Thursday, April 3, 2014

The Bail Papers - Volume 3: Should Bail Be Less American?

I have recently been reminded again of how the government sponsored "free" bail champions argue that America should abolish financially secured release in favor of more "socially conscious" systems such as those prevalent in some other countries. They cite specifically England. Our Mother Country, they reason, does not utilize the practice of financially secured pretrial release, and therefore neither should we.

In other words, when it comes to release pending trial, America should "get with the program" and be like England. Why? Is it because local government subdivisions (cities and counties) can maintain the same ratio of enforcement personnel per pretrial defendant as does England? No, it isn't that. Is it because the demographics of our country are no different than those of England? No, not that either. Is it because America and England occupy the same basic land mass and therefore the opportunities of remaining an undetected absconder are about the same? Nope, not that. Well, is it because it is just as easy to flee England as it is to flee America? No. Well, is it because any legitimate comparison of the effectiveness of America's  pretrial release practices to England's has been done. No, that is not it either.

Why then, one if driven to ask, should America abolish it's current system in favor of that of some other country? Their answer would be rather obvious, and it would be simply this: America should change it's practice in favor of England's, because in England an accused does not have to secure his release pending trial in order to ensure his reappearance as directed by the court.

One might ask: It can't be that alone, can it? The clear answer is: For them, yes it can. It all, in their eyes, issues from the proposition that requiring financially secured release is so wrong that literally any alternative is preferable. An objective person might wonder: Why should not whichever approach best assures the appearance of the accused before the court so that the rights of all the people can best be served be the chosen approach? That's a pretty fair question, wouldn't you say? But it is apparent that for the "free bail" advocates that's not acceptable. Because for them, whether it works best or not, financially secured release is so patently unfair to the accused that the practice should be forbidden, and that's it. Period. End of discussion. Case closed.

And until one comes to understand their intractability on this one issue, one will never be able to comprehend their stance. You can argue all you like that all credible studies demonstrate that with financially secured release local justice systems will be administered more effectively, there will be less criminal misconduct among those released and thus fewer crime victims in the community. It will fall upon deaf ears unfortunately, because they appear to be so blinded in their mission of not holding the accused accountable to answer to the charges against him that they just cannot hear or see anything else.

This, in my opinion, is not because those enemies of financially secured release don't care or because they are bad people. Quite the contrary: the ones I know are fine people and they have big hearts. But they have, in my opinion, become too swept up in their belief that if we treated the accused more graciously all would work out well in the end. They argue that how one is released should not be a punishment, and they are right about that. Where they seem to go astray is by forgetting that neither is it to be a reward.

I suppose that the thing that is so strange in all this is how "overboard" the "anti-secured release" spokespersons seem to go. It appears that to them it has to be all one way: the defendant's way. But there is more at play than just being sure the system is not overly harsh with the accused. They are correct, certainly, when they say that we should not make it harder on the one being released than is absolutely necessary. But they are incorrect in holding that we should not apply sufficient conditions of release to accomplish the true ends of justice for all in the community.

It is true that you cannot cure bad behavior with mistreatment. But it is also true that justice means rewarding behavior according to its contribution to the order of society. And again I say: conditions of release should not be punitive, but neither should they be rewarding. Remember, the accused is only in custody because, based upon probable cause, he has committed a crime against the people. Asking him to reasonably guarantee that he will come back to court to answer those charges is not a punishment.

We don't need to go back to England. We already left there once.


  1. Right on! But, the reality is that the opposition is in power. Power translates to political influence and financial immunity and accountability. If we had the clout and the resources to hold them accountable we could prevail because we have the facts, the proof and the logic that private bail is the best system and in the interest of public safety and welfare. We can argue our case but the powers that can determine the system of pretrial release are not listening or care to implement it. Unfortunately we are witnessing America's demise as a capitalist country. It's in the hands of the political powers to be.

  2. If it works in Great Britain, then that is fine because they are an island. My point is that North America is much more vast geographically. A subject can merely switch coasts and virtually negate his chance of extradition in many cases EVEN if on the NCIC because of the expense for recapture. I love my English brethren as my family is from Blandford in Dorset. However, I would not necessarily follow advice from a country that showed up on our shore 240 years ago dressed in bright red coats and white britches. They were probably shot by the forbears of some of the folks we chase to this day!