How does the law reconcile the "innocent until proven guilty" principle with the treatment of those awaiting trial on criminal charges?

At least in the U.S., it seems like there is a meta-criminal-justice system in which merely being accused of a crime is enough to land a person in prison.

An illustration of this is the case of Michael Avenatti: While he was out on bail awaiting trial, prosecutors accused him of committing additional crimes (while on bail). The judge agreed with the prosecutors and revoked his bail:

At the end of the court hearing, Judge Selna said he agreed with prosecutors that Avenatti’s handling of the $1 million was probably illegal. He said he also agreed that Avenatti posed an economic danger to the public if he remained free on bail, because he was likely to keep committing crimes. “I believe that the danger to the community is real and palpable,” Selna said.

I understand that the bail system is discretionary, but AFAIK the legitimate purpose of imprisonment awaiting trial is to ensure that the accused appears for trial. Here we have an example in which a person's freedom awaiting trial was curtailed based only on an accusation of illegal behavior, not based on a legal conviction for committing a crime.

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    As far as I understand it, protecting the public from new crime is also a legitimate purpose of pre-trial detention.
    – phoog
    Jul 8, 2021 at 17:34
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    Suppose people who committed crimes couldn't be detained prior to trial even if they were flight risks. We'd have no convicts because no one would show up to their felony trials.
    – ohwilleke
    Jul 8, 2021 at 21:34
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    @ohwilleke I understand that as being the proper purpose of imprisoning someone charged with a crime. In the example given, it does not appear that there was a change in the factors relevant to assessing the risk of Avenatti failing to appear for trial. Instead the judge revoked bail because he agreed with prosecutors' assertions that Avenatti "probably" committed new crimes.
    – feetwet
    Jul 8, 2021 at 21:48
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    FWIW in the UK the Bail Act of 1898 effectively made the use of financial bonds discretionary (based on the accused's financial situation) and after the Bail Act of 1976 they are rarely used. They are replaced with measures such as electronic tagging, surrender of passports, living at a particular address, not contacting certain other people, reporting to police regularly, etc. Failure to comply with the conditions is a criminal offence punishable by a custodial sentence (and of course that is independent of guilt or innocence of the original alleged crime).
    – alephzero
    Jul 9, 2021 at 2:29
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    Prison only happens after felony convictions. Small crimes and pre-trial detention happen in jail, which is different in severity. I knew of someone who refused to bail out, and stretched out their trial years and years, so they could accrue "time served" in a pretty good jail instead of a rough prison. Jul 9, 2021 at 13:24

5 Answers 5


The concept of "innocent until proven guilty" is inherent in our constitutional protections for due process.

As far as I know, the Supreme Court first formally recognized it as a rule in Coffin v. United States, 156 U.S. 432, 458-59 (1895):

Now the presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven to be guilty. In other words, this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created.

The key phrase -- for purposes of your question -- is "sufficient evidence." At a criminal trial, sufficient evidence consists of proof beyond a reasonable doubt on “all the essential elements of guilt” In re Winship, 397 U.S. 358, 361 (1970).

But if the government wants to lock up a defendant pending trial, the question is not whether the defendant is guilty of the charged crime, but rather whether he poses a danger to the community and can be trusted to appear for trial. 18 U.S. Code § 3142(e)(1). And on those questions, he retains the presumption of innocence, but the government's burden of proof when arguing otherwise is substantially lower. The courts recognize both the potential of fleeing from the court and the prevention of additional crimes as legitimate bases for pretrial detention.

In cases like Avenatti's, where the government is seeking pretrial detention because the defendant is a danger to the community, it needs to prove by clear and convincing evidence "that no condition or combination of conditions will reasonably assure the safety of any other person and the community." 18 U.S. Code § 3142(f)(2).

However, if the government is seeking to hold the defendant because it does not believe he will appear for trial, it need only prove its case on that question by a preponderance of the evidence. United States v. Martir, 782 F.2d 1141, 1146 (2d Cir. 1986) (“For detention to be proper, the government had to prove by a preponderance of the evidence that no conditions of release would reasonably assure Martir's attendance at trial.”).

As a side note, I'd agree with some of the answers that in practice, the bond system is regularly abused to the point that its underlying principles become unrecognizable. My answer is meant only to address the actual legal rules your question implicates.


Innocence and guilt has nothing to do with remand or bail

The common law presumption of innocence and the right not to be incarcerated without due process are not at all incompatible.

The Constitution prescribes imprisonment in both the Fifth and Fourteenth Amendments respectively:

No person shall [...] be deprived of life, liberty, or property, without due process of law.

[...]nor shall any State deprive any person of life, liberty, or property, without due process of law.

The application of bail laws is "due process of law"

The law assumes that you are innocent and also allows you to be imprisoned while that assumption is tested.

