Sunday, May 31, 2015

John Legend -- "Value Every Life"

There’s a time in every movement when it becomes a truly national movement. And you can tell when that happens by certain people and organizations getting involved. Most of you have heard all about the various new groups, foundations, and political figures getting involved in bail reform and pretrial justice lately, but I’m talking popular culture here.  

Like last week, when someone from HBO called to ask about bail for a weekly comedy show. I asked what in the world could possibly seem funny about locking up so many people for lack of money, and she said that their show specializes in taking “grim” subjects and making jokes about them. I believe her, and it may be one of the best ways to get the attention of the American people.  

Another way is for our American stars and celebrities to get involved. That’s what Oscar and Grammy Award winning singer-songwriter John Legend is doing. I first saw him say something about mass incarceration at this year’s Oscars. And if you aren’t sure about his commitment, look at this story, describing his new campaign to end mass incarceration: Or just run his name along with the words “jail reform” and see what comes up. The story says that he’s putting together other artists to help him out, in addition to organizations committed to ending mass incarceration, and so I really hope that my pretrial friends reach out to him.

John Legend has a giant following, and the people who want to leave bail the way it is, keeping poor and minority folks in jail for lack of money, are going to have their hands full when someone famous and with common sense and empathy for others gets full-on involved.

John recently told some people in Texas to “value every life even if people make a mistake.” Exactly, John. Well said.  

Tuesday, May 19, 2015

Bail for the Bikers -- Stack v. Boyle II?

Once upon a time in America, government officials arrested 12 persons and charged them with violating the Smith Act, which made it against the law to advocate overthrowing the U.S. government. The Smith Act mostly was used to prosecute communists, anarchists, and fascists – people we didn’t like and who scared us, and these particular 12 people were believed to be communists. A judge, looking at these 12 defendants, set each of their financial conditions of release (some would say their “bail”) at $50,000.

Looking at these bail settings in the 1951 case of Stack v. Boyle, the U.S. Supreme Court ruled that they were unlawful. In particular, the judge didn’t take into consideration any individualized factors that help make those bail settings non-arbitrary, the judge apparently based the amount on a single factor – the charge – which the Court expressly said was an arbitrary act, and that the judge didn't consider any evidence so that the amounts would be “reasonably calculated” to provide assurance of court appearance.

In his concurrence, Justice Jackson elaborated a bit. He said that the practice of admission to bail “is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial.” Instead, he wrote, “the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.” When presented with the argument that the bail-setting court fixed uniform blanket sums by merely looking at the charge and not at each defendant, Justice Jackson wrote, “If this occurred, it is a clear violation of [federal law]” and that to assume that each defendant was completely identical to each other defendant at least violated the law of probabilities. When presented with the argument that the bail-setting court used the amounts to keep these communists in jail on purpose, Justice Jackson wrote that such a use “is contrary to the whole policy and philosophy of bail.” In fact, we now have appellate court opinions that clearly state that setting bail with a purpose to detain people is unlawful.

Fast forward to this week, when government officials arrested 170 people in Texas and charged them with engaging in organized crime. When we use that charge, we mostly go after people we don’t like and who scare us, and these particular people happened to be in motorcycle gangs. A judge, looking at these 170 defendants, set each of their financial conditions of release (some would say their “bail”) at $1 million. You see where I’m going here, and it doesn’t take a genius to notice the similarities between one of our biggest bail cases in America from 1951 and what happened this week in Waco.

Honestly, if our own judges can’t keep track of U.S. Supreme Court precedent, how are we to improve? Today, we actually know how to deal with extremely high risk defendants. And if any – or all – of these defendants are extremely high risk, then they should be detained without bail. But if they’re high risk, setting money bail to detain them is not the answer.  

I’m weary of explaining why. That hasn’t always the case, as usually the explanation is a new thing to judges, who aren’t necessarily trained in social science research, statistics, or other fundamentals of bail that don’t deal with the law. But I shouldn’t have to explain to a judge what the U.S. Supreme Court has said, or is likely to say, about how to set bail.

The history and the law tell us that both bail (release) and no bail (detention) are lawful if you do them right. In this single act of setting 170 identical financial conditions, this judge simultaneously did both bail and no bail wrong.


Thursday, May 7, 2015

Baltimore Kid Faces Life -- What About the Judge?

Did you hear the one about the 18-year-old kid who bashes a car windshield in Baltimore with a plastic cone, turns himself in, and the judge sets his financial condition of bond at $500,000?

Judges can only set conditions of release for two constitutionally valid purposes – court appearance and public safety. Now, since the kid turned himself in, we have to assume he wasn’t the biggest flight risk, so what about public safety? Well, the problem with public safety is that in virtually every state, Maryland included, you either can’t forfeit a financial condition for new crimes or the law allows a surety to be exonerated from any forfeiture so long as the defendant is in custody. Setting money for public safety when you don’t lose the money for breaches in public safety is irrational, and thus likely unlawful under multiple theories of law that require, at a minimum, rationality by the government. Moreover, after decades of research, we have never shown any link between money on a bail bond and public safety. Quite simply, money won’t keep you safe.

So why $500,000? Was it to punish the kid? If so, it was unconstitutional. Was it to teach him or others a lesson? If so, it was unconstitutional. Was it to keep him in jail? If so, it was unconstitutional. Was he given any kind of a decent due process hearing before being detained through an unattainable release condition? If not, it was unconstitutional.

Which raises the important question; what do we do when judges violate the law? We’re pretty keen on making sure everyone else pays when they violate the law. For example, this kid faces life in prison for breaking that windshield. But what about the judge? Is it too much to ask that judges simply follow the United States Constitution? And what should we do when they don’t?