On the matter of bail (particularly as it relates to the Waukesha suspect)

In My Humble Opinion
1

Continuing the discussion from Dozens injured in Waukesha, WI at Christmas parade [update: 6 dead, over 40 injured]:

Separate topic in order not to derail the MPSIMS thread.

The Waukesha suspect’s bail was set at $5 million. In this specific case, this means the same as “no bail”. But what if this guy had been rich and easily able to put up that kind of money? (In fact my understanding is that the bail amount is something of a fiction anyway, as I believe you only actually need to put up 10%.)

So is the judge effectively saying, “despite your very long criminal record, including a history of bail-jumping, and despite the horrendous thing you just did, you may go free until trial and carry on doing all the things you’ve been doing (including flagrant lawbreaking like stabbing and public endangerment)”? Is there some strange legal reason that bail has to be set, albeit in a ridiculous amount, rather than being denied?

The other aspect of this is how someone would be treated who was, in fact, wealthy enough to afford such bail. There are certainly very wealthy people who go around flagrantly breaking the law, including perpetrating violent acts of assault and homicide. I can see only two possibilities, neither of them good.

One possibility is that said wealthy individual would be assessed a much higher bail, or denied bail altogether, which contravenes the principle of equality under the law.

The other possibility is that said wealthy individual would, in fact, effectively be able to buy his freedom, while the less wealthy individual would remain in jail awaiting trial. This also seems to contravene the principle of equality under the law, but through a mechanism that seems particularly endemic to America: the administration of justice according to ability to pay.

I just find it all very strange.

2

This is the only part I want to address. If you pay your own bail, you pay the whole thing and when you show up for court you get the whole thing back. It’s a monetary incentive to show up.

What actually happens in most cases is that the defendant doesn’t have that kind of cash lying around, so they go to a bail bondsman. The bail bondsman gives the defendant a loan for the amount of the bail, and charges some percentage for the loan. That’s where the 10% comes from. But that is a non-refundable fee to the bail bondsman for the loan, not some amount the state is taking in lieu of the full bail. In this case, the monetary incentive to show up for court shifts to the loaner. That’s why bail bondsmen sometimes chase down defendants who skip bail. It’s the only way for them to get their money back.

3

Nothing strange at all, it’s just a way to fuck over powerless people, or if we’re being charitable, it’s the justice system’s complete disinterest in the welfare of the accused.

With this incident, the fact that he was out on low bail, the thought process is that this guy who was accused of a violent crime should definitely sit in jail for potentially months or years BEFORE the State proves he committed a crime and BEFORE he’s given a chance to defend himself. Or, if not definitely sit in jail, at least have to pay lots of money to get out, because that somehow would ensure he doesn’t flip out and commit more crimes in the future.

NJ apparently got rid of cash bail, and isn’t awash in crime… it’s the most densely populated state and is below the national average in violent crime and property crime.

4

Bail has nothing to do with dissuading people from committing crimes. It’s sole purpose is to ensure they show up for trial.

Note that I am not making any assertions as to its effectiveness, only the purpose.

5

Tell that to the bunch in the Waukesha thread who think it’s insane that the man was out on a low bail in the first place.

6

It’s already been discussed there:

7

If it’s “insane” for someone to be out on a low bail, it was insane for bail to be offered in the first place. The whole point of bail is to allow the defendant to get out, but provide enough financial incentive that they won’t skip town.

I tend to agree that he should not have had bail then, and he should have bail now. I’m not sure why they prefer to set bail really high rather than just not allow it, but I suspect it’s easier to do that then deny bail. But it may also just be to make a statement—high bail gets more press.

8

There are also jurisdictions where “hold without bail” is limited only to some specific set of charges, or just is not an opition like in my original home location of PR.

9

I was wondering the same thing. If he’s too dangerous to set free then why set ANY bail?

10

I think you meant “should not have bail now”?

11

A lot of it is frankly just because the cash bail system makes little sense, and has evolved in a number of illogical and shitty ways, it is also frequently a cudgel used to force plea arrangements. The cash bail system has a number of problems, most of them fall on the side of fucking over defendants, but OP somewhat hits on the smaller problem of how they sometimes fuck over society–with cash bail a dangerous person with money is going to be able to get back onto the streets and potentially cause more problems, even with a high bail. Statistically this isn’t as much of a problem as the other issues around cash bail.

A far more logical system would be to have no cash bail system at all, and instead have some sort of formalized assessment process where you have some set of criteria, if a defendant hits certain criteria then the courts can order they be on 24/7 ankle monitoring home confinement, if they hit other criteria, maybe they can simply be incarcerated until their trial has completed, but if they don’t meet those criteria, they are released on their own recognizance.

