Justice Department Says Poor Can't Be Held When They Can't Afford Bail

Tidewater said:

One of the great achievements of English common law is realizing the ideal that all people are equal before the law. The rich aren't "more equal" than the poor. Except now, the poor, it turns out, are a little more equal than the rich.

This is yet another case in which the Justice Department (which should be known by its actual purpose, "The Department for Thwarting the Constitution Because its Bureaucrats Do Not Like What It Says and Utilizing the Legal System for the Partisan Advantage of One Party over Another") has decided that it does not like imposing bail on poor people. Despite the fact that bail has been around for almost 750 years. Bail is just offered for certain less serious crimes so the accused does not have to stay in jail until the trial.
Now, all of a sudden, Justice "discovers" that "Shazaam! Imposing bail on people who cannot afford to pay is unconstitutional," based not on what has traditionally been imposed in the past, and not based on some recently adopted amendment to the Constitution, but on the whims of Justice Department bureaucrats. This is not the way a nation of laws works. This is how banana republics work. The sooner the "Justice" Department gets thrown on the dustbin of history, the better.

And before 92 chimes in with a quip he thinks is funny, $160 for public intox is a little steep. Lead a campaign to change the law.

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Uh... no. This is not how banana republics work. This is how constitutional republics work. TW, appeal to common law requires research, not splattering idealization on a topic and hoping something sticks. Common law is a good and important tradition, and over the course of the tradition some thorny issues received repeated treatment such that many examples helped refine the rules. The beauty of common law, as opposed to codes, is that it is flexible in its ability to deal with different circumstances. The downside of common law is it is highly susceptible to abuse of an corrupt or even just stupid magistrate, which is why it is often reformed and reigned in. In the case of English common law, the bail abuses were in fact reigned in by the English Bill of Rights of 1689. Know about it? It is one of the most important documents on the relationship between government and individual liberty, and was extremely influential on our own Declaration of Independence and our Constitution and out Bill of Rights. Among the principle reforms was reasonable bail and incarceration. No excessive bail, no excessive fines imposed, no cruel and unusual punishment. You've already conceded the bail of $160 was exorbitant. Keeping someone in jail for six days for an offense that couldn't carry a penalty more than a night in jail is cruel and unusual punishment. This is a very "traditional" and "constitutional" decision, even if it was made by the present JD.

LA4Bama said:

Uh... no. This is not how banana republics work. This is how constitutional republics work. TW, appeal to common law requires research, not splattering idealization on a topic and hoping something sticks. Common law is a good and important tradition, and over the course of the tradition some thorny issues received repeated treatment such that many examples helped refine the rules. The beauty of common law, as opposed to codes, is that it is flexible in its ability to deal with different circumstances. The downside of common law is it is highly susceptible to abuse of an corrupt or even just stupid magistrate, which is why it is often reformed and reigned in. In the case of English common law, the bail abuses were in fact reigned in by the English Bill of Rights of 1689. Know about it? It is one of the most important documents on the relationship between government and individual liberty, and was extremely influential on our own Declaration of Independence and our Constitution and out Bill of Rights. Among the principle reforms was reasonable bail and incarceration. No excessive bail, no excessive fines imposed, no cruel and unusual punishment. You've already conceded the bail of $160 was exorbitant. Keeping someone in jail for six days for an offense that couldn't carry a penalty more than a night in jail is cruel and unusual punishment. This is a very "traditional" and "constitutional" decision, even if it was made by the present JD.

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Three points in response.
1. How was the English Bill of Rights adopted? By an unelected English Justice Department bureaucrat or by an elected Parliament? I believe that unelected, unaccountable bureaucrats changing the Constitution because they don't like what it says is fairly "banana republic-like."
2. To have a feel for what constitutes "cruel and unusual punishment" or "excessive bail," one would have to look at what the punishment was for public intoxication in the United States at the time ratification.

I just looked up some of the colonial laws on public drunkenness. In Massachusetts (as of 1667) the fine was ten shillings. In Virginia, the statute of 1632, called for the person found to be drunk in public "for the first time he is to be reproved privately by the minister, the second time publicly, the third time to lie in bolts 12 hours in the house of the provost marshal and to pay his fees, and if he still continue in that vice to undergo such severe punishment as the Governor and Council of Estate shall thinke fit to be inflicted on him."

3. I said $160 was steep, but I meant in the sense that, if I was a state legislator and a bill came up to reduce it, I would vote in favor. In the meantime, it is the law. Dura lex, sed lex.

This is the rub for me. It is troubling path to flaunt ignorance of the law. It is certainly not the standard operating procedure I'd prefer taking in changing the problems our country - every country - faces. At the same time, I think it is fair to question whether a strong stance in favor of recognizing the law of the land is subversive to a more progressive view on how things ought to be structured. Those who benefit from the status quo can use the law as a shield at times.

For example, I think states flaunting disregard towards the federal marijuana laws are doing the right thing in their own way. If the feds want marijuana out of Colorado then they can dang well spend every dime of their budget trying to make it happen (they won't). Colorado played the game out in their heads and decided they could probably save money on the legal side and gain money on the tax revenue side by legalizing marijuana within their borders. I just worry that similar changes across the board in the criminal justice system are unlikely to take root like the marijuana movement. It is a recreational/leisure drug in the same potency tier as alcohol. Some people like it. Many people think it is way over-prosecuted. This movement has a good synergy for relatively rapid change.

