Basics of bail - and justice
Sometimes law and the appearance of justice feel like two different things, perhaps even diametrically opposed. Those working within the justice system occasionally feel that way, so it’s understandable when others feel as outraged as they’ve expressed lately in this newspaper. Case in point: violent crime, heartbreaking consequences, and ostensibly low bail.
Speedily submitted letters to the editor and a public rebuke against presiding judges at bail hearings make it clear where public anger is aimed. Yet it also reveals a lack of understanding about what bail is, and what judges can and can’t consider when setting it.
To do this topic full justice isn’t possible in one column, so I apologize for the generalizing and omitted details necessary to keep this brief. Bail is essentially an agreement in which the defendant agrees to “post” money (or other property) in exchange for freedom, to ensure appearance on scheduled court dates. Assuming they do appear, that property is generally returned. If the defendant can’t afford to pay it all up front, bond companies may guarantee payment for a fee, typically 10 percent.
From a Constitutional point of view, every defendant at a bail hearing is legally innocent. That’s right; innocent, because guilt hasn’t been proven at trial. That’s the American system of justice, designed to prevent emotional triggers and mob mentalities. So that’s where decision-making must begin — with presumed innocence and unproven charges, no matter what anyone may personally think, feel, or even know.
The purpose of a bail hearing is to determine flight risk and community safety. Bail judges/magistrates can’t consider perceived guilt or innocence, the fairness or unfairness of charges. They do have other tools at their disposal, such as limiting and monitoring (now with available GPS technology) the defendant’s activities.
So that brings us to amount. Does the charge, the crime, factor into it? Yes. The more serious the charge (e.g., felony vs. misdemeanor), the higher the potential flight risk. Does history come into it? It can, for the same reason; first offenders are generally given lower bail. Greater potential sentence, such as for repeat offenders, equates to greater incentive to skip town.
What about danger to the community (or living victims)? Yes, that’s also an important consideration, but remember, this is someone presumed innocent, so demonstrable facts are all judges can consider. To protect those who may be innocent of charges — often the highest allowable, even if they’re reduced or amended later after evidence is gathered — that’s tremendously important and why the system is designed the way it is. Arrests and bail hearings generally occur before all possible evidence is collected. Heinous details and other outrage-inspiring factors, however compelling, aren’t otherwise supposed to control the bail decision. That’s more for trial than bail.
Most courts are constricted by preset ceilings (“schedules”) for certain categories of crimes, so while million-dollar bail might sound right to the rest of us, courts must follow those schedules. Within them, judges generally can consider defendants’ physical and mental condition; financial resources; ties to the community (family, job); drug and alcohol abuse; and criminal history, including whether he or she has skipped other court proceedings.
Is this system fair? Some within it say it isn’t, especially in states and jurisdictions with high rates of poverty and high bail, which one New York judge told CBS means the rich enjoy freedom while the poor stay behind bars. Others point to horrible crimes whose suspects get low bail.
Headlines and poignant cases aside, if bail is set too high, especially disproportionately so, innocent people are left in jail for months awaiting trial. Our system is predicated on that risk to the innocent outweighing the risk of the guilty roaming free.
Are the imperfections worth that?
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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at [email protected].