There was never any doubt, at least among people who had any realistic clue about the criminal legal system, that some of the folks released without bail were going to commit crimes while out. On the one hand, those who opposed bail reform would point to the heinous crime and use it as a bludgeon to demand the return to the old bail system for the sake of public safety.
On the other hand, advocates highlight the injustice of holding presumptively innocent people in jail over petty offenses. The story of Kalief Browder is a stark reminder of the harm. Mere days ago, 25-year-old Brandon Rodriguez was found dead on Rikers Island, where he was held in lieu of bail for a misdemeanor. That someone released would do harm was generally minimized or denied. Few were willing to concede that some would walk out of arraignment and, with their case pending, kill someone. It was not a good selling point to their passionate allies.
But ex-cop, now professor at John Jay College, Peter Moskos raises the rhetorical question of whether there is a tipping point, even among those who feel more aligned with the activists, where the price of release is too high.
A lot of people are released on felony bonds. The question I don't see being discussed by, well, anybody, is what amount of χ severe recidivist crime is acceptable to release γ number of offenders awaiting trial. I'm willing to say > 0. I'm not willing to say 5 a month. https://t.co/AnoUdv4A8L
— Peter Moskos (@PeterMoskos) August 14, 2021
For many, this one-off horrific crime will be enough to push them over the edge to the point where everyone arrested ought to be jailed. But the obvious key to Moskos’ question isn’t the one crime, but that this is the 34th time.
We can’t lock everybody up forever for every crime. We also need to admit some number of released people — people we could legally jail for their crime — get out and shoot, kill, rob, and rape. Bail reform advocates aren’t helping their cause by pretending it never happens.
As with too many issues in crim law, the sides have been largely disingenuous in their arguments. It’s presented as binary, all or nothing, where it’s hard, and often politically unpalatable, to draw rational lines, so we either draw no lines or are constrained to draw politically correct lines. When lines are drawn for reasons that bear no relation to the justifications for bail or legitimate individualized needs, we end up holding the people in jail who should be released but have been accused of a socially incorrect crime while releasing people for whom there are strong arguments to believe that they’re going to do some serious harm to some undeserving victim.
The arguments tend to revolve around theory and fantasy, the presumption of innocence being an undeniably strong basis to release defendants based on accusations. But adherence to principle doesn’t mean indulging in fantasy. I’m a vehement advocates for the presumption of innocence, but I suffer no delusion that most people arrested are poor innocents suffering whatever evils are ascribed to the system at the moment. Most are guilty, and it’s not, as some of the more hysterical activists cry, that they are the victims of the system who, given half a chance and a pony, will go on to love their neighbor and cure cancer.
There are, however, numerous distinctions to be made. Are they “guilty” of smoking weed on the stoop or of beating old Asian ladies? Did they ride a bike on the sidewalk in the wrong neighborhood or did they steal Nike sneakers? Did they do it because they were mentally ill, drug addicted or a bad dude?
To muddy the water even further, the bail issue isn’t about detaining people who pose a potential risk to public safety upon release, but who can afford to pay the bail and get out. If the defendant’s family, boss or friends can muster $5000 for bail, he gets out to do mayhem or not, as the case may be, the same as if he was released without bail.
The theory is that if he commits a crime while out on bail, the bail will be forfeited. Not too many people inclined to murder people are constrained by the potential of bail forfeiture. And if bail is posted by an organization that bails out random defendants, they don’t care whether bail is forfeited. It’s not their mother’s money, so there is little incentive to behave for the sake of not losing bail.
Moskos’ question has no “right” answer. Certainly, if you’re the victim of someone who tried to murder you while free on felony bond, one is more than enough. From a societal perspective, we don’t hold thousands of people in jail because one will come out and commit a heinous crime. But do we hit a tipping point when 34 have come out and killed, or at least tried to kill? Do we reach a stage where the fantasy that all defendants are wonderful people, or sad victims, gives way to the dead bodies in the street?
As Moskos notes, this is the argument that isn’t being had as both sides stand at their extremes, where either everyone or no one should get out. There are, and always have been, serious factors that would allow the system, or to be more precise, judges, to accommodate the individual considerations guiding bail, release or detention, but it doesn’t appear that there is any desire to engage in the hard and serious work of fixing the system to make it function as best it can. And the system will still fail some, because it’s a highly imperfect system at its best.
Bail has long been a functional disaster, with people charged with petty offenses held (at inordinate cost) for the inability to pay $1000 to get out. And those held have always been put at risk harm (and especially death during a pandemic), suffered significant harsh collateral consequences for no good reason (like loss of a job, apartment, custody of children), been subject to extreme coercion to plead guilty and get out immediately rather than fight the case and remain in jail for years, and in violation of the fundamental principle that they are innocent until proven guilty. The problems are huge. One-size-fits-all solutions aren’t the answer.
But rather than fix bail in a sustainable and rational way, these murders that activists promised wouldn’t happen are going to tank serious reform when they tip the scales back to lock-em-all-up because of fear.
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