Monday, June 2, 2014

Oops, we didn't mean to actually release him . . .

Here is yet another case that's a symptom of our dysfunctional bail system:

The news article describes a judge doing what judges in America often do -- order the release of a person on bail, but then set a financial condition of release that most everyone figures will keep that person in jail. In this case, the judge in York County, Pennsylvania, set defendant Gregory Allen Hess's financial condition at $10 million. Yes, $10 million. And, frankly, everything was apparently going quite well until a for-profit bail bondsmen came and posted the bond. Oops. 

This case reminds me of another case in Missouri not too long ago, in which the Saudi Arabian government posted a defendant's $2 million financial condition of release. In that case, the judge actually admitted that he didn't mean for the defendant to get out. In fact, the judge said, he meant to detain the defendant, even if that detention violated the Missouri Constitution.  

So in York County, people are trying to figure out ways to reverse the release process. Right now they're looking to see if the bondsman has enough assets to cover the bond. All of that, however, is just a sideshow to the main event, which is that people just didn't want Defendant Hess to get out of jail. This isn't unusual. Across America, judges are setting "release" conditions that are designed to detain -- typically when they think that the defendant is a big risk to public safety.  

It's the same thing that was happening around the the middle of the twentieth century, and because it was a bad way to administer detention (or "no bail," as I often call it), we figured out how to change our laws (both statutes and constitutions) to allow judges to detain people in fair and transparent ways without going through the charade of setting unattainable release conditions. 

So why does it still happen? Well, it turns out that a lot of states simply didn't go far enough in making the kinds of changes required to do pretrial detention properly, mostly by not fully implementing the kind of detention scheme approved by the United States Supreme Court and by not drastically reducing the use of money at bail. On top of that, virtually all of the state release and detention schemes that we currently have are still based primarily on charge -- allowing states to detain defendants only when they are charged with certain enumerated crimes -- as opposed to risk, which would allow judges to assess the pretrial risk of any defendant, no matter what the charge, and potentially hold him or her without bail if necessary. All of this is especially important when you realize that money bail has nothing to do with public safety. Money can't keep you safe, and in virtually every state, money can't even be forfeited for breaches in public safety. Typically, you can only lose it if you fail to show up for court. Using money for public safety really only works when the defendant can't pay it. The problem is that using money to detain is likely unlawful. 

And sometimes, you know, an extremely high risk defendant actually pays it and gets out anyway. In Washington State, a judge set a $190,000 financial condition for Maurice Clemmons, who was assessed to be dangerous, a high risk to re-offend, and hallucinating. He paid it through a bail bondsman and within a week shot and killed four police officers. Just about a year ago, a defendant in Colorado was released on a $75,000 commercial surety bond even though a pretrial services assessment said that he was too risky to be adequately supervised in the community. While out, he shot a State Trooper during a roadside assist. In that case, the Trooper lived, the defendant died, and the bondsman kept his fee and didn't have to pay any of the $75,000.    

The history of bail and the law intertwined with that history tells us several things, but one of the biggest is this: both "bail" (release) and "no bail" (detention) are lawful if we do them correctly. When done correctly (and in the proper ratio), bailable defendants (or those whom we feel should be bailable) are released and unbailable defendants (or those whom we feel should be unbailable) are detained. When we don't do them correctly, however, history demands that we remedy the situation through bail reform measures. Indeed, starting in the middle ages in England, whenever anything has interfered with the proper functioning of this "bail/no bail" dichotomy, we have seen periods of reform. It's the reason we have Habeas Corpus, the reason we have the Excessive Bail Clause and the English reforms of 1554 (what?), and the reason we've had two previous generations of bail reform in America.   

In our country today, we are doing both "bail" and "no bail" incorrectly. We know this because there are bailable defendants who are not being released and there are unbailable defendants, or in Defendant Hess's case, people that we think should be unbailable, who are not being detained. The good news is that we know how to fix this. Unlike any other time in history, we have the best understanding of how to create lawful release and detention schemes, and we're seeing more and more states using this knowledge to restructure bail. 

The York County story presents merely a symptom of dysfunction and an example of the kind of interference with "bail" and "no bail" that historically demands correction. There's probably a joke here about the Borg in Star Trek and the futility of resistance in the face of being assimilated, but I am absolutely not joking when I say that this particular story reminds me of only one thing: bail reform is inevitable.