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?
Here’s one of the many news stories
about it: http://www.nbcnews.com/storyline/baltimore-unrest/so-much-money-baltimore-teen-who-surrendered-held-500-000-n351606.
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?
