Posting bond before criminal trial - How can this be justified?

Great Debates
21

perhaps I’m missing something, but if you’re looking for an alternative, why not abandon the money aspect entirely?

It seems that posting money is being used as a surrogate for concerns such as flight risk, likelihood to re-offend, and so on. Why not give the judge the power to assess the application for release on those grounds? If the flight risk/danger to the community seems too high, don’t release. If release can be managed by conditions, such as interim supervision by the equivalent of probation officers, go that way.

That is the approach we take in Canada. My Beloved is a Crown prosecutor, and in about 6 years on the job, has only asked for cash bail once. As well, we don’t have bondsmen as a commercial activity - in fact, bondsmen on the US model would be committing a criminal offence here. You can only post bond/surety for another person if you have a personal connexion to them - family, friend, etc. We don’t have bounty hunters, either.

22

I pray we never adopt your system. If we had it in place, we would never had had “The Fall Guy”. And that would have been a tragedy.

::Flees::

Sua

23

Procedural info:

while for example, at the intitial arraignment, the judge may not have very much information at hand, certainly at a later point, they have access to all sorts of stuff. That’s why I cited cases where bail was set and then applications were made to have it reduced.

Repeating - the judge does in many of these cases have a very good idea of what the defendant would be able to come up with reasonably.

Milo my point about the tether is that it doesn’t provide the security one would like for things like flight risk, risk of further felonious actions. It can offer a modicom of ‘well, we’re doing something’ to assuage folks’ fears, but if the person really wants to split, they will.

But frankly, that’s also true of any bail situation, and we need to address issues of resources - which, by the way, is the other end of the arguement.

We have finite amount of space in our jails (different finite amount than the prison), in there we’re squeezing folks pre-arraignment, pre conviction, parole and other department of corrections holds, child support and other non criminal offenses, and post conviction folks.

What I see quite a bit of, are the lower end folks (petty crime, very poor), who have a high bail set, can’t make it, spend the time in jail awaiting trial, and get sentenced to ‘time served’. Happens quite a bit at least in my area. This makes allocation of bed space a difficult thing to deal with. Judges are accustomed to thinking about bed space when sentencing folks (lost of time and effort goes into this).

To make the optimum use of our jail resources, bail should be of a reasonable nature unless there is a serious risk of flight, serious risk of reoffending/violence etc. It makes no sense at all to have some one sit in a cell for 6 months waiting trial on a car theft to get a probationary sentence at the end.

24

It might go without saying, but just in case it doesn’t: I’m not in support of letting anybody out of jail prior to trial if there is a significant potential for harm to law-abiding society. Or if there is overwhelming reason to believe that person will not return to stand trial upon their release.

sailor:

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Please tell me where I said that.

By my reckoning, the Constitution requires that all have the same consideration for release before trial, not a system that inherently keeps lower-income individuals incarcerated regardless of other factors.

**
Agreed.

In theory, maybe. But I’m not sure that it’s working out that way in practice.

**
Uh, are you familiar with my ideology, as expressed previously in this forum? You’re preaching to the choir on this point.

No; I’d say money is about the only way a person can get out of jail prior to a trial, if the crime for which the person is accused is at all significant. So, it’s not a side effect. It is a focal point of the whole process.

**
Who says we can’t? How much energy and brain-power have been put into looking for an alternative?

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Who’s ranting here? And I’ve proposed an alternative.

Section I of the 14th Amendment to the U.S. Constitution says in part:

It could be argued that the “without due process of law” phrase is the qualifier for what we are talking about. As these people are in the judicial process.

But the “equal protection” sentence is set off as a separate thought or clause, and could be the argument against the present system - if money or a lack of it is causing disparate treatment of people in the judicial system. (Which is only a perception on my part.)

Sua:

**
You should have kept it in the joke realm. How can it be possible to punish one person for the actions of another? I don’t think there can be much Constitutional debate there.

25

I have a feeling we’re going around in circles beating a dead horse here. If there was a concrete alternative offered I must have missed it. If anyone has a concrete proposal to submit for general consideration I am willing to vote on it but all I see so far is comments about how unfair the present system is. So, what is the concrete proposal?

