Bailing out the Bail System?
Posting bail for those accused of a crime has long been a contentious issue, applicable to both state and federal laws. The topic has recently triggered national attention due to the status of those arrested during the January 6th riots still awaiting trial with no bail, and more recently, the horrific atrocity in Waukesha perpetuated by Daniel Brooks Jr.
Regarding the January 6th rioters, in the federal case of United States v. Munchel, a three judge panel ruled those who “actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.” Those in the latter category are eligible for bail. The people in the more aggressive category are not.
The ruling instructed judges to release Capitol riot suspects, even if charged with serious crimes, unless the Department of Justice demonstrates a specific threat that defendant poses to the community.
This seems to me a reasonable standard of decision-making, threading the needle if you will, to balance out individual rights and public interests.
In the Waukesha situation, Daniel Brooks Jr. was out on a $1,000 bail prior to this incident. He has a two-decade long history of forcible felonies, has an outstanding Nevada arrest warrant, and is a convicted sex-offender who has allegedly violated his supervision terms.
How he was assessed as low risk to the community with a mere $1,000 bail is beyond me.
Bail is the amount of money defendants must post to be released from custody until their trial. Bails are not fines, nor a punishment. The idea goes back to old England, and is at its core a mechanism to protect individual rights against government power to incarcerate. The purpose of bail is simply to ensure that defendants appear for trial and all pretrial hearings. Bail is returned to defendants when their trial is over.
Several factors are considered when determining the amount of bail:
The problem has to do with time. The U.S. Constitution is a wonderful thing, and the 6th Amendment mandates: “The accused shall enjoy the right to a speedy and public trial.” Speedy is the operative term here. That doesn’t always happen. Sometimes waiting in jail for trial is stretched to an outrageous degree, as our friends at the Innocence Project document.
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This problem needs a legislative fix both federally and at the state level. There needs to be a time limit on waiting for trial. Bails themselves should be reasonable, and not meant to disadvantage those with less means.
After the slaughter in Milwaukee, the Waukesha District Attorney asserted that the state would be “asking for high cash bail, significant cash bail, so that for all intents and purposes, they don’t have the ability to post it because it’s so much money.”
The Eighth Amendment states: “Excessive bail shall not be required.” Translation: Bail is not constitutionally required in every case; but where bail is assigned, it must not be set so high that it is illusory – that there really is no bail because the accused cannot meet the conditions. In this case, the bail set for Brooks is $5 million, precisely because that’s an amount so high, a person of his means has zero possibility of posting it.
This isn’t right either; that’s not the purpose of bail. Andrew McCarthy provides an excellent explanation of this imbalance worth reading in full, both in relation to state and federal standards.
The bottom line: The idea of bail is meant to assure that the accused return to court, and to protect the greater community from those that have demonstrated a willingness to do harm. It’s not a punishment, or a cudgel to get suspects’ compliance. Nor should it breed a for-profit industry to offset it with alternative collection mechanisms, or preventative detention for those still considered innocent.
It needs to adhere to an objective and reasonable standard.
At the same time our court system needs to clarify the word “speedy.” True, it’s a very imprecise word. However, let’s limit the amount of time the accused is incarcerated while awaiting trial. If it’s not speedy, it becomes a punishment in and of itself. That’s wrong.
Some of my thinking has been informed by a tremendous conversation with Jeff Clayton, Executive Director of the American Bail Coalition. Their stated mission: a dedication to protecting the Constitutional right to bail and the promotion, protection and advancement of the surety bail profession in the United States.
Let’s remember our foundational legal value: “Innocent until proven guilty.” That’s a standard we ourselves prefer to be judged by, and it’s a standard that should extend to all members of our society.