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.