26

sailor with all due respect there have been a couple of proposals offered - that if a judge is going to set a bail that is a ‘defacto’ denial of bail, the reason should be part of the record (already required when they go outside of guidelines).

Develop guidelines to establish different levels of risk, such as they do when figuring out the sentencing guidelines.

Provide interim release conditions (such as supervision, tether etc) to insure person won’t flee etc.

27

wring, all those measures are well and good but they will in no way change a vital fact which is that rich people will get out on bail more often than those who have nothing. There is no way around this.

The main consideration for the judge is assuring the defendant returns to court. I don’t care how many new measures you institute. A guy who has money to post bail has at his disposal one more way of giving a guarantee which the other guy does not. Money is not just money, it is a tie to things which binds that person and that is what it represents to the judge. So, everything else being equal, the guy with money may get out where the guy without it may not.

The only ways around this that I can see:

(1) Let them both go. we have already agreed this would not work.
(2) Keep them both locked up. This is unfair to the guy who can guarantee his appearance by posting bail.

I don’t care how many new things you introduce, the rich guy still has greater chance of getting out. Just like a married guy with stable family life has a greater chance of getting out than a single guy and just like a guy with a history of trying to flee will have a greater chance of staying locked up.

Those proposals in no way affect the answer to the OP. There is just no other way out of this dilemma. The question is “should a judge consider posting bail as a means of assuring the defendant will appear in court?” If you answer yes then the rich guy has an advantage, there is no way around it. If you answer “no” then you are keeping a person in jail without a compelling reason to do so as he could give you a guarantee.

I think you are trying to jibe two contradictory things here and it is just not possible.

28

In today’s local news: A guy who was out on $75000 bond awaiting trial for murder has today committed another murder.

State’s Attorney Jack Johnson issued a statement today saying that when Dyre appeared in court last summer, his office requested he be held without bond. But a judge instead allowed him out on a $75,000 bond.

Shouldn’t the judge have some responsibility for the consequences of his decisions?

29

SuaSponte, forgive my ignorance, but what’s “The Fall Guy”? (perhaps my asking proves the point you were trying to make??)

sailor, as wring points out, I did try to offer an alternative - one that substantially downplays the role of money in the question of judicial release, because it seems to me that money/ability to pay is being used as a surrogate for the real questions of flight risk and danger to the community. Bail should depend on those issues, not on the amount of money a person can pony up.

I do agree with you that my proposal still gives a de facto advantage to those with money over the poor schmoes, but it is because, as you point out, those with money and standing in the community can usually make the case that they are less likely to flee. However, in some cases of particularly serious crimes it may work the other way - them with the bucks can get out of the jurisdiction and live comfortably offshore, so wealth may contribute to an assessment of flight risk.

Either way, though, the analysis looks to the true concern, rather than trying to deal with it indirectly through surety & bond.

And in answer to your question of civil liability for the bail judge - it detracts from the judge’s independence and impartiality, by tilting the process towards keeping everyone in. As soon as the judge has a personal financial risk in his/her decisions, those decisions are no longer impartial.

30

Northern Piper, the way I understand it, a judge already does what you are saying. When he sets bond at X dollahs, it is because he has considered everything, he does not just go to a scale and gets an amount, rather, he considers what amount he thinks would make that defendant want to return. So what you are proposing is what they already do AFAIK. If you think they just set an amount I believe you are mistaken.

Regarding the judges not haviong any kind of responsibility for their actions so the can be “impartial” I am not sure I buy that entirely. I could make a better case of that for other professions which have no such immunity (like doctors). I do not think it would be so bad if a judge had an incentive to be more careful with what he decides. If everybody else in society is responsible for the consequences of their actions, why not judges?

