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?