Saturday, June 16, 2012

Bail Setting Corruption; Lawlessness in Rule of Law

Here is a troublesome article about the Monterey judges playing games with bail-setting standards, which bespeaks a bigger issue than just Monterey County:

Judges in this state are increasingly out of control when it comes to bail setting, and it is not clear whether their malfeasance in that regard is due to ignorance or purposefulness.  But it is clear that the commission on judicial performance and the judicial council need to get involved to protect the public from these systemic abuses, lest our promise of being governed by the rule of law becomes increasingly fraudulent.

The law of the issue is not a matter of opinion, but a matter of well-established constitutional doctrine.  Without presenting an exegesis of the development of the relevant standards, a brief summary is in order.  State judges are sworn to uphold the United States Constitution, and when there is inconsistency between the federal constitutional standard and any other standard, they must follow the federal rule.  For a bailable offense, bail set in an amount greater than that necessary to guarantee appearance in court is unreasonable under the 8th Amendment to the federal Constitution.  On the politics of bail settings, one hears much about state and local concerns for public safety, and about presuming the truth of the charges, and about bail schedules, and about all sorts of fiddle-faddle to accommodate various political interests, but all of those political concerns must yield in the face of the constitutional standard of individualized assessment of flight risk, period.

But judges, or too many of them, just can’t seem to get their heads around the clear and simple and controlling rule. My paralegal can read the Constitution, why can’t they?  They keep tinkering with schedules and blathering about public safety, with rare invitations to the government to supply proof of flight risk.  Bails get set so high in this state, and in various counties of the state, in comparison to other states and the federal prosecution standard, that one starts to suspect that the judges must be getting re-election campaign fund kickbacks from the insurance companies that own bond companies.

There is no way an accused person in Monterey County is a greater flight risk than an accused person in any other county – these judges are playing politics with constitutional standards, all the while embracing the artifice that the judiciary is not a political branch.  No politician is more political than the one who haughtily claims to be above the political fray.

Every judge who voted for this non-particularizing scheme, and every one of them who sets any bail without an evidence-based flight risk assessment, should be reported to the commission on judicial performance.  My clients are scolded [or worse] by the system for not following the law; more than mere scolding should issue against judges flouting constitutional law in a way impacting individual liberties.

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