I don't like writing about what I call "aberrational" cases -- those unique cases that make the news but that don't necessarily tell you what is really going on with bail in America. I would much rather talk about a case in which a judge set a $100 cash-only bond that led to the unnecessary pretrial detention of yet another defendant without money. That sort of thing happens all the time, but you just don't read about those cases very often in the news. Instead, the news reports on the aberrations, and when you watch the news for bail issues for a bail blog, you end up reading (and sometimes writing) about aberrational bail cases. Typically, they involve financial conditions in the millions of dollars. I saw two such cases the other day, and each raises similar issues.
The first case involved a 21-year-old San Francisco Giants fan, who set off an M-80 firework at a baseball game against the Dodgers. Nobody was seriously hurt, and the press reported that the defendant had never been in trouble before, but the judge set the financial condition at $2.4 million. Later, when the judge reduced the amount to a "mere" $100,000, the defendant's attorney said he believed the initial amount was simply an overreaction to other violent issues linked to Giants games. Now, I wasn't there, and so maybe the judge who initially set the financial condition had grave concerns about the risk to public safety and flight that were later found to be less concerning. But the paper didn't mention any of those things, and if the attorney is correct, then the financial condition of bail in this case was set for an improper purpose. There are only two constitutionally valid purposes for limiting pretrial freedom -- public safety and court appearance -- and judges are expected to base their decisions about setting conditions with only these two purposes in mind. Conditions set to placate public opinion, to punish, or as a reaction or an "overreaction" to other incidents are unlawful. Don't get me wrong -- the $100,000 reduction may be equally unlawful if set for an improper purpose. It's up to the attorneys in the room to force the judge to make a record as to why he or she is setting a particular condition. In bail, motive matters, and an improper motive can actually be the difference between a constitutional and and unconstitutional bail setting.
The second case is one you have probably heard about. Over a period of years, a Utah mother apparently killed 6 babies shortly after they were born and hid the bodies in her garage. The financial condition of bail in her case? Six million dollars, or, as the news reported, "one million for each baby." Of course it's a horrible and tragic case, but what makes it puzzling, bail-wise, is that the Utah bail scheme appears to allow judges to deny bail altogether for any person charged with capital felony or "a felony when the court finds there is substantial evidence to support the charge and the court finds by clear and convincing evidence that the person would constitute a substantial danger to any other person or to the community, or is likely to flee the jurisdiction of the court, if released on bail." If the court makes this finding, then it doesn't need to go through the somewhat disingenuous dance of ordering the defendant's release but setting the conditions of release so that release is unattainable. Again, I'm not there, but I read that the defendant actually admitted to killing the babies, and so if the judge just had this hearing, her or she could simply deny bail altogether. Following the theme of making sure one has a proper purpose for limiting pretrial freedom, setting a financial condition of bail simply to send a message to the public that the crime is serious would be unlawful. Moreover, setting a financial condition of release with a purpose to detain, especially when the state a lawful process for detaining defendants "without bail," as Utah does, should also be deemed an improper purpose and thus unlawful. There are a number of states in America that have enacted lawful procedures that can be used to deny bail (release) in any particular case. Many judges do not use those provisions because it is simply more expedient to detain someone by uttering some gigantic amount of money. Bypassing those provisions, though, means giving short-shrift to the rights that are being protected by the lawfully enacted processes.
All of this goes to states correctly setting up their "bail" and "no bail" dichotomies so that the right persons will be released or detained pretrial. Multi-million dollar conditions of release are typically symptoms of problems with the dichotomies. It's not necessarily an easy thing to do, but once states figure out how to correctly set up both "bail" and "no bail," I predict far fewer million-dollar conditions of release.