I doubt more nuanced details of the criminal justice process will ever have the same force behind it hoping for change. In most states - like our own - we are so single-party dominated and accordingly corrupt that I doubt anything of intellectual merit will be considered seriously. Alabama will be the last to do anything sensible because there is simply no political motivation. One party dominates and everyone is pretty much in a defeatist mindset about the whole government. I'm not saying that Alabama needs to go blue. But I think many Southern states would benefit from a substantive competition that churns out the usual suspects instead of just replacing the old con man with a new one. We're not going to ever get that if we just elect the guy who talked about Jesus with a rifle slung over his shoulder the most.

rgw said:

I think the problem is we screw over too many people for nonviolent crimes where the criminal justice system is just extracting their pound of flesh from the offending party to grease the wheels and keep the machine churning along.


I don't think anyone is going to shed a tear over a DUI not being able to make his bail. But people do get hot over this court fee, bail, and other expenses that are extracted from people for marijuana possession charges.

The problem here is a symptom of a larger problem with the structure of our criminal justice system which has become an unwieldy beast hungry to extract every last fine they can levy upon nonviolent crimes. We need to change the laws but there is too much interest in keeping the status quo. You start decriminalizing things and taking a more rehabilitation approach to drug use then all the sudden law enforcement agencies are getting their budgets cut and the lobbyist who benefit from a big DEA or FBI or whatever will pound the ground with fear mongering to scare the chumps and slack-jawed yokels.

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Full Banjeaux.

And a candidate for POTY.

Seems to me this is turning into a free the marijuana thread. The point of the thread is being totally missed. From what I can tell of the statement from the Dept of (in)Justice this could apply to any crime that a poor person who can't afford bail might be charged with up to capital murder. Is this what we really need as a supposed free society? As people, we have the right to try to change laws thru our reps and if our reps don't rep what the majority of the constituents want then vote them out and vote someone else in who will.
Do we really want the Dept of Justice "ruling" by decree much as the current POTUS has?

What ever happened to "on their own recognizance" for minor offenses with no real flight/no show risk?

Don't do the crime if you can't do the time!

BamaHoHo said:

Don't do the crime if you can't do the time!

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Nobody's saying those convicted shouldn't do time

BamaHoHo said:

Don't do the crime if you can't do the time!

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Or rather, don't get arrested if you can't pay bail to get yourself out of jail so that you can continue with your life while you wait for your opportunity to prove your innocence.

Tidewater said:

Three points in response.
1. How was the English Bill of Rights adopted? By an unelected English Justice Department bureaucrat or by an elected Parliament? I believe that unelected, unaccountable bureaucrats changing the Constitution because they don't like what it says is fairly "banana republic-like."
2. To have a feel for what constitutes "cruel and unusual punishment" or "excessive bail," one would have to look at what the punishment was for public intoxication in the United States at the time ratification.

I just looked up some of the colonial laws on public drunkenness. In Massachusetts (as of 1667) the fine was ten shillings. In Virginia, the statute of 1632, called for the person found to be drunk in public "for the first time he is to be reproved privately by the minister, the second time publicly, the third time to lie in bolts 12 hours in the house of the provost marshal and to pay his fees, and if he still continue in that vice to undergo such severe punishment as the Governor and Council of Estate shall thinke fit to be inflicted on him."

3. I said$160 was steep, but I meant in the sense that, if I was a state legislator and a bill came up to reduce it, I would vote in favor. In the meantime, it is the law. Dura lex, sed lex.

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1.It was adopted by an act of parliament, but you know it was implemented by an executive branch, whatever that happened to be back then. Our founding fathers were not setting up a banana-republic when they placed executive power in a separate branch. In this case, the bureaucrat didn't change the constitution, but implemented it were its implementation was lacking.

2.Great, but the notion of cruel and unusual can evolve without corrupting the Constutition, just as fines can. The Constitution is not there to freeze value judgments in time, not to enslave the present to the past, but to empower the free individuals who are alive and kicking at any given time to live freely, i.e., according to their own judgment, arrived at collectively, and enforced with equality before the law. Even an originalist interpretation of the Constitution must believe the Constitution exist to empower freedom and not freeze us into the value judgments of 1632.

3. Equality is important, but not necessarily conceived as exact, 1-1 proportion. You can take a 4 term proportion, as A is to B, so C is to D. If for simplicity we imagine a corporal punishment, it does not follow that the executioner of the punishment ought to strike a woman exactly as hard as he strikes a man. It is not equal to strike a woman with the same force as a man, due to their physical differences. It might be proportional to strike a woman with a proportionately lesser blow as a punishment, such that it causes approximately equal pain or damage. It would be cruel to strike a woman as hard as a man, and needless since the less blow would accomplish the goal of inflicting the "right" amount of pain. Likewise with monetary inequality, most fines are set for the average person, but the poor (and the rich) are not average, and a judicious judge, seeking equality in the implementation of the law's intent, will make adjustments according. This is known as equitable justice, and it is at least as old as Aristotle's Nicomachean Ethics.

