July 15, 2012
Are bail conditions increasingly being used to impose pre-conviction punishments?
The question in the title of this post is prompted by this notable new op-ed authored by Professors Dan Markel and Eric Miller appearing the New York Times. Here are excerpts:
In May, a federal judge ordered the pretrial release of an alleged robber on the condition that he read and write book reports for 90 minutes daily. Earlier this year, a trial judge directed a domestic violence defendant, again as a condition of pretrial release, to buy his wife flowers and take her out for bowling and supper at Red Lobster. And just last week, in Florida, a county judge’s new bail order forbade George Zimmerman, who claims self-defense in the death of Trayvon Martin, to drink alcohol or go out after 6 p.m.
Of course, these orders are not themselves grave injustices, but they all raise similar and serious legal questions. They spotlight a pervasive phenomenon hiding in plain sight: the abuse of bail and other pretrial release powers for punitive and rehabilitative purposes.
Before anyone is proven guilty in a court of law, the Constitution extends the presumption of innocence. That presumption is at odds with the kinds of pretrial conditions described above....
This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges. But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of “pesky” lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.
It’s understandable for judges to want to attack the social problems they see in the criminal justice system. The problem — besides the obvious issue of assigning punishments to people who might not even be convicted of crimes — is that they are thinking up untested responses on a case-by-case basis. This leads to disparities and fragmentation of penal policy even within jurisdictions; increased scrutiny of suspects at a stage when they should be free to build their defense against the government; and an imposition of the values of the temperance movement on the criminally accused (since even lawful and moderate consumption of alcohol is frequently prohibited). Perhaps most disconcerting is how easy it becomes for regular people to violate these unreasonable bail conditions, which leads to unnecessary arrests and even more overcrowded prisons.
Pretrial release raises complicated legal and policy issues in every case. Still, our core concern is that many judicial release orders exhibit confusion about or disregard for the distinction between pretrial release and post-conviction punishment. Judges determining pretrial release are not authorized to act as social workers or agents of public retribution. They need to stop pretending otherwise.
Record(?)-long sentence of 1,256 years(!) imposed on Colorado bank robber
As reported in this local article, headlined "Convicted bank robber gets 1,256 years in prison," a repeat offender in Colorado state court was given a sentence longer than any sentence I can ever recall. Here are the details:
After serving part of a six-year sentence for a 2003 bank robbery, parolee Daryl Lamont Keener went right back to his old tricks, authorities say, joining an accomplice in eight more bank heists in Colorado Springs. It’s unlikely there will be a repeat performance.
Keener, 31, was sentenced Friday to 1,256 years in prison -- a result of Colorado’s stiff sentencing for repeat criminals and one of the most severe penalties in El Paso County’s recent history. “It’s shocking,” said Shimon Kohn, a defense attorney unaffiliated with the case. “I’ve been practicing criminal law in this jurisdiction since 2000, and I’ve never heard of these kinds of numbers, ever.”...
Police described Keener as a “career criminal” in announcing his March 2011 arrest, and detailed terrifying scenes in which Keener and a second man took turns storming into banks and ordering people onto the floor at gunpoint. The men were arrested after detectives linked them to a getaway car captured on tape by a surveillance camera as it fled a March 3, 2011....
Among Keener’s charges related to the spree were multiple counts alleging he is a “habitual offender” – a sentence enhancer with the potential to quadruple penalties. Under Colorado’s sentencing laws, the multiplier would apply to each named victim in every bank robbed by Keener. Getting to a total in excess of 1,200 years, however, required Judge Prince to exercise his discretion to stack those sentences rather than rolling all eight robberies together for a single triple-digit sentence.
Unless Colorado has some automatic mechanism for reducing time served, as of this writing Daryl Lamont Keener's proejected release date is now the year 3286! Or, to put a sentence of this number of years into a slightly different perspective, such a long sentence would be concluding now if an offender had gotten sentenced to this extreme term in the year 756.