Mimesis Law
18 April 2019

Bail Reform Idea: Force Judges To Practice The Law

July 27, 2015 (Mimesis Law) — After the plane touched down, we set off for the beautiful west coast of Ireland. Along the way, the radio played in the background, with the intermittent news story breaking up the pleasant Irish tunes. One story in particular caught my ear.   The Sunday Times had just published an article about a new law requiring Irish judges to state their reasons for setting bail.

We stopped about halfway to our destination for coffee and I pulled a copy of the paper to see if I had heard the story correctly. There it was, front page, with the title, “Judges Forced To Explain Their Reasons For Bail.”

Since I was driving, I was unable to read the article until later in the day, but the title alone had my mind racing. While we in America have spent the last few months talking about diversion programs and modified bonds and umpteen other levels of bureaucracy to wean us off our seemingly helpless addiction to bail, here was this lightning bolt of simplicity from a country where ‘simple’ seems to be the unifying ethos.

But then I read the article. I had allowed my own preconceived notions of the backward state of the American criminal justice system to shade my views of a single bolded sentence from a newspaper. Unlike my initial understanding, Ireland would now require its judges to provide their reasons for a decision to release or set affordable bail on someone charged with a crime. If a judge decided to remand or hold the person without bail, that determination would be presumptively valid and require no explanation.

For the time being, my love of Ireland would have to be confined to its pubs, coastlines, and witty residents. Their criminal justice system, or at least this one part of it, seemed to be moving away from progress and fairness. It is not difficult to guess how such a law came to be. One person was released on bail and then committed a horrible crime. We have seen the political exploitation of similar incidents time and time again in the U.S. Apparently, Irish politicians can fall prey to the same low-hanging fruit as our own game-show legislators.

Despite my disappointment at the dissipation of this real world example of true progress, the original idea stuck with me. American leaders seem to be unmatched in their ability to recognize a problem, and then compound that problem. Nowhere is this more apparent than in our criminal justice system, with mandatory minimums, drug laws, and a process that hides its foundational principle (the presumption of innocence) behind unending layers of assumed guilt.

We tend to exacerbate our societal problems through complex ‘solutions’ that do almost nothing to solve the original problem. We are currently immersed in this dilemma with our broken bail system. As we begin to recognize the inherent unfairness of locking people up for months and years without them being convicted of anything, we are seeing proposals to build a form of probation for people charged with crimes. The person who is arrested for, say, a drug possession charge, will be able to avoid a jail cell, which is good. This person will then be teamed with counselors, caseworkers, and monitors instead.

While many would argue that supplying services to those in need is always a good idea, we risk losing the proper purpose of criminal justice system when we continue to move it away from a basic determination of right and wrong. And just because an idea is better than jail, does not mean that it is the right idea.

But what if we were to eschew confounding complexity and simplify the bail process? This brings us back to the Irish idea that wasn’t. In our current process, the first judicial decision that is made in a criminal case is the bail determination. This ruling could arguably have a greater impact on a person’s case than any other step. A person who is released can wait out the slow march towards completion of discovery before making any final decisions. The person who is held on bail will almost certainly make decisions based primarily on what will get him out of jail instead of a reasoned valuation of the evidence against him.

The initial bail proceeding has always involved argument for and against bail by the appropriate advocates, and then the judge decides.  However, the fatal flaw in the process is that the judge’s decision is delivered like a Roman emperor giving a thumbs up or a thumbs down.  What is lost is any indication of why the judge has ruled that way.

What this has created is a part of the proceeding that operates almost entirely outside of the law. Sure, there are laws on the books about what factors a judge may use in determining whether to set bail, but there is no way to know if these laws are followed. In New York, for instance, judges are supposed to only consider specific (legal) factors, such as flight risk and strength of the case.

To anyone who has spent more than five minutes in an arraignment courtroom, they understand that judges actually use bail as a kind of pre-case sentencing. They hear a tale (mind you, no evidence) of that person’s criminal activity and the judge sets bail commensurate with their level of disgust at that person’s alleged crime.

After a judge decides that the defendant, who works full-time and lives a little over a par 5 from the courthouse, deserves bail for a low-level charge that will never carry a jail sentence, the available remedies for the defense are incredibly limited. In most jurisdictions, the defendant may petition a higher judge in what is known as a “writ.” That judge is allowed to overrule the lower judge’s bail determination, but is unlikely to. Since the first judge did not put their illegal reasoning on the record, the higher court judge will be remiss to find that they acted illegally and reverse the decision. Plus, if the defendant is released on their simple shoplifting case and then axe-murders a dozen people, we all know who the press and public will hold responsible for those deaths.

But what if a judge were required to state her reasons for setting bail? Then, we might see lawyers get an opportunity to do exactly what they are paid to do – argue the law.

Cynics may suggest that a judge can merely claim “potential flight risk” as the pretext for setting bail, the same way cops claim “illegal lane change” as the basis for an unlawful traffic stop. The difference though, is when an officer has a motorist pulled over, that person usually does not have their lawyer riding shotgun. Under the proposed bail system, though, a judge who wishes to hide behind pretext will no longer be able to just order the defendant rushed back to the jail cells before the attorney can raise an objection. Beyond illegal bail decisions being laid bare in open court, lower court judges will finally begin to face the truest form of judicial deterrence – rebuff by appellate court judges.

Discussion begets discussion and law begets law.  If judges are forced to explain their rulings at one of the mot critical stages of a case, then we will see an explosion of case law in the area, as those decisions are appealed.  This may sound cumbersome, but when our current system is contemplating having the criminal justice system become a social worker to everyone who happens through its doors, isn’t making lawyers practice law the much simpler approach?

6 Comments on this post.

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  • Jeff GAMSO
    27 July 2015 at 10:35 am - Reply

    Don’t believe it. Magic words are reasons. Abuse of discretion is a review standard. Bail determinations will start being overruled when appellate judges grow balls. (Except, of course, where I practice and all the judges are away above average in courage and integrity.)

    • shg
      27 July 2015 at 11:36 am - Reply

      You realize how many times the easy solution is “when judges grow balls”? The Rube Goldberg machine to which we keep adding exists primarily to overcome the fact that judges prefer not to do the unpleasant duties of office.

      Then again, when a judge does his job, all the other judges refuse to play with him anymore.

      • Jeff Gamso
        27 July 2015 at 11:47 am - Reply

        Sure. But I’m also in a jurisdiction where judges are by law required to do and conclude various things at sentencing and the case law generally holds that reciting words is sufficient – and frequently holds that failing to recite the required words is sufficient, too, because the judge did all the right things unless affirmatively declaring he did not.

        • shg
          27 July 2015 at 12:45 pm - Reply

          Sounds like a glorious circle. What’s not to like?

  • Bryan Gates
    27 July 2015 at 10:49 am - Reply

    Whenever laws such as the bail explanation requirement get enacted, the court system usually develops a form order. This allows judges to check a few boxes, fill in some minimal blanks and go on just as they did before.

  • Ken Womble
    27 July 2015 at 3:17 pm - Reply

    Agree that boilerplate “reasons” or “facts” often stifle argument, but a bail hearing is different. It is much more back and forth and the judge is far more exposed than during other proceedings. If they repeat the same generic statement to support bail 40 times during an arraignment shift, it will provide the lawyers a hell of lot more ammo than they currently have.