Every so often a case comes
across my desk that’s really
interesting.
In the old days, if a judge
set a money bond, you’d get some opinion on review saying, “We review this for
manifest abuse of discretion, we see none here, so affirmed.” Or you might have
a one liner saying that the judge didn’t violate the constitution. Or you might
– just might – see it sent back to have the money amount adjusted. But not this
time.
Nope, this time a federal judge
ordered the defendant freed with no money attached. One day the defendant is in
jail on a $330,000 bond, and the next day he’s FREE TO GO with NO SKIN IN THE
GAME.
It’s in a case called Reem v. Hennessy, and it’s out of the
U.S. District Court for the Northern District of California.
It started with a California Superior
Court judge setting a $330,000 financial condition of release for an indigent
and homeless defendant named James Reem. When that order went up for review,
the habeas court sent it back down saying that the Superior Court judge failed
to properly consider alternatives to detention. So the Judge held another
hearing, kept the money condition in place, and declared Reem to be high risk
for public safety. On review again, the habeas court ruled that setting a money
bond for public safety when you can’t forfeit it for public safety is
irrational, and thus unlawful (that’ true because it would fail under any legal
theory requiring at least a rational relationship between ends and means.)
As an aside, another guy and
I have been preaching this for years. If we can get courts to see that in
virtually every state setting money for public safety is irrational, that would
leave only flight, and my personal belief is that very, very, very few
defendants would ever present an unmanageably high risk for flight.
Anyway, even the least
skeptical of us would still guess that after the judge was told he couldn’t
base it on public safety, he’d just reset bail and, this time, base it on
flight. And sure enough, that’s what the judge did – found Reem to be a significant
risk of flight – and so he kept the $330,000 condition in place.
Now here is where normally
you’d expect things to end. But not this time! This time the reviewing court actually
looked deep into the evidence the Superior Court Judge used to set the money
bond based on flight and found that the evidence didn’t meet “minimum standards
of reliability.” Holy smokes!
Three times up, and three
times the habeas court finds the Superior Court Judge violated the
constitution. In the words of the decision: “Here the state has twice failed to
correct the constitutional deficiencies in its order. Accordingly, Reem must be
released.”
Some in my circles will call
this horrible – after all, it took three times to get to the result. But I’ve
been around and I call it progress. At the very least, times are certainly
changing.
By the way, the bail industry
could care less about cases like this. Reem didn’t have any money for a fee, and he certainly couldn’t cover the entire cost of the bond with
collateral. But the industry should care, and reviewing courts certainly do
care, and it’s cases like this that will change the legal landscape for money
bail. The arguments used to release Reem are the same arguments being used to
get rid of money bail in all amounts for all defendants. For every case like
Reem that the industry lets go by, or doesn’t tell you about, we’re that much
closer to the end of money bail.
