About two and a half years ago, New York State, in a paroxysm of progressive beneficence, overhauled its cash bail system for those accused of crimes. For the past couple years, only those accused of violent felonies were required to post bail. The rest were simply released after arrest and arraignment. Since the process of discovery, indictment, pre-trial conferences, motions, jury selection, and trial can take months or years (The State is allowed six months to indict after arraignment), a defendant who doesn’t have the means to post bail can languish in jail for a long time before getting a chance at acquittal.

From a libertarian perspective, there is merit to the argument that bail is itself a punitive measure, especially given the time the process takes to run its course, and especially in the cases of the poor and minorities. While a speedy trial is guaranteed by the Sixth Amendment, the reality is that our system is plodding, our prosecutors are often overloaded, and our public defenders even more so. This makes “bail used as punishment” a legitimate concern.

The flip side of the coin, however, is the matter of public safety. Even an efficient court system, loaded with plenty of attorneys for both sides of a prosecution (those who have the means to hire private counsel aren’t of real relevance here, since they can usually also afford to post bail), will take time to process an accused person. Post-arrest discovery alone can take weeks.

An accused individual may thus have high bail set (or denied entirely) if a judge deems him a risk to the public.

Except in New York, that is. Such discretion was removed from judges’ hands by New York’s 2019 bail reform.

Still, purists argue that without due process, incarcerating an individual upon accusation rather than conviction is a violation of due process and the Non-Aggression Principle.

That is a bridge too far for this libertarian. Government has a duty to protect individuals’ rights, and that duty includes physical safety. Someone standing accused of violating another’s rights shouldn’t automatically remain free to repeat while awaiting trial if there is sufficient reason to believe that he is likely to repeat. I doubt many daddy’s-cellar-dwelling social media trolls would be OK with letting Jeffrey Dahmer or John Wayne Gacy out on their own recognizance while awaiting trial. And, indeed, the bail-reform statute in New York does permit bail (or no-bail hold) in the case of violent felonies.

Then there’s the Constitution, wherein the 8th Amendment prohibits “excessive” bail. Such a prohibition presupposes the legitimacy of bail as part of our criminal justice system.

Many criminals are stupid – that’s the primary reason crooks get caught – but not all, and even the dumb ones aren’t brain-dead. People react to changing rules and stimuli, and it took little time for New York’s perps to figure out the limits of what they could do within the new no-bail parameters. By one accounting, 90% of gun-possession arrests end up with the accused back on the street, often within hours. Ditto for most non-violent theft. The latter, when coupled with progressive prosecutors, literally makes crimes such as shoplifting risk-free in some jurisdictions (hello, San Francisco).

New York is a microcosm of a broader bail-reform movement, especially in blue states.

No surprise, the reformers went too far. Modest changes are certainly warranted, but nuance doesn’t grab headlines or make for tub-thumping campaign speeches, so excess was inevitable.

No surprise, crime in New York has risen since the bail reforms were instituted.

No surprise, the public was not pleased, and voiced its displeasure via the ballot box. Eric Adams, a former cop running on a public safety platform for NYC Mayor, beat out a passel of more progressive candidates in the Democratic Primary, and got essentially rubber-stamped into Gracie Mansion in a city where two-thirds of registered voters are Democrats.

A day after a man drove his SUV into a parade in Waukesha, WI, killing five and injuring dozens, the matter of bail reform vs public safety has returned to the spotlight. The alleged perpetrator, Darrell Brooks Jr., who has a long history of criminal violence, including sexual abuse, drugs, battery and domestic abuse, is out on bail for “multiple pending cases … involving second-degree reckless endangerment and being a felon in possession of a firearm.” Another source notes, “Brooks was charged in July 2020 with two counts of reckless endangerment and possession of a dangerous weapon as a convicted felon before he posted $500 bail in February,” and “was charged on Nov. 5 with allegedly resisting or obstructing an officer, bail jumping recklessly, endangering safety, disorderly conduct and battery.”

One of the pending charges was… wait for it… allegedly running the mother of his child over with his car – the same car he (again, allegedly) drove into the Christmas parade in Waukesha.

Bail in the latter case, originally set at $10,000, was later reduced by the state to $1000. The District Attorney, John Chisholm, who is now looking to investigate the ‘inappropriately low’ bail, does appear to be cut from the same progressive cloth that enrobes bail-reform legislators.

Right-leaning media has pounced, seizing the opportunity to lambaste the progressives who’ve been pushing for bail reform or abolition – either legislatively or via prosecutorial discretion. And, it does appear that Brooks was the very sort of defendant that the system should think long and hard about before releasing back into the public after arrest, rather than imposing token bail.

I reiterate – some degree of bail reform is warranted. Poor people should not be coerced into plea-bargains by the mere threat of sitting in jail for a year while their case works through the system. Many reformers, however, display an alarming proclivity for denying that there are bad people out there, people who provide ample reason for being removed from circulation upon arrest. As is too often the case, such debates turn into binary yes-no shouting matches, with nuance being trampled like dandelions under a cattle stampede. Defund-The-Police advocates share a similar myopia – in their case a belief that policing causes crime, and that social workers and community leaders could supplant cops in minority and poor neighborhoods.

And, lo and behold, someone with a long history of criminal anti-social behavior allegedly murdered five innocents and injured dozens more.

Our elected leaders are obligated to balance the rights of the accused with the rights of those they have harmed, and might harm again. The State wields enormous power in the realm of criminal prosecution, and time and again we have seen that power abused. Even our Vice President, who ran on a progressive agenda, not only weaponized the power of the District Attorneys’ offices (San Francisco, then California) she headed for political purposes, she also resisted the overturning of wrongful convictions. We, as citizens, must demand that our criminal justice system be about justice, for victims, for the accused, and for the public at large.

It’s a fine line and a heavy burden. It requires a combination of balanced laws from our legislators and individual discretionary power vested in our front-line judges, and even the best will not be perfect.

But, it is clear that politicizing the criminal justice system, as is the case with the current “social justice” and “equity” oriented bail reform movement, isn’t advancing either the cause of individual rights or the obligation of public safety.

Unfortunately, the politicization is a swinging pendulum, and it’s already likely that the reaction to the Waukesha mass murder will thwart any “good” bail reforms, and leave in place a system where a poor person who believes he’d prevail in court is subject to coercive plea-bargaining in the face of high bail and long pre-trial incarceration.

At the risk of redundancy, there is a middle ground here. There is room for improvement, where the likes of Darrell Brooks are more likely to be kept from further harming the public (where a felon-with-a-gun probation violation gets you tossed in the clink instead of getting out on a mere $500 in bail), but the system doesn’t stack against the poor. That middle ground would help quite a bit with community relations, as well.

Peter Venetoklis

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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