Fine tuning this system and making sure appropriate constitutional safeguards etc are followed is non-trivial, but probably worth it to eliminate the outdated and abusive cash bail system.

12

That’s kinda what happens in the UK. Bail isn’t a cash bail, it’s a set of procedures you need to follow whist awaiting court (such as curfew, handing over your passport, or wearing an ankle tag etc). If the judge/magistrate thinks you’re a danger to the public or will skip bail, you’ll be held on remand in prison until your trial.

13

Without expressing my opinion on any of this, I will simply attempt to answer this factual question. Is there a reason bail has to be set? Yes, there is:

[quote=“Eighth Amendment to the U.S. Constitution”]
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[/quote]

14

Thanks for the responses so far. It does seem like the bail system is badly dysfunctional and unjust.

I did some Googling to try to answer one of the basic questions I raised, the one about why bail was set at an astronomical amount rather being denied altogether, which would have been the logically required thing to do, and would have assured that all dangerous offenders, rich or poor, would be treated equally.

I found many articles calling for bail reform, but they were mostly focused on the question of why this guy had his bail set so low, especially the second time around. I also found this, which I agree with and which is consistent with what several other posters have said:

But the movement to reduce the dependency on cash bail or eliminate it entirely is based on the idea of returning bail to its true purpose: to make sure that people who are charged with crimes behave appropriately while they’re free and return to court to face their charges. Pretrial detention should be reserved for those who show themselves to be too dangerous to be freed. Instead we have a system where who goes free often depends not on dangerousness or flight risk but who can pay the money. The end result: Millions of people who have not been convicted of crimes end up serving the equivalent of jail terms because they cannot afford the cost to get out.

The Fifth Amendment requires due process before a person can be punished for a crime, but cash bail often turns the system on its head. People stuck in pretrial detention often end up pleading guilty or accepting bad plea deals because it’s the only way to get released.

The goal of bail reform is not to free people like Brooks. The goal is to make sure the court system focuses on people like Brooks.
Conservatives Should Resist the Urge To Blame Bail Reform for Waukesha Parade Deaths

I’m not seeing this. In fact I’m seeing the opposite. $5 million bail is “excessive” by any reasonable definition. OTOH, being remanded without bail while awaiting timely due process if one is deemed a danger to society doesn’t violate that right or any others.

15

There isn’t, as far as I am aware, a general comprehensive answer for what you are asking. The constitutional jurisprudence around excessive bail leaves huge amount of discretion to judges. States and some localities have strictly codified bail codes and those can explain some outcomes, in many jurisdictions bail is substantially controlled by the discretion of the presiding judge, and in some jurisdictions, there may not be any actual legal reason for setting $5m bail versus saying no bail, in many jurisdictions such things are just genuinely up to that judge. In some jurisdictions justifying no bail has a codified bar, and the judge may just set a very high bail in lieu of messing with that, but again–there is no comprehensive answer. If you want background on a specific case and why its bail was set, you’d have to do research into that State’s laws, find out if it has any varying locality laws, and investigate it. That would show if it’s purely discretionary or if there are bail standards in code.

16

It’s not exactly true that New Jersey got rid of all cash bail. Cash bail is reserved for those who fail to show up for traffic court. Almost everyone else walks out as soon as they are processed for a crime.

17

That’s not completely correct. Of course with the normal disclaimer that each state is a little different. Back when bail was more common in my state each warrant issued by the judge would note if 10% was allowed. Most of the time bail was the full amount but it was up to the judge to allow the 10% option. If it was allowed the defendant did indeed only have to put up 10%. If bail was $1000 the defendant could get out by putting up $100. I never understood the point but it did happen sometimes. Bail bonds were completely different. Whatever arrangement they made together was between the defendant and the company. It was usually 10% but also some collateral. The bond counted as full bail. The 10% option was not needed on the warrant for a bond to be allowed.

18

Additional bond conditions may be placed on a defendant in an American court, too. Besides being required to post a bond, a defendant may be required to wear a GPS monitor (with “no go” zones, usually where a victim or witness is likely to be found) or a CAM (continuous alcohol monitor), receive a “no contact” order, be confined at home, not be allowed to leave the jurisdiction, etc. Generally, the law grants leeway to impose whatever is reasonable to ensure public safety.

If somebody violates the bond condition, bond can be revoked by the judge and the person can sit in jail to await trial.

19

I have never heard of this. That is exceedingly odd.

20

Is that in addition to cash bond, or in substitution for it?