Crime

Prosecutors Admit They're Abusing The Bail Process And The Media Just Cheers Them On

You can keep someone in jail for being a threat; you can't keep them in jail for being a credit risk.

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I know it’s been a long time since Dog The Bounty Hunter went off the air and far longer since the peak 1980s glory of The Fall Guy, but bail is really pretty simple. It’s the coat check of the pre-trial criminal justice system: the government has already decided that it’s OK to drop the defendant off with the public, they’re just haggling over the price.

This cannot be stressed enough… at the point the government sets bail they have conceded that they’re cool with someone being released.

And yet we still have to deal with stories like this one from the Boston Globe breathlessly hyping that a bail fund is posting bond for a guy with a pending rape charge as though the bail funds are the ones who should feel responsible for putting the public at risk. And prosecutors and law enforcement from the state’s AG on down are right there in this article jumping up and down about it.

This shouldn’t require explanation, but if prosecutors think a defendant shouldn’t be released then the prosecutors can have that argument in court.

The Globe story bemoans that a registered sex offender was released on a measly $15K bond. That does seem bad! An accused rapist with past convictions absolutely falls into the category of someone who should be considered for pre-trial detention. So perhaps the bail shouldn’t have been set at $15K?

Massachusetts lets prosecutors seek a finding of “dangerousness” that would preclude any possible bail. They didn’t seek that in this case and that fact should put a full stop to their complaints that he got released.

“It was dangerous and irresponsible for the Massachusetts Bail Fund to post bail for [Shawn] McClinton, who was facing serious felony charges and has a violent criminal past,” said [Massachusetts Attorney General Maura] Healey, who oversees nonprofit groups statewide, in a statement.

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Maybe, just maybe, the bail fund shouldn’t be the one making private determinations of who is and isn’t a threat and instead that power should go to — and I’m just spitballing here — prosecutors armed with evidence making a petition to a judge.

Suffolk District Attorney Rachael Rollins said her office did not seek a dangerousness hearing to hold McClinton without bail in part because prosecutors feared the hearing itself could traumatize the victim.

That risk of trauma is very real and very serious but inevitable if they’re planning to try this case. But rather than have the separate hearing they just set the bail amount to a figure they assumed the guy couldn’t pay. So… avoiding this trauma is a luxury you only get if your attacker is poor? Because make no mistake, the Jeffrey Epsteins of the world get to pay whatever bail they want if prosecutors don’t do the hard work of keeping people in jail the right way. That responsibility shouldn’t be skirted if the government thinks the defendant is light on cash.

Rollins referred to the fund’s decision to cover this guy’s bail as “the act of a coward… I would have so much more respect for the Bail Fund if they had bailed him out and then let him stay in one of their homes.” And we would have more respect for you if you’d actually performed your legally required duty of undertaking a dangerousness hearing in this case, but here we are.

This — rather that the existing Globe angle — is the actual story here.

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Prosecutors are unconstitutionally abusing the cash bail process to use it as a substitute for dangerousness hearings because they don’t want to go through the hassle of doing things by the book. That’s a very troubling place for this country to be.

This is the whole farce of the cash bail system as applied throughout the country: it’s just a workaround for jailing poor people who are then more likely to be convicted because people in custody do measurably worse at trial. We’ve seen a lot of ranting about New York’s cash bail reform (which was limited to nonviolent defendants so wouldn’t even apply in this case) but none of the critics ever grapples with the basic concept that if the government believes someone should be able to buy themselves out of jail AT ALL then quibbling over amounts is just about buying off the justice system. Cash bail critics don’t think everyone should be immune to pre-trial detention, just that it’s bonkers that freedom is subject to a credit check and that accused of the exact same crime an upper middle class guy would’ve had no issues covering that charge. If someone shouldn’t get out then just don’t put a price tag on it!

And somehow the media is echoing this rhetoric of abuse as if it’s acceptable. Check out this paragraph from the Globe story:

Boston police Commissioner William Gross said he was “absolutely appalled” that someone with McClinton’s history would be freed. “We’re getting to a point in society where we’re giving more credence to criminals than victims. We’re talking about violent offenders. Why would you bail someone who committed rapes?”

Let’s edit it for accuracy with additions in italics:

Boston police Commissioner William Gross said he was “absolutely appalled” that someone with McClinton’s history would be freed granted bail at all by the prosecutor’s recommendation. “We’re getting to a point in society where we’re giving more credence to criminals than victims just as the United States Constitution explicitly provides. We’re talking about violent offenders. Why would you set bail someone who committed rapes?”

It’s time for some honesty about what’s going on here: in the wake of America watching police riot on TV for a week people for the first time were giving to bail funds en masse and suddenly the jig was up on the whole cash bail scam they had running. Now there’s money in the system and the arbitrary “high” numbers they’d been setting to avoid real work weren’t obstacles anymore and rather than fess up to their role in this, officials are just whining to the press.

In the entire article there’s only one person quoted who comes asymptotically close to the real issue, a BU journalism professor who says:

The notion of providing bond for folks who are in for heavy crimes is crazy and needs to be reformed — a serial rapist and sex offender? The DA’s office made a mistake in allowing him to be eligible for bail. But once that decision was made, the bail fund has some discretion in where they allocate their funds — whom they decide to bail.

So close!

Stop farming out the justice system. If you say someone is eligible to be released for $15K then you’ve authorized them to be released for $15K. Don’t ask private actors to adjudicate the “worthiness” of one $15K bond over another. Let judges do that.

Every public official quoted in this Globe article is abdicating their responsibilities and shockingly being given a cookie for their effort. Hold them to a higher standard because this whole endeavor falls apart real quick when the people in charge get patted on the back for ignoring the rules.

Supporters pull back after Massachusetts Bail Fund posts bond for registered sex offender who had pending rape charge [Boston Globe]

Earlier: Bail Reform Opponent Proves Lawyers Are Terrible At Math

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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