Bail and the burden of weak accountability

There are two recent developments that bode well for the future of the Philippine criminal justice system. One is the Supreme Court’s announcement last week of its openness to custodial hearings, which would allow trial courts to determine at the outset whether an accused may be placed under alternative modes of detention such as house arrest or hospital arrest, among others.

Another is the filing earlier this month of two substitute bills in the House of Representatives seeking to revise the 1930 Revised Penal Code. According to public prosecutor and criminal law expert Fred Nojara, the substitute bills superseded the original bills that presented the UP Law Center’s draft Code of Crimes.

As regards the development announced by the Supreme Court, if pursued seriously, that reform directly addresses a long-running driver of jail congestion: preventive imprisonment that stretches for years because people cannot post bail, in a system already strained by lack of judges, prosecutors, and public defenders to process cases efficiently.

In many jurisdictions abroad, pre-conviction confinement of individuals accused of a crime is not the norm. As my lawyer-friend, a noted criminal defense attorney, pointed out in a social media post, bail is supposed to balance society’s interest in pre-conviction detention with the personal liberty of the accused, many of whom may yet be declared innocent, including the sick and the poor.

Some people can be released on recognizance, but in our system the process is so cumbersome and limited. We mostly think of release as something obtained only by posting cash or surety bail. In other jurisdictions, release can be secured through non-monetary conditions such as travel restrictions, regular reporting, no-contact orders, curfews, electronic monitoring, or confinement to a residence or hospital when warranted. Detention, as it should be, becomes the exception, reserved for cases where no set of conditions can adequately manage the risk.

What makes the situation even more problematic here is the overcrowded and degrading conditions in our detention facilities. And when an influential person is detained, we even complain about “special treatment”, as if to say everyone deserves squalid and overcrowded conditions while awaiting trial, instead of pushing for ways to improve and decongest our jails. The “pre-conviction detention” turns into a penalty imposed before guilt is proven.

A custodial-hearing framework as mulled by the Supreme Court can be a broader shift for rationalizing the use of custodial measures and expanding non-custodial options to reduce the human-rights costs of our detention conditions.

Our bail system is too gravity-driven, as it tends to hinge first on the seriousness of the charge, and only then on the risk of flight. We often treat the gravity of the offense as a proxy for flight risk or danger to public safety, which is not necessarily true in many cases. Custodial hearings and structured alternatives to detention can make the system more rational by grounding decisions on individualized risk, not on social status or the seriousness of the accusation alone.

But at the bottom of it all, our problematic pre-conviction regime is also cultural. In a community with a tight sense of accountability, the criminal process has social force. People are expected to show up, comply, and face the case because evasion carries real social cost and little refuge. Flight therefore becomes the exception.

In the Philippines, we often tolerate the opposite atmosphere. People learn, by habit and by example, that accountability can be negotiated, delayed, or avoided, and that the community will look away. That loose culture compels the pre-conviction regime to become more restrictive, and often more irrational, as a way of compensating for weak accountability.