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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.

July 15, 2012 at 07:08 AM | Permalink


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'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first - verdict afterwards.'

'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'

'Hold your tongue!' said the Queen, turning purple.

-Lewis Carroll, Alice's Adventures in Wonderland, Chapter 12

This is happening a lot in Texas state courts, most prominently on DWI cases (but also other stuff), see e.g., here: http://www.mysanantonio.com/community/northeast/news/article/County-steps-up-DWI-crackdown-3456799.php

In Houston, pretrial bail conditions were cited by consultants as a contributing factor in jail overcrowding as far back as 2005, see: http://gritsforbreakfast.blogspot.com/2005/08/extra-bail-conditions-when-tough-on.html

Posted by: Gritsforbreakfast | Jul 15, 2012 8:39:33 AM

This is what happens when criminal law starts to mistake itself for social work.

Posted by: Bill Otis | Jul 15, 2012 9:18:12 AM

Direct and to the point, Bill.

I don't believe that is the cause, however. What I think drives it is judges protecting their backsides. They don't want to grant someone bail and then that person go out and kill or rob again and the public come screaming in their face "WHY DID YOU SET BAIL SO LOW!!!!". Pretrial conditions allow judges to appear "tough" and inoculate them from bail decisions that might otherwise go wrong.

Posted by: Daniel | Jul 15, 2012 10:06:35 AM

Good write Mr. Otis.

Admitte4dly off topic , but I continue to wonder whether a descendant of James Otis ☺

DJB ARR/AWD [email protected]

Posted by: M. Blank | Jul 15, 2012 11:21:42 AM

Bail is being used as an incapacitation tool. A mental patient goes crazy on a bus. He is in jail with a bail of $100. No one is coming forward with it, because everyone is relieved he is out of circulation. He stays in jail a year before charges are dismissed.

About a third of jail beds across the nation are filled by people who would have gone to a state hospital in the past. The smallest of bails are used to keep them there as long as possible. They do improve with care in jail, however, they get discharged suddenly, with no prescriptions, no follow up appointments, no nothing. Los Angeles county jail has the world's largest mental hospital. They have a straight hospital facility to care for 1500 of the sickest patients, but likely have 10,000 patients throughout the jails.

Prisoners are surprisingly snobbish, and demand to have these patients removed from general population, just like the neighbors on the outside.

Posted by: Supremacy Claus | Jul 15, 2012 12:26:33 PM

LOL don't know about you all but the first thing that popped into my mind as a response to the judge was

"Fuck you judge"

sorry they can talk all the shit they want but any bail condtions should be reationaly related to the charge the bail is being placed for!

Posted by: rodsmith | Jul 15, 2012 12:57:34 PM

M. Blank --

A federalist for sure, but not a descendant of James Otis. Indeed, my father adopted the family name. His parents were from Germany, and their name was Oestreicher. When he started his own company, he found that none of his customers or suppliers could spell Oestreicher, so he changed the name to Otis.

Posted by: Bill Otis | Jul 15, 2012 2:34:16 PM

Daniel's got it right. It's America's sissy complex at work...very important at all times to appear tough.

Posted by: John K | Jul 16, 2012 11:29:04 AM

John K --

A person would have to be beyond insane to think that a requirement to buy your wife flowers and take her out for bowling and supper at Red Lobster is an expression of the need to appear tough.

Now if the judge had required the defendant to take his wife out for supper at the Four Seasons, THAT would be tough.

Posted by: Bill Otis | Jul 16, 2012 11:41:31 AM

I think there's a distinction between George Zimmerman's curfew and the other conditions mentioned in the article.

Zimmerman is charged with committing a vigilante killing while on self-appointed nocturnal patrol. It makes sense that a judge considering how to protect the public from the risk of crimes committed while on release might want to restrict Zimmerman from nighttime activities. (The degree of the curfew--6 pm daily--could be debated, but this type of restriction is rationally related to public safety on the facts of the case.)

Restrictions on drugs and alcohol are also common whenever there's a suggestion the defendant has used illegal intoxicants or abused legal ones. I don't know whether there's any suggestion that Zimmerman has abused alcohol or that alcohol was involved in the events for which he is charged. It seems like a pretty standard condition, though if alcohol unquestionably was not involved and there's no suggestion he has a problem with it then it's probably overreaching. Even so, it's still different from creative conditions like book-report-writing or wife-wooing.

And before the thread goes on a tangent on whether Zimmerman did it--that obviously is the question for trial (or, I suppose, the stand-your-ground hearing). I have no idea. But that's what he's charged with, and that's what the judge has to take into account in assessing risk to the public.

Posted by: Def. Atty | Jul 16, 2012 12:34:50 PM

Thanks for the helpful comments all. I figured some might be interested in this related story:

I find Def Atty's acceptance of the curfew in Zimmerman's case puzzling. I would think, if the presumption of innocence is to have some teeth, that the restrictions on liberty on pretrial release have to be justifiable and justified beyond the low level of "rational basis scrutiny." (That's a moral not a legal claim I am making for what it's worth. Perhaps rational basis is the only thing that matters in that court but I haven't looked it up.) By the way, is the basis for the judge's risk assessments and decisionmaking actuarial or specific to the individual? There's lots of under-explored issues here and let's face it, judges are engaging in lots of rank speculation fed primarily by their intuitions and experience: ie,. anecdata.

Again, thanks to you all for the reflections and comments.

Posted by: Dan Markel | Jul 16, 2012 5:00:46 PM

My comments were made in the context of real-world practice, not moral argument. (In academic parlance, they were positive, not normative.)

The standard of review for conditions of release is abuse of discretion. I have not seen "rational basis" invoked in the case law, but I believe that functionally the standards operate the same way. In a world where judges at all levels operate under a crisis of volume, it is difficult to imagine a standard with more teeth being workable or long tolerated by appellate judges.

Thus, one might reasonably argue that a 6 pm curfew, rather than a midnight curfew, is an unwarranted infringement on Zimmerman's liberty. Or that an outright curfew, rather than simply a prohibition on neighborhood watching or on going about armed, is overreaching. But in an overworked judicial system, I doubt you're going to get anyone to listen or worry for long. Trial judges, charged with protecting the public while administering defendants' right to bail, have to have some latitude. And appeals courts can't be overwhelmed with ticky-tack arguments over temporary pretrial conditions.

The trial judge's assessments are individual, case-by-case. I haven't heard of actuarial arguments being made, though I'd be interested to be in court to hear such an argument by attorneys with the time to prepare it, before a judge inclined to entertain it. Most bail decisions, made in a hurry at conveyor-belt initial appearances where the magistrate and both counsel are all equally hurried and unprepared, do not benefit from such researched or nuanced argument. Even so, I bet the response from most magistrates to an actuarial argument would be some version of, "That's nice, but I have to make a decision about this individual. What can you tell me about him (her)?"

Posted by: Def. Atty. | Jul 17, 2012 11:38:31 AM

Some of these release conditions are getting a little goofy I would say. Book reports and flowers to buy? Come on!

Posted by: bail bondsman Las Vegas | Oct 22, 2013 2:53:42 PM

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