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The Vested Interests of the Judge: Commentary on Flemming's Theory of Bail
Published online by Cambridge University Press: 20 November 2018
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- Copyright © American Bar Foundation, 1983
References
1 Bail may be defined broadly as security for the release of an individual from legal custody. Concern here will be limited to the release of criminal defendants prior to verdict.Google Scholar
2 Roy B. Flemming, Punishment Before Trial: An Organizational Perspective of Felony Bail Processes (New York: Longman, 1982).Google Scholar
3 U.S. Justice Statistics Bureau. Profile of Jail Inmates: Sociodemographic Findings from the 1978 Survey of Local Jails (Washington, D.C.: Government Printing Office, 1981).Google Scholar
4 Foote, Caleb, The Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev. 959 (1965); Tribe, Laurence H., An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va. L. Rev. 371 (1970); Borman, Paul D., The Selling of Preventive Detention 1970, 65 Nw. U.L. Rev. 879 (1971).Google Scholar
5 The principle of habeas corpus appears in Article 1, Section 9 of our Constitution. The excessive bail language was adopted, almost verbatim, from the 1689 English Bill of Rights.Google Scholar
6 Foote, supra note 4, at 986.Google Scholar
7 Mitchell, John N., Bail Reform and the Constitutionality of Pretrial Detention, 55 Va. L. Rev. 1223 (1969); Meyer, Hermine Herta, Constitutionality of Pre-Trial Detention (Pts. 1 & 2), 60 Geo. L.J. 1139, 1381 (1972); Duker, William F., The Right to Bail: A Historical Inquiry, 42 Alb. L. Rev. 33 (1977).Google Scholar
8 Mitchell, supra note 7, at 1231.Google Scholar
9 In those cases where the arrestee poses a substantial threat to the judicial process (e.g., interfering with witnesses or jurors), the denial of bail derives from the inherent powers of the court to protect the integrity of its own proceedings.Google Scholar
10 342 U.S. 1, 4(1951). In Stack appellants were charged with conspiring to violate the Smith Act, and bail was set at $50,000 for each petitioner. Although primarily concerned with appellant's claim that bail as fixed was excessive, the Court recognized the “traditional right to freedom before conviction [which] permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction” (emphasis added). Release before trial is, however, “conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty.” If the court finds that no amount of bail will deter the accused from absconding, then it follows that the accused may be held without bail.Google Scholar
11 342 U.S. 524, 542 (1952). In Carlson, a 5–4 majority held that alien Communists awaiting deportation proceedings—a civil matter—are not entitled to bail under the Eighth Amendment. The Court went on to say that the prohibition against excessive bail was only intended to mean that where money bail was authorized by statute, it should not be excessive. Thus the rationale underlying the bail decision need not be limited to defendant's likelihood of appearance, but may also take cognizance of a “reasonable apprehension of hurt” as in the present ease “from aliens charged with a philosophy of violence against this Government” (p. 542).Google Scholar
12 18 U.S.C.A. §§3146–3152.Google Scholar
13 5 D.C. Code §§23-1321–1331, (Cum. Supp. 1983).Google Scholar
14 See John S. Goldkamp, Two Classes of Accused: A Study of Bail and Detention in American Justice (Cambridge, Mass.: Ballinger Publishing Co., 1979), for a detailed (though slightly dated) description of state bail laws.Google Scholar
15 Money bail suggests a contractual relationship between the government and the defendant (and his surety, if he has one). In return for the defendant's release from custody, a monetary payment is made (or asset pledged) to the court, along with a promise to comply with the conditions of release set by the court. Should the defendant fail to comply, the security posted may be forfeited and the defendant subjected to rearrest, reincarceration, or other sanctions.Google Scholar
16 Arthur L. Beeley, The Bail System in Chicago (Chicago: University of Chicago Press, 1927).Google Scholar
17 Wisotsky, Steven, Use of a Master Bond Schedule: Equal Justice Under Law? 24 U. Miami L. Rev. 808 (1970).Google Scholar
18 Zeisel, Hans, Bail Revisited, 1979 A.B.F. Res. J. 769.Google Scholar
19 Recent studies claiming evidence of a conviction bias, sentencing bias, or both include James Eisen-stein & Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little, Brown & Co., 1977); Peter W. Greenwood et al., Prosecution of Adult Felony Defendants: A Policy Perspective (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1976); Robert Hermann, Eric Single, & John Boston, Counsel for the Poor: Criminal Defense in Urban America (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1977); William M. Rhodes, Plea Bargaining: Who Gains? Who Loses? PROMIS Research Project Pub. 14 (Washington, D.C.: Institute for Law and Social Research, 1978); Goldkamp, supra note 14; Wheeler, Gerald R. & Wheeler, Carol L., Two Faces of Bail Reform: Analysis of the Impact of Pretrial Status on Disposition, Pretrial Flight and Crime in Houston, 1 Pol'y Stud. Rev. 168 (1981). Cf. Landes, William M., Legality and Reality: Some Evidence on Criminal Procedure, 3 J. Legal Stud