associations -- is so odious, so unfair, and indeed one of the dirty secrets in criminal law? To be sure, the U.S. Constitution in the Eighth Amendment states tersely: "Excessive bail shall not be required." But while bail is typically used to assure that a person accused of a crime and is released from custody returns to court to answer those charges, the courts have never held that there is a "right" to bail.

Nevertheless, surely the French have a point where, for example, in the U.S. federal courts bail can be set on a showing that the defendant will in some way be "dangerous," a showing on which the defendant, in some cases, carries the burden of proof. Still, historically, bail has been about "flight risk," not preventive detention, and the reason high bail might be needed for someone like DSK is because he might pose such a risk given his abundant resources, not because there is any serious concern he would run amok in hotel rooms around New York while awaiting trial.

But beyond that, the concept of a person charged with a crime and presumed innocent having to pay a fee to a bail bondsman -- who then decides if the defendant is a good bail risk -- to gain his freedom while awaiting trial is almost unheard of anywhere else in the world. In fact, in many countries, including England and Canada, agreeing to pay a defendant's bond for a fee is a serious crime, similar to tampering with a witness or bribing a juror. Alternatives include deposits to courts instead of private businesses, pledges of land or other property, and sworn promises to return to court.

The U.S. bail bond system has been shadowed by numerous well-documented accounts of serious abuses of bail by bondsmen. These lightly regulated businesses have been accused of retaining the collateral -- cash or property -- that persons must put up to get a bond, even though they are required to return the collateral after the case is over. And in some circumstances, bail bondsmen (some of whom fancy themselves as quasi-cops), can decide on their own that they don't like the defendant's behavior and revoke their bond, thereby putting the defendant back in jail (although the bail bondsman gets to keep the fees).

There's virtually no legal accountability and the bail bond industry has proven difficult to regulate effectively. For one thing, much of what goes on between bail bondsmen and their clients occurs in private. In such a climate of secrecy, it should not be surprising that allegations of corruption have clouded the commercial bail bond business, including accounts of collusion between bail bond companies, judges and police officials. And then there are the stories of bond enforcement agents hired to capture persons who have failed to appear in court -- the so-called "bounty hunters" -- who operate outside the legal system, and who are notorious for breaking into people's homes without a warrant, holding innocent people against their will, coercing statements, and forcibly taking people across state lines in violation of state extradition processes. The Fourth Amendment does not apply to such bounty hunters because they are not public employees.

But more egregiously, there is the serious inequality that historically has haunted the bail system. As with so many other aspects of the criminal justice system, the kind of justice a person gets often depends on the amount of money he has. To be sure, every poor person charged with a crime gets a lawyer, and has some typically meager opportunity for expert and investigative assistance. But not every defendant is a wealthy aristocrat like DSK, who can afford to post a million dollar bond.

Most criminal defendants, in fact, are poor people who can't afford bail and have insufficient means to get a bail bondsman to put up a bond. These defendants -- accused of crimes but "presumed innocent" -- remain incarcerated awaiting trial, sometimes for months, sometimes for years. The prejudice to their cases from their inability to gain their freedom pretrial is extreme. Sitting in their jail cells, they have no ability to investigate their cases or assist their lawyers, except in a limited and superficial way. They enter the courtroom from their cell, and stand before the jury not as free men walking in from the street, but attired in prison garb, with court officials surrounding them to assure they do not flee.

And worst of all, far too many poor, innocent, defendants actually plead guilty to criminal offenses because the bail set against them is high and unaffordable by them -- and they are forced to languish in jail awaiting trial recognizing that, if acquitted at trial, they will have served all that time for naught. Thus, arraigned defendants who can't afford bail while awaiting trial are too often effectively told, for example: "plead guilty and be sentenced to 30 days beginning today; if not, we'll adjourn the case for 45 days for the lawyers to file and litigate pre-trial motions." That innocents faced with such a draconian choice often plead guilty is not surprising, but it is nonetheless disgraceful.

The ultimate bail result that DSK received was the correct one -- even if the forensic evidence, as is being reported, begins to pile up against him. Given the severe restrictions placed on him, he is unlikely to flee. Still, the controversy surrounding Strauss-Kahn should cause us to rethink how our system works for the average defendant in the United States. And frankly, we don't need any help from the French.