Justice System Tuesday: To Bail or Not To Bail That is The Question –

Black’s Law Dictionary defined bail as: “v. To procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.”

A court speaking tells us it is : “To procure release of one charged with an offense by insuring his future attendance in court and compelling him to remain within jurisdiction of court. Manning v.State ex rel. Williams, 190 Okl. 65, 120 P.2d 980, 981.”

I really did not have to go to Black’s Law dictionary to understand what bail is all about. A person, presumed innocent, is charged with a crime. When before a court, the judge has two basic choices: hold him or her in custody, or, release the person on his guarantee (or someone else’s) that the person will return to face the charges at some future date.

Bail when given can be based on the word the person that he (or she) will come back without requiring any security for it; or require the person to put up some security important enough to the person (or the person putting up the asset) that he (or she) will not want to lose it by not coming back.

Thus we have the either or dilemma and the confusion surrounding it. Is it not time we do away with it all together? Why not simplify the system and bring it into the 21st century by tossing out the word bail and coming up with a new word or concept to move forward.

The idea of imposing $1,000, or $10,000 or even $100,000 bail is for some people the equivalent of saying go to jail when it is clear that the person will never be able to raise that amount of bail.  Why then go through the charade?

Or suppose bail is $1,000, or $5,000, or $20,000 or $25,000 do you think if the person raises that amount he or she will be motivated to come back because of that alone? I suggest not one of those sums will bring a person back to the court who is not interested in returning.

I suggest we come up with a new system that makes it easier on judges to move the cases through the courts so that they can attend to more important business than deciding between the $15,000 asked for by the prosecutor and the $2,000 asked by the defendant’s counsel. I seek to have judges given the time to deal with more difficult decisions. .

What, you say: “everyone gets released with no security!” That’s  true, the presumption is everyone gets released unless the prosecutor files along with the charge a request for a hold. Think of it. The person should be released or held; one or the other. Treat everyone the same. A $200,000 bail on a rich man is  equivalent to a release; on an average man is equivalent to being held. Yes, some can pay for a bond or put up a residence but why have to be out of pocket for doing that? If the defendant wants to flee none of that will hold him.

The time the judge is freed from trivia he or she can use it to examine the hold request. It should be standardized and an affidavit should be filed along with it. The judge could then ask for more information, speak to witnesses, request information from defense counsel, and take whatever steps are necessary but may not engage in a mini-trial, nor give the defendant the right to cross-examine or confront the witness.

Our judges are fully capable of making these decisions. A hold must be decided on in three days or the defendant goes free. If the hold is upheld, the defendant can appeal the judge’s decision in an expedited appeal to the Appeals Court for a hearing which must be within a week from the time of the original hold.

It is a simple procedure that will expedite the processing of cases, the time people spend in court, and allow judges to make more important decisions. Those being held will have the hold reviewed by two judges.

Isn’t it time to stop the charade? Isn’t it time for a change? Let’s do it.

10 thoughts on “Justice System Tuesday: To Bail or Not To Bail That is The Question –

  1. Speaking of wastes of time, why swear people in? A Bible? What’s that? Is the swearing in just so that if a person is found to ne lying they can be charged with perjury? You’re in a court. Tell the truth of face perjury charges. Why have an atheist sworn in? Fingers are crossed. What do you do if a witness is asked if they are going to tell the whole truth, nothing but the truth……, and they say “No”? Swearing people in is foolish to me. I don’t get it.

    1. Honest:

      Good point. I’d have to guess that like most things in the law they continue along without anyone questioning why. That’s why a lawyer who had been in a coma for 150 years could wake up and go into court the next day and not miss a beat unlike any other profession. I assume swearing on the bible was a custom used in the Common Law days in England when there were nothing but Christians and the belief was that if you lied after swearing to tell the truth a bolt of lightening from heaven would strike you down dead. It would have been nice if that were the case.

      Fingers crossed are prevented because one hand is on the bible and the other is in the air so everyone will see they are not crossed. As for a person saying he would not tell the truth after being sworn in I’m reminded of a conversation I had with a judge yesterday who told me the story of a guy telling another guy. “I know I’m a liar. I lie all the time. That’s all I do is lie. But this time I’m telling the truth.” I do not think anyone would tell the judge he is not going to tell the truth but would just do it. Although, it is an interesting question that could arise when a person is forced to testify by the government. I’m surprised lawyers have not dealt with it before. What would be done if such a witness said: “I don’t believe in taking oaths to tell the truth” rather than outright saying he won’t tell the truth.

      Bottom line, as you said it is foolish. So is the oath the president takes to protect the Constitution. It all boils down to us not looking behind the screen and seeing that there is no wizard of oz but some old guy pulling the levers conning us. Maybe that’s where the deep state is located?

    1. “BREAKING: Chicago erupts with as many as 200 stores looted after police involved shooting”
      ByStephen Oatley
      August 10, 2020

      “Cleanup was underway Monday after a night of destruction where protesters vandalized and looted numerous stores on Boston’s Newbury and Boylston streets and in Downtown Crossing” June 1, 2020

      Since May, rioters and looters have caused hundreds of millions of dollars in damages in scores of cities across America. See New York, Minneapolis, Atlanta, Austin, Dallas, Los Angeles, Portland, Seattle, et cetera, et cetera

  2. “Don’t kill the job!” cried the former public-sector attorney when he learned of a (GASP!) computerization initiative in some city hall department.

    That comment makes you wonder how courthouse employees of all levels perceive courthouse automation and process improvement.

    Same goes for employees at the Registry of Motor Vehicles:

  3. “Release or Hold” omits the third option of Bail, posting cash which will be lost if the defendant doesn’t appear. Bail Bond companies are no longer a factor in Mass. and haven’t been for decades. What’s time-wasting for judges is dealing with multiple default removal hearings. A defendant is released, doesn’t show, a warrant is issued and he appears late in the day With some excuse to remove it, in hopes that the judge won’t make the Court Officers wait for a late pickup by the jail van.

  4. wa-llahi! NC, spoken like a true fascist. The bail bond system is a profit making racket financed by the big insurance companies. I know a bit about bail. It seems NC, that you don’t.

  5. No. It is a meaningless reform. Cash bail was a reform of the bond system where one posted a bond for a non refundable fee. Cash bail does provide an incentive to return. Often times family members post it and make sure the relative appears so they get their money back. In serious cases the defendant is going to be held without bail or on five million dollars. On less serious cases most will be released anyway. The exception is the defendant with a long record of defaults. Why have an all or nothing choice? In Boston they already have a speedy review by a Superior Court Judge. 2. Ending cash bail is a bogus reform. Calling the Police and the Court system racist is a bogus charge. Telling the Police to stand down in the face of rioters, looters and arsonists is a huge blunder encouraging more disorder. Democratic Rep. Pressley is calling for more unrest. Typical liberal.

    1. NC:

      You miss the point. Cash bail is not going to bring a person back who does not want to come back. Why have it in the first place when it has to be so low that the person can raise it. If a person belongs on the street let him or her be there without the silliness.

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