Bail: the price tag of liberty?

THE date of birth on his criminal charge record listed the youngster staring up at the judge as a month short of 17. His build, however, was sturdy; and his scowl made him look much older. ``This matter is before Your Honor on a petition for bail reduction,'' the clerk intoned. ``The charge is disorderly conduct. Original bail was $10,000 with surety [i.e., bondsman], or $1,000 cash.''

Looking at the assistant district attorney, the judge let his surprise slip out. ``On a simple disorderly, a juvenile, at that, you're pressing $1,000? What will you want for a recidivist ax-murderer?''

``It does seem high, Your Honor, but the defendant has an extensive criminal history.''

The ``rap sheet'' supported the assistant district attorney's position. From age 11, the young man had regularly collided with the criminal-justice system: repetitive petty larceny (the record did not state details, but the judge guessed shoplifting); larceny of an automobile; wanton destruction of property; attempted arson; assault and battery.

Taken in toto, the litany looked like a personal declaration of war on society - and the kid was still, in legal terms, a juvenile.

``No question about the record,'' defense counsel was saying, ``but his mother is willing to take him back. Besides, just being in custody since they arrested him last night has taught him a real lesson. Most important, he has roots here; he's not likely to run.''

That the defendant might leave for distant parts was not, in fact, the judge's main concern. On the contrary, he was worrying more about the young fellow's sticking around.

Mulling over the facts, the judge could not help feeling that the apparent crescendo of anger and physical violence portended a tragic explosion, probably quite soon.

Even as he wrestled with the decision, another judge in the county was starting the trial of a 17-year-old accused of murdering a mother and two toddlers in their own home.

Was this youngster headed down a similar bloody path?

Even as the thought flashed into his mind, the judge felt intellectual discomfort. Bail, he understood, was supposed to serve just one purpose: giving defendants sufficient financial incentive to guarantee their continued appearance at all court proceedings.

Yet the public, he knew, thought bail should guarantee something else: public safety. Headlines frequently emphasized the public dissatisfaction with the bail system and the judges who administered it: ``Out On Bail, Rapist Strikes Again.''

So far, none of his own bail decisions had lit up Page 1. That fact, however, brought no joy. A judge, he believed, should isolate himself from the public's passions and prejudices. A judiciary that truckled to popular demand would first lose its self-respect, and soon thereafter, its independence.

Judges who habitually read imaginary headlines sacrifice their own judgment. It is hard enough to conform judicial performance to appellate-court demands. Bring journalists into the equation, and the judge becomes a cipher.

Besides, the judge told himself, putting people on high bail just to keep them off the streets impales the system on two spears of injustice: assumption of guilt; preventive detention. Public-safety bail requires a judge to conclude that (a)the defendant indeed committed the crime charged; and (b)he will probably (or worse, constitutionally speaking, that he may possibly) commit another.

Apart from assessing the defendant's past and future on mere judicial hunchwork, public-safety bail injects an insidious venom into the stream of justice.

Bail, after all, simply means money. Thus, whenever a judge, for whatever reason, sets a ``good, stiff bail,'' he puts a price tag on liberty. Whoever can pay it walks free.

Because the young brawler's family could not possibly raise $1,000, the government's recommendation amounted to a demand for preventive detention, or pretrial conviction.

Indeed, anyone short of money who faces even light charges anywhere far from home will almost certainly stay behind bars until his case comes to trial.

By comparison, bail of $100,000 on a millionaire's son up for drunken-driving homicide will probably only cause the accused slight delay and brief inconvenience.

Fairness, liberty, public safety, abhorrence of arbitrary detention, scant prognosticatorial gifts, constitutional imperatives, and an earnest desire not to find his picture on the nightly news. All these rumbled inside the judge's conscience as he began writing out his decision.

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