31

Milossarian says:

I think this is one spot you guys are talking past each other. Milo, the system which sailor describes doesn’t “inherently keep lower-income individuals incarcerated regardless of other factors”. You seem to think the bail values start at “too high for poor people to pay” and get higher for the rich people, but not so high the rich people can’t pay. Now, I can’t vouch for how the judges actually make the call, but the system is not inherently set up that way. If you’re poor, that’s one of the factors in the judge’s decision. If he thinks $500 is a lot of money to you, he might set the bail at $5000, expecting you to have to put up 10%.

The whole point is that the judge is supposed to attempt a balance. The amount is supposed to be enough you won’t shrug it off, but not so much you can’t afford it. It should be something you can manage, but it should really mean something to you.

Now, if you’re talking about the extreme cases, where the person effectively can’t put up any money, then you’re right: it’s sort of tough luck. But you have to understand that if a guy has nothing to offer the court to assure it he’ll be back, then the court can’t really offer its trust, can it?

The system tries to be as fair as possible, but it obviously can’t be perfect. If you want, you can find unfairness all over the place. As a silly example, consider two people with wildly different abilities to cope with being locked up. They commit the same crime and receive the same sentence. To one of them it’s a cakewalk and means nothing. To the other, it’s hell. Why should one be punished more than the other? Because we can only pick the best way we know.

32

  1. You seem to be assuming that the judge made a bad decision. How do you know? I mean, unless they keep everyoen locked up, anyone could commmit another crime while out on bail: someone with a history of writing bad checks could get released on bail and go shoot up a schoolyard. Is this the judges fault? Did he make a bad decision? Judges are supposed to have good judgement, not be psychic. The judge may have set bail for a thousand guys just like this one, identical circumstances, and never a problem.

  2. We do gove doctors some leeway. Not every case of doctor error is grounds for a successful lawsuit–every doctor makes mistakes, and the law recognizes that not all mistakes are cases of negligence. Many wonderful wonderful doctors make mistakes that kill or maim people. They already have all the motivation in the world not to do so–the fact that they don’t want to hurt anybody. But they still do, cause they are human.

33

galt, thanks for your clarification. you are very right

Manda, the main quibble I have with your post is you forgot point (3) which is a requirement, I believe, in the bylaws of this board :slight_smile:

Aas to your question “You seem to be assuming that the judge made a bad decision. How do you know?”… well… we have a dead body, that’s how I know. I for one consider that sufficient proof that the judge made a bad decission.

I do not want to hijack this thread on this side issue but, in real life people are responsible for the consequences of their actions. “I never thought this could happen” does not cut it as an excuse.
but that is not the point of this thread… The point of this thread is bail money. There is just no way around this fact: we have two groups, the rich and the poor. If you want equality of opportunity then the rich will get out on bail more just because they have an objective reason to offer the judge that they will return. If you want equality in outcome then either you lock everybody up or you have a system of quotas. In any case you keep the rich guy locked up, not because yyuo think he may disappear but because you think the poor guy might disappear. Is that fair? I don’t think so.

34

You are missing my point: the quality of a decsion cannot be determined by the outcome. I mean, buying a lottery ticket is a stupid thing to do, whether or not you win. You seem to be in favor of bail–every single time we allow someone out of bail there is a risk that that person will comit another crime. In some cases it is higher than in others, but in every case it could happen. And at some point in every judges career, it will happen. How could it not? Now I agree, a judge who shows a history of poor judgement ought not be a judge, but one incident is not evidence of anything but bad luck.

Furthermore, how would fear of punishment make judges any more likely to make choices that turn out to be correct? It is not any harder to order a man locked than it is to offer him bail, so they are presumably already making the best decision they know how to make.

35

I was wandering around the boards and I saw this dead horse of a debate here, but I actually had a de-fiburalator (sp?) to see if there is any life left.

Milo,

I think there are two different aspects to the money/bail issue you raise, and that separating them may help the discussion.

First, money, and monetary value of property, has a huge influence on pre-trial incarceration because it is the object the criminal justice system has chosen as a surrogate to ensure the appearance of the defendant as well as the safety of soceity. Money is what you give to the clerk of court as bail. We could have chosen body parts, relatives (as Sua laughingly brought up), or chickens, but money is what makes the world go round.

