Mimesis Law
6 July 2020

Bail Reform: Another Front In The War On Prosecutors

February 10, 2017 (Fault Lines) — Corruption in police departments is an old accusation. New York City formed the first American police department in 1845. It was established early on as a pay-to-play environment, and it was expensive to play—inevitably things got out of hand. By 1894, the New York Senate was investigating police corruption in the NYPD.  Elsewhere, in the urban North, police officers were associated with union busting and cracking the skulls of rabble-rousers. In the South, the police were an arm of Jim Crow, making sure no one dared to sit at the wrong end of the counter. And in between, it was mostly the county sheriff and the town constable keeping order in farm communities.

The discontent over police practices is often a slow simmer that occasionally boils over—violently. The 12th Street Riot started after a raid on an unlicensed bar. The Watts riot after an arrest. The Rodney King riots after the acquittal of the officers involved. Heck, even the police will riot, when police practices are threatened with change. People are hurt and others arrested, the media swoops in, and the insurance companies have a lot of losses, but the riots don’t change things for the positive.

Instead, from time to time, politically-oriented groups form to demand lasting change. Black Lives Matter is the most recent iteration of an organized group demanding law enforcement change, particularly when it comes to policing minorities. Occasionally, these efforts bear fruit. But the State is around forever and can usually outlast the advocates.

Plus to the majority of voters most officers are like Sheriff Andy. Sure there might be some bad eggs, but they are mostly good guys, who catch the bad guys. A lack of appetite among the majority to, and perhaps even a resistance for, legislative changes means that there is rarely change. In the face of this headwind, advocate for change have begun to frequently target prosecutors too.

Civil forfeiture encourages prosecutors to take property. Prosecutors are to blame for the drug war and mandatory minimums. The increase of incarceration is due to the prosecutors too, including inmates serving time for violent felonies.  Now prosecutors stand accused of imprisoning the poor, mostly for being poor. Maybe one day soon we’ll even have a riot stemming from prosecutors’ actions.

While prosecutors aren’t as frequently targeted as the police are, they’ve been accused of corruption before, particularly regarding political patronage. Without consideration of whether specific prosecutors were indeed corrupt, the concern is understandable as the prosecutor arguably has more discretionary authority than police officers, coupled with sweeping scope of authority, like a county sheriff. Plus, the practice of law is more opaque than much of police practice.

But most of this recent criticism is puzzling. The legislature establishes the crimes, the scope and length of punishment available, mandatory minimums, and prerequisites for forfeiture. Many of these advocates want the prosecutor to exercise discretion in deciding what the elements of the crime are, along with the manner and duration of punishment. This represents a seizure of power from the legislature, thereby increasing the power of the prosecutor. Perhaps the advocate believe ‘we will bring prosecutors to heel by giving them more power!’

Assigning prosecutors blame for the failure of the bail system is yet another mystery. If you’re arrested, then you typically have an opportunity to get out of jail if you pledge money to secure your future appearance. Sometimes the judge will let you go without posting a cash bond or surety. But, depending on where you live, that may be rare. In some cases, the amount of bond is set administratively. This means if the crime you’re accused of is on the list, you pay the pre-set amount and walk out of jail. Other times, you have to appear before a judge, who will set it then.

Generally, you can deposit cash with the court, which will be returned to you at the end of the case. Typically this amount is paid to the sheriff or the clerk of courts. Or you can pay a bonding company a premium, in turn the company will promise to pay the amount if you don’t show. When you don’t show, the company will send a bail enforcement agent (bounty hunter) after you rather than cough up the dough to the court. In a few places, you might not have to post bail and instead will be placed on a pre-trial monitoring, similar to probation or parole.

On balance the system tends to work, at least in the sense that people who bond out tend to show up for court. The problem is that in some places the bail system is seemingly used as a form of social control, that is, the riffraff are locked up to keep them off the streets and upsetting the decent folks. Although this is beyond the true purpose of bail, the bail system can be co-opted relatively easy to keep these troublemakers off the streets for a while. In some cases it can be years, if the court keeps kicking the case into the future, which is incurable if you’re acquitted. The court can’t give you that time back.

You may be wondering, what does the prosecutor have to do with this system? Indeed. Prosecutors may argue against bail or for a certain amount to the judge at the initial appearance. But it’s ultimately the judge’s decision, and it may have been already set by the bond schedule.

Even then, what’s so wrong with the prosecutor making arguments adverse to the defendant’s interest in bail? The prosecutor believes the defendant committed a crime and quite probably that a jury can be convinced of that beyond a reasonable doubt.

If the prosecutor also believes that the person is also a risk not to appear, then it’s certainly appropriate to argue that to the judge. Unlike the judge, the prosecutor is an advocate for bringing the defendant to justice. Ultimately, the judge is vested with the authority to set bail. Contrary to suspicions by the defense bar, prosecutors do not possess a magic wand that removes the judge’s will and instead imposes the prosecutor’s view on the judge.

The suggestion surely isn’t that the prosecutors should be forbidden from arguing facts relevant to establishing bail. Certainly, the prosecutor’s charging decision does impact the availability or amount of bail. But, like the sentence imposed, the imposition of bail is placed within the judge’s discretion, though possibly limited in some way by the legislature. Further, the wealth of the accused should be immaterial to the charge. For it to be otherwise invites a serious moral hazard.

There may indeed be serious problems with bail in some of the states. Blaming this on the prosecutor is as useful as blaming the bailiff. Both are in court when the bail is set and both are doing their jobs. But neither has the authority to set bail. Blaming the judiciary and clerks for these problems would be more accurate. But then it would be far less politically useful to do so. Judges enjoy more independence and are more insulated from public pressure, particularly when appointed. So, prosecutors, like police officers, will continue to receive the blame for all that is wrong in the criminal justice system.

2 Comments on this post.

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  • Christian Baillet
    10 February 2017 at 9:44 am - Reply

    1. Prosecutors use custody status to squeeze out pleas.
    2. Most judges are former prosecutors and will often do exactly what the ADA asks them to do.

    This whole post is disingenuous. Prosecutors have a vested interest against some form of bail reform. Ultimately the decision to set bail is the judge’s, but to say DAs have nothing to do with the system is garbage.

  • JohnM
    10 February 2017 at 9:10 pm - Reply

    The banality of evil in action…