Once there was a Lion, a Fox, a Jackal, and a Wolf who agreed to go hunting together, sharing with each other whatever they found. One day the Wolf ran down a Stag and immediately called his comrades to divide the spoil. Without being asked, the Lion placed himself at the head of the feast to do the carving, and, with a great show of fairness, began to count the guests. “One,” he said, counting on his claws, “that is myself the Lion. Two, that’s the Wolf, three, is the Jackal, and the Fox makes four.” He then very carefully divided the Stag into four equal parts.
“I am King Lion,” he said, when he had finished, “so of course I get the first part. This next part falls to me because I am the strongest; and this is mine because I am the bravest.” He now began to glare at the others very savagely. “If any of you have any claim to the part that is left,” he growled, stretching his claws menacingly, “now is the time to speak up.”
The rule of this story? Fairness is decided by the one who has power to define fairness. Put less elegantly, might makes right.
Do you believe that the criminal justice system should be run by the rule of might makes right? Unfortunately, right now the answer appears to be yes. This conclusion is evidenced if what happens day in and day out when someone who is charged with a crime has bail set on their case. That “additional assurance of the presence of an accused “is the only legitimate use of cash bail. Monetary conditions of release cannot be employed to respond to concerns for public safety, prevent future criminal conduct or frighten the defendant or to placate public opinion.” Hudson v. Parker, 156 U.S. 277, 285 (1895) (the only reason for bail is to ensure that the defendant appear for trial); Wis. Stat. § 969.01(1) and (4); ABA Criminal Justice Standards – Pretrial Release, Standard 10-1.4(d) and 10-5.3(a) and (b). See also, Ex parte Verden, 237 S.W. 734, 737 (Mo. 1922) (“Confinement in jail prior to trial is not authorized because defendant may eventually be convicted of the charge by a jury, or as any part of his punishment, if guilty, but to assure his presence when the case is called for trial and during the progress thereof. The only theory on which bail can be denied in any capital case is that the proof is so strong as to indicate the probability that defendant will flee if he has the opportunity, rather than face the verdict of a jury.”) (emphasis added); Hampton v. State, 42 Ohio St. 401, 404 (1884) (“The object of bail is to secure the appearance of the one arrested when his personal presence is needed; and, consistently with this, to allow to the accused proper freedom and opportunity to prepare his defense. The punishment should be after the sentence.”). The amount shall be determined solely in reference to the purpose of bail, namely, to assure the appearance of the accused when it is his duty to appear to answer the criminal prosecution.” Rohl v. State, 90 Wis. 2d 18, 53 279 N.W.2d 731, 737 (Ct. App. 1979).
Most judges know this law. Unfortunately, many judges disregard this law when setting bail. Being the lion in the legal system has its advantages.
Rather than setting cash bail for the only legitimate reason, commentators have noted that judges frequently set bail high enough to coerce guilty pleas, gain cooperation and impose punishment “under the guise of assuring the defendant’s appearance for trial.” Hans Zeisel, Defining the Limits of Crime Control and Due Process: The Limits of Law Enforcement, 73 CAL. L. REV. 212, 233 n.43 (1985). Commentators also indicated that judges often set high bail to prevent defendants from being released and having the opportunity to commit additional offenses -a sort of sub rosa pretrial detention that encountered much criticism from those insisting that the only constitutionally authorized reason to set bail was that suggested in Stack v. Boyle-ensuring the defendant’s appearance at trial. John S. Goldkamp, Danger and Detention: A Second Generation of Bail Reform, 76 J. CRIM. L. & CRIMINOLOGY 1. 15 (1985); John S. Goldkamp, et al., PERSONAL LIBERTY AND COMMUNITY SAFETY: PRETRIAL RELEASE IN CRIMINAL COURT 180, 307-08 (1995). It is “difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated, but as yet uncommitted, crimes. Imprisonment to protect society from predicted but unconsummated offenses is . . . unprecedented in this country and . . . fraught with danger of excesses and injustice. . . .”United States v. Salerno, 481 U.S. 739, 766 (1987), Marshall, J., quoting Justice Jackson in Williamson v. United States, 95 L.Ed. 1379, 1382 (1950).
“[S]tudies indicate that a defendant’s statistical chances of gaining acquittal are significantly derogated by imposition of pretrial detention. (Citing Anne Rankin, The Effect of Pretrial Detention, 39 N.Y.U.L.Rev. (1964) and U.S. Accounting Office, 25 (1987) Criminal Bail: How Bail Reform is Working in Selected Districts) (A Defendant is twice as likely to be incarcerated if detained during pretrial.) In fact, a first offender who is denied bail pending trial is now more likely to be convicted and severely sentenced than a career criminal with ten prior arrests who has obtained a pretrial release order. (Citing Marc Miller & Martin Guggenheim, Pretrial Detention and Punishment, 75 Minn. L. Rev. 335, 339, n.33 (1990) Thus, pretrial detention determinations implicate not only a defendant’s pretrial liberty interests, but also ultimate determinations of acquittal or conviction.” Harwin, Michael. Detaining for Danger under the Bail Reform Act of 1984: Paradoxes of Procedure and Proof. 35 Ariz. L. Rev. 1091 (1993).
The most frequently made bail argument by the prosecution, and one that does have an intuitive appeal, is that “the serious nature of this offense and the need to protect the community requires cash bail in this case.” But do facts support this intuitive assumption? Examination of intuitive beliefs is important since intuition at one time indicated the world was flat and the sun revolved around the earth. No amount of intuitive belief, however, changed the facts that we now know to be the opposite.
One study of state practice, focusing upon a sample of felony cases filed in the 75 most populous counties during a single month, provides an especially revealing answer to this question. Reaves & Perez, Pretrial Release of Felony Defendants, 1992, Department of Justice, Bureau of Justice Statistics Bulletin 1, 4 (Nov.1994). The study concerned felony cases filed during the month of May 1992 and Milwaukee, Wisconsin was one of the counties studied. According to this study of felony defendants released prior to case disposition, 3 out of 4 made all scheduled court appearances. Logically, whether a felony defendant released on a case is a danger to the community is measured by the percent of those rearrested while released on bail. Only approximately 14% of released defendants were rearrested for an offense allegedly committed while on pretrial release, 10% for a felony. Thus, not even 25% of the released felony defendants reoffended while released on bail, with only 10% for a felony. As for the 37% of felony defendants who were detained until disposition of their case, 5 out of 6 had bail set but were unable to secure their release, while the remainder (17% of detained defendants and 6% of all defendants) were ordered held without bail. As for those held on bail, the median bail amount was $10,000 (as compared to a median of $3,500 for released defendants).
The long-term implication of how high cash bail served as a coercive method to resolve a case was also found in this study. The median time from the original felony arrest to adjudication was 118 days for released defendants and 46 days for those detained; the felony conviction rate for detained defendants was 70%, compared to 45% for released defendants, and upon conviction 87% of detained defendants (as compared to 51% of the released defendants) were sentenced to incarceration.
The lions have spoken. Defendants will of course be granted bail. But the amount of bail will be in an amount more than you can afford so you stay in custody. If you disagree how the lions have set bail, now is the time for you to speak up.