With this in mind, everybody with more money will avoid pre-trial incarceration. Let’s say Richie Rich kills his wife on the same day that Joe Poor does. The judge sets bond at $100,000 for both of them. Richie is going to be able to post, Joe won’t. That “unfairness” or un-equal protection is strictly the result of money being the medium which courts have considered important. There is no unfairness between Richie and Joe in the SETTING of the bond amount, but their ability to post is different. This is where you and Sailor have a problem, because Sailor, as well as I, see no other alternative to money being the thing to post. There are other alternatives, which are all included in most laws regarding bailbonds, i/e conditions of bond (drug treatment, no contact with victim, etc.) that act as sort of a surrogate for not having money.
The other facet of your concern is that the amount bond is set may be influenced by money. To go back to the example before, if (all things being equal) the judge set Richie’s bond at $50,000 AND Joe’s at $100,000, then there would be a problem, because they are not being treated the same, but, in my experience (8 years as a prosecutor), this happens very rarely in real life. In fact, it would be much more likely Richie’s bond would be set at $500,000 and Joe’s at $100,000 because of the relative value of the amount of money posted.

So, to sum up, I think once you consider both facets of your question, you’ll understand better the reasons for your concern.

36

sailor, hamlet a judge can either set a ‘reasonable bond’, or refuse to set one. The amount for a ‘reasonable bond’ would, of course, differ from Joe Rich to Jack Poor, substantially, and should also differ respectively for the seriousness of the crime, as well as other issues such as flight risk.

Yes, bails mean you have to have money. But coming up with $800 for a poor family is just as much of an incentive to show up for court as coming up with 30,000 for another, wealthier family. What’s wrong with setting a bail within the limits the person can achieve. Unless, of course, your intent is to deny bail. I am perfectly fine with a denial of bail, except when it’s camoflauged as “well, if you had 6 million sitting around we’d let you out, don’t have it, must suck to be you”.

37

wring, you are assuming the judges do not do that already while I believe they do, In any case we do not have an argument here as we agree that they should.

Manda says "Now I agree, a judge who shows a history of poor judgement ought not be a judge, but one incident is not evidence of anything but bad luck"and I agree totally. One case is not representative but enough and he should be kicked off the bench.

The decission of setting bail is very similar to that of a loan officer deciding whether to give a loan. His consideration is whether the person will pay back the loan. One case may not be representative but a loan officer who gives many loans which later default is not going to have his job very long.

Anyway, it seems we pretty much all agree here… there must be some misunderstanding somewhere :slight_smile:

38

Early 1980’s American television adventure show, starring Lee Majors (best knows as the star of ‘The Six Million Dollar Man’) as a professional movie/TV stuntman who moonlights as a bounty hunter. Aren’t you glad you asked?

39

**
sailor, you’ve been misrepresenting the arguments of those opposed to your viewpoint repeatedly. And they keep steering you back on track. And you keep veering right back to the misrepresentation.

If those who feel basing it all on money causes an equal protection disparity between rich and poor, get your argument off money, if you’re going to represent their viewpoint.

In other words, no it doesn’t mean “Then you lock everybody up, or you let everybody out on bail.” In other words, no it doesn’t mean, “the rich guy locked up, not because you think he may disappear but because you think the poor guy might disappear.”

Following your logic, one might say, “This whole thing about the poor having a right to legal representation is completely unfair. Why should the rich go without a lawyer, because the poor can’t afford one?”

Of course, that’s not the way it works. We make allowances for the fact that individuals cannot afford attorneys, because (now pay attention), ** the U.S. Constitution MANDATES that rich and poor have equal rights in this realm.**

Why is it so far-fetched to imagine a similar system, where an individual shows he can’t afford a meaningful bond amount; the judge weighs the other (very important) criteria, such as the potential threat to society, and then authorizes some sort of a monitored, meaningful tether?

40

Milo, what you are proposing is what they are already doing and that is what I have been saying all along. I agree with you its should be done like that and AFAIK it is already being done like that so I can’t see what your complaint is then. We both agree with how it should be done and that is the way it is being done. Everybody’s happy now.