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    Specifically, it allows you to be incarcerated while that assumption is tested if and only if probable cause can be demonstrated that you probably did or were probably about to commit a crime, per the 4th Amendment. If probable cause can't be demonstrated, then you can't be charged in the first place. Or at least that's how it's supposed to work...
    – reirab
    Jul 9, 2021 at 22:24

How does the law reconcile the "innocent until proven guilty" principle with the treatment of those awaiting trial on criminal charges?

Bail is all about a proportionate response to risk management—not guilt or innocence.

The higher the risk the more severe the conditions, culminating with it being denied and the suspect remanded to custody.

For sure, people commit (suspected) crimes every day of the week but, when someone comes under the custody and control of the police or courts, they have a responsibility to mitigate the potential risks to victims, witnesses, society, and the criminal justice system—not just to ensure the defendant is available for trial.

ETA in response to these comments (and others now deleted):

How does having the money to pay for bail make someone less of a risk to society or less of a flight risk? Why does a bail bondsman get to decide who among the people who can’t pay bail outright should be released? It seems more like buying an indulgence than risk mitigation.

It may be worth including your comment explanation in your answer just to prevent others who may be sensitive about bail issues from misunderstanding. I read the question and your answer, but somehow was just in the wrong mindset to see what it was really about until I re-read everything.

The OP asked about how bail can be reconciled with the presumption of guilt, not about the failings in the American criminal justice system or one's ability to pay a bond—Both are different questions entirely and potentially better suited to PolicticsSE.

Michael Avenetti (the subject of the OP's linked article) has had his bail revoked despite having a net worth of $80 million.

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    @ColleenV you do know that you get the money back if you comply with your conditions of bail and lose it if you don’t?
    – Dale M
    Jul 8, 2021 at 21:29
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    @DaleM Sounds like you're trying to agree that bail biased in favour of the rich but can't articulate it. Jul 8, 2021 at 22:32
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    @Studoku the whole legal system is biased in favour of the rich and well-educated - I have no trouble articulating it
    – Dale M
    Jul 9, 2021 at 0:59
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    @ColleenV The concept that "bail" is mainly about "how much you can pay" is USA-specific. The rest of the world does things differently.
    – alephzero
    Jul 9, 2021 at 2:35
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    @RockApe his net worth is likely part of the reason his bail was revoked. It's easier for wealthy people to flee, and losing your bond is less painful when it's a smaller percent of your total wealth.
    – Ryan_L
    Jul 9, 2021 at 16:25

This is a clear example of a legal fiction. Which is to say that it is a situation in which de jure and de facto views are entirely different.

The de jure view is that bail is not a punishment, but rather it is a partial benefit. It allows a person to await a trial outside of a confinement of a jail, but it does mitigate the risk of their not showing up for trial by making sure that if they don't show up, then the state will be compensated for hiring extra help to retrieve them.

Additionally, simply being placed within the confines of a jail has been deemed to not be quite the same as a punishment because it doesn't attach numerous civil disabilities which come with a criminal conviction. Rather it is an action necessary for the administration of a state. This puts it on the level with police blocking a road. People waiting to move have not committed any crimes and yet they remain confined within their cars and unable to proceed while the road is blocked.

The de facto view, of course, is that everything that comes with a formal accusation is punishing. Even if one were to make bail and be found innocent at trial, it may still require exorbitant legal fees. After all, because the legal system is inherently adversarial, retaining services of a capable attorney means outbidding others willing to pay for the attorney's services.


Notionally, bail isn’t about guilt, it’s about showing up for the trial. That is why accused murders can get bail. What isn’t covered in any way is the disproportionate impact it has on the poor and how it can be abused.

For instance, Joel Rosenberg a 2nd amendment activist, was arrested a month after his supposed crime was witnessed by a cop in a court house (his supposed crime was having a gun in court house, and they argued the legality of it at the time, the cop asked him to to please put the gun in his vehicle, which he did and then they had a meeting). After posting a video making fun of the cop, he was arrested and was given a $100,000 bond. Note that his bail was greater than others have paid for armed robbery. And he was essentially zero flight risk, and the arrest was clearly retaliatory.

If you can afford it and show up, you get all of your money back, innocent or guilty. But if you are like most people, and can’t afford it and use a bailsman, you’re out 10%. Most people don’t have $10k to throw away or $100k to set aside for an indefinite period of time.

In most states, multiple unpaid traffic fines can lead to arrest and require bail. Since they probably would have paid the fine if they could have afforded it, people frequently go to jail because they don’t have the 10% and don’t have someone willing to donate the 10% or front the entire amount.

Bail has become a form of pre-trial punishment for the poor, while becoming a joke to the rich. Roman Polanski jumped bail in 1978 and has spent the next 4 decades living large.


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