LA4Bama said:

1.It was adopted by an act of parliament, but you know it was implemented by an executive branch, whatever that happened to be back then. Our founding fathers were not setting up a banana-republic when they placed executive power in a separate branch. In this case, the bureaucrat didn't change the constitution, but implemented it were its implementation was lacking.

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Sovereignty, in the English system, lies with the king-in-parliament. Effectively today that means just Parliament, since the King has not withheld the royal assent since 1707.
The Founders also carefully balanced powers between the several state governments and the general government.

James Madison said:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

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2.Great, but the notion of cruel and unusual can evolve without corrupting the Constutition, just as fines can. The Constitution is not there to freeze value judgments in time, not to enslave the present to the past, but to empower the free individuals who are alive and kicking at any given time to live freely, i.e., according to their own judgment, arrived at collectively, and enforced with equality before the law. Even an originalist interpretation of the Constitution must believe the Constitution exist to empower freedom and not freeze us into the value judgments of 1632.

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It does not "freeze value judgments." Legislatures can change statutes at their pleasure. And the Constitution has an amendment process. It is not easy, but it is there. How does one amend a bureaucratic dictat?

3. Equality is important, but not necessarily conceived as exact, 1-1 proportion. You can take a 4 term proportion, as A is to B, so C is to D. If for simplicity we imagine a corporal punishment, it does not follow that the executioner of the punishment ought to strike a woman exactly as hard as he strikes a man. It is not equal to strike a woman with the same force as a man, due to their physical differences. It might be proportional to strike a woman with a proportionately lesser blow as a punishment, such that it causes approximately equal pain or damage. It would be cruel to strike a woman as hard as a man, and needless since the less blow would accomplish the goal of inflicting the "right" amount of pain. Likewise with monetary inequality, most fines are set for the average person, but the poor (and the rich) are not average, and a judicious judge, seeking equality in the implementation of the law's intent, will make adjustments according. This is known as equitable justice, and it is at least as old as Aristotle's Nicomachean Ethics.

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Making some people more equal than others is an innovation. And not a good one.
Why do you suppose the legislature did not just impose a fine (or bail, in this case) equivalent to X% of the guilty party's income or wealth? They could have done so, and that would have "equitably" imposed pain on the guilty.

BamaInMo1 said:

Seems to me this is turning into a free the marijuana thread. The point of the thread is being totally missed. From what I can tell of the statement from the Dept of (in)Justice this could apply to any crime that a poor person who can't afford bail might be charged with up to capital murder. Is this what we really need as a supposed free society? As people, we have the right to try to change laws thru our reps and if our reps don't rep what the majority of the constituents want then vote them out and vote someone else in who will.
Do we really want the Dept of Justice "ruling" by decree much as the current POTUS has?

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Yeah, sorry for that, it was just an easy topic to broach related to the problems with the criminal justice system.

LA4Bama said:

1.It was adopted by an act of parliament, but you know it was implemented by an executive branch, whatever that happened to be back then. Our founding fathers were not setting up a banana-republic when they placed executive power in a separate branch. In this case, the bureaucrat didn't change the constitution, but implemented it were its implementation was lacking.

2.Great, but the notion of cruel and unusual can evolve without corrupting the Constutition, just as fines can. The Constitution is not there to freeze value judgments in time, not to enslave the present to the past, but to empower the free individuals who are alive and kicking at any given time to live freely, i.e., according to their own judgment, arrived at collectively, and enforced with equality before the law. Even an originalist interpretation of the Constitution must believe the Constitution exist to empower freedom and not freeze us into the value judgments of 1632.

3. Equality is important, but not necessarily conceived as exact, 1-1 proportion. You can take a 4 term proportion, as A is to B, so C is to D. If for simplicity we imagine a corporal punishment, it does not follow that the executioner of the punishment ought to strike a woman exactly as hard as he strikes a man. It is not equal to strike a woman with the same force as a man, due to their physical differences. It might be proportional to strike a woman with a proportionately lesser blow as a punishment, such that it causes approximately equal pain or damage. It would be cruel to strike a woman as hard as a man, and needless since the less blow would accomplish the goal of inflicting the "right" amount of pain. Likewise with monetary inequality, most fines are set for the average person, but the poor (and the rich) are not average, and a judicious judge, seeking equality in the implementation of the law's intent, will make adjustments according. This is known as equitable justice, and it is at least as old as Aristotle's Nicomachean Ethics.

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Whose role is it to interpret the constitution? Certainly not a bureaucrat's job.

Nevertheless, as long as bail is charged to all or not charged to all, I'm good.

It's interesting that the defendant was deemed indigent even though he had the discretionary financial resources to become publicly intoxicated.

Also, I'll note that the DOJ may not want to pursue an "equal protection" argument around ability to pay -- that argument will cut both ways. The DOJ may end up making it easier to use such an argument to defeat progressive tax rates, welfare benefits, and a whole host of other government programs that discriminate against some based on the ability to pay or not.