Tax payer funded bail?
In response to a recent and continuing topic of “no money bail” and the Department of Justices new social justice system to limit pre-trial bail, I ask WHY? The DOJ wants to put an end to pre-trial bail. The current White House administration has been embracing the get soft on crime hug a thug mentality. The amendment referenced to accomplish this travesty is the 14th amendment.
The 14th amendment is for equal protection! Does equal protection only apply to a person accused of violating a law and committing a crime? What about the victim? The person who endures a violent or real or personal property crime. The 14th amendment requires states guarantee the same rights, privileges and protections to all citizens.
Equal protection of the law is the right of all persons to have the same access to the law and courts and to be treated equally by the law and courts. Do we really believe that law enforcement officers make arrests based on income? I would hope not, the same way I would hope that law enforcement in the future would not have to.
The US census states that the current population is 324,443,202, which BJS states that 0.91% of the adult population is incarcerated. This is the percentage of people that the DOJ under the equal protection clause is focusing on as the court refused to extend to welfare, housing or education to all citizens. The current administration is more focused on incarcerated defendants who have violated the law. The other 99.09 % of law-abiding citizens are being excluded under equal protection.
BJS has admitted that the jail incarceration levels have been declining each year since 2007. The no money bail is the latest step by the Obama administration in encouraging the state courts to move away from bail.
We have a system of bail for a reason. It is part of the 8th amendment of the US constitution, which requires that bail shall not be “excessive “ (higher than is reasonable to assure the defendants appearance). Bail is not meant, as a form of release alone the main objective of bail is to guarantee the state that the defendant will be present for all future court appearances and the court of jurisdiction will be able to try the defendant bringing fourth a disposition and allowing the victim of the crime closure. Without requiring a defendant to post bail there is less incentive to show up for a court date. Then we have overwhelming amounts of bench warrants which law enforcement will never have the time to clear up.
The current bail system allows for cash bail, accommodation bail, percentage bail, property bail, personal promise to appear or commercial surety. The latest commercial surety also known as bail bondsman or bail agents have consistently out performed all other forms of release, this form of release has no tax consequence to the taxpayer and puts all financial responsibility on them.
The new idea to sell on the 99.09% of law-abiding citizens is a taxpayer program called pretrial services. This program is to do a scientific evaluation on each defendant that is incarcerated. The system scores each defendant and then recommends to the court (judge) already paid a super visional advisement and conditions to be imposed to reach a disposition of a court case. The taxpayer funds this program with no financial burden falling back on the PTR representative. The victim pays for the release of the defendant who broke the law against them.
The constitution? What about 1987 when the Supreme Court held that the only limitation imposed in the bail clause is that “ the government’s proposed condition of release not be excessive.” This is a constitutional argument (ADDITIONAL LAW SUITS)
By the public defenders office for defendants being released through these programs with ankle monitoring, drug tests or other programs. The referenced requirements of GPS, drug/alcohol testing, and various programs required pre conviction for accused defendants (a possible violation of constitutional rights) prior to sentencing. This is the plan to benefit these defendants at taxpayer expense? In addition to pre conviction requirements possibly being unconstitutional for the punishment of defendants prior to conviction, these supervision methods often place a greater financial burden on both the public and low income defendant than posting bail.
The 6th amendment states in all criminal prosecutions the accused shall enjoy:
Speedy trial, information on nature and cause of accusation, be confronted with the witness against them, process for obtaining witness in favor of them and has assistance of council for defense. Earnings and assets by each state limit the applying for and defense by the public defenders office. Why is this? Barry J. Pollack, president of the National Association of Defense lawyers applauds the efforts of the DOJ and current administration for no cash bail requirement. I wonder if he would applaud the same for the no cash lawyers required for the financially secure defendant.
The 9th amendment was set up to keep government from expanding power. The fact that the expansion of power is for such a low percent of US citizens leaves the question of WHY? The role of government is better served to look into rehabilitative treatment based programs for those post-conviction defendants whom are found guilty of the accused offense. Post-conviction programs uphold an individual’s constitutional right as not being punished prior to conviction, while alleviating the monetary burden from the taxpayer for pretrial service programs.
The bail process may not be perfect but it is not to blame. The courts must take a more active role in moving cases and prosecuting defendants in a timely manner. The court after conviction may require a program to benefit the defendant if the defendant truly embraces it. The addict may then get help for the addiction opposed to incarceration. Health professionals in secured facilities should treat the mentally ill. The violent offender should be locked away in a correctional facility. Monetary bail is not the problem merely the tool that assists in guaranteeing this result the most effective way.
Purpose for Bail
The criminal justice community typically recognizes a bail bond as a means for releasing a defendant from custody pre-trial. This assumption is correct in that a byproduct of posting bail is that the defendant is released from custody. However, the bail is posted for an entirely different purpose. In its simplest form a bail agent will act as surety in behalf of the defendant for a 10% premium based on the aggregate amount of bail set by a magistrate judge. Most people believe the bail agent is paid simply to gain the release of a loved one from custody. This could not be further from the truth. Bail is posted in order to secure the appearance of the defendant at future dates as required by the court of competent jurisdiction. Bail is accepted by the state as a financial risk pledged by the bail agent ensuring the defendant appears at each court date required until disposition. For example, a magistrate judge deems a $10,000 bond necessary to ensure the appearance at future court dates for a defendant. Should the surety deem the defendant desirable risk they may post bail for this individual. The bail agent would typically charge $1,000 premium, and require a family member to sign indemnification paperwork to guarantee the defendants appearance. The surety would then post a bail bond with the court of competent jurisdiction; in turn securing the release of the defendant pre-trial. Now that the defendant has been released the bail bond agent is financially responsible for the defendants competent fulfillment of the contract (appearance at all required court dates). If the defendant fails to appear in court the bail bond agent now has two options.
Donald F. Mescia III