Thursday, March 7, 2013

Bail, Pretrial Justice, and Money

 Bail, Pretrial Justice, and Money

This is a recent entry from a blog sponsored by the Bozeman (Montana) Daily Chronicle. At the end of this blog, I’ll give you the rest of the story and tell you how the motion panned out, Paul Harvey style.  

County attorney wants accused Taco Bell shooter's bail increased
Whitney Bermes, Chronicle Staff Writer
Posted: Jan. 25, 2013 10:40 a.m.
Gallatin County Attorney Marty Lambert thinks the bail for a man accused of a shooting at Taco Bell is too low. So he wants it increased fivefold.
Nathaniel John Budd, 22, was arrested Dec. 1 after police allege he shot a woman twice in the Taco Bell parking lot following an argument.
Budd was held in the Gallatin County jail on $100,000 bond. He was released on Jan. 7. 
In a motion filed Jan. 22, Lambert asked District Court Judge Holly Brown to increase that bond to $500,000.

It illustrates three common points of misunderstanding in the administration of bail, which deal with (1) constitutionally valid purposes of conditions on pretrial release, (2) money and public safety, and (2) the arbitrariness of money bail.

The story reveals that the defendant had been arrested about a year before with a 45 caliber revolver. When he was ordered to give up his weapons after this recent arrest, however, he did not surrender any revolver. Moreover, police found other rifle ammunition in his car that didn’t match any of the rifles that he surrendered. Clearly, authorities believe that he is holding out on surrendering his full collection of weapons. Accordingly, the county attorney wants the monetary condition of release raised from $100,000 to $500,000.

The first question that must always be asked in conditions (including financial conditions) at bail cases is “why.” In other words, what is the constitutionally valid rationale for seeking an increase in the amount as a limitation on pretrial freedom?  Bail must have a valid purpose, and these days the only purposes constitutionally recognized as valid are risk to public safety and for failure to appear for court. If the defendant actually breached one of his bail conditions (nobody has said he has, yet, they only believe it to be so) then Montana can certainly revoke the bond under its existing statutes. And clearly, if anyone dared to say that the increase was in some way punishment for their belief that the defendant lied to authorities and didn’t surrender his weapons, then that would be a clear violation of the constitution. Nobody has said anything about the defendant being a risk for flight – after all, he is already out on bond and is apparently watching all this from relatively close sidelines.

Which leaves us with public safety. Obviously, if everyone believes the defendant has access to weapons, then prosecutors might make a pretty good argument for why they feel more restrictive conditions of release might help to further public safety, a constitutionally valid purpose for limiting freedom. The problem is that money bail, in Montana as in most other states, cannot be forfeited for breaches in public safety. It can only be forfeited for failure to appear. Right now, the defendant is out on a $100,000 bond. If he commits another crime tomorrow, that amount will not be forfeited. If it is raised to $500,000, and he commits a new crime, that amount will not be forfeited. It is only lost if he does not return to court at the proper time. You can thank the commercial bail bond industry for this fairly common part of nearly every state’s bail law.

Accordingly, legally speaking, money has nothing to do with keeping anyone safe. But what does the research say? Well, it turns out that loss of money has never been demonstrated in any way to protect the public either. One only has to look at the headlines to see that crimes are committed by individuals on all types of release, including those secured with high amounts of money. Maurice Clemmons killed four police officers while out on a fairly high money bond. Others have done the same thing while out on much less. Beyond the headlines, however, are numerous social science studies attempting to find a link between public safety and money, but there is none. That is why the national best-practice standards on pretrial release say that courts should never – I said never – set financial conditions of bail in order to protect the public.

In fact, the only way that money could protect the public is if a court were to set it so high that the defendant could never post it at all. Sidestepping the fairly serious constitutional questions surrounding this practice – a practice that has been questioned, if not condemned by scholars in this country for over five decades, the fact is that if the $500,000 bond is a commercial surety bond, then there’s always a pretty decent chance that the defendant will be released. That’s because even though everyone believes that bail bondsmen charge ten percent on every bond they write, often they lower that percentage. Indeed, I have seen instances of bondsmen helping a defendant to get out of jail with no money down and on an installment plan to eventually pay the fee. And remember, if the defendant commits a new crime while he is out, nobody is out any money anyway.   

At some point, all of this raises the very important issue of the arbitrariness of money. I mean, why did the attorney ask for $500,000 and not $1 million? Why not $10 million? In my humble opinion, the arbitrariness of money bail will be its ultimate downfall. Arbitrariness in setting nonfinancial conditions at bail typically stems from finding no rational reason for connecting the conditions to individual defendants. Financial conditions suffer also from arbitrariness by degree; even if a judge may be able to articulate why he or she feels that money generally is an appropriate condition of release for a particular defendant, that judge typically is unable to explain why one amount has been chosen over any other.

So in the end, you have a requested increase of money that might not be tied to any constitutionally valid purpose for limiting pretrial freedom. Moreover, even if it is based on public safety concerns, the request is also potentially irrational because it money is not legally, empirically, or even logically tied to public safety. And, unless there is some good reason for one amount over another (or even for the initial amount, for that matter) you have a request that is also arbitrary. In appellate work, irrational and arbitrary actions by government officials are typically deemed unlawful under multiple theories of law.

There are solutions to this dilemma, which I will write about in future posts. Until then, it should be enough that we at least fully understand what we are doing. If we can’t act rationally and non-arbitrarily in these big, high profile cases, how can we possibly do so with the vast majority of bail cases, in which hundreds of dollars can mean the difference between pretrial freedom and jail?

And now . . .  the rest of the story. The judge denied the request because prosecutors didn’t provide any proof the defendant still had any firearms. Oh well, not everything is exciting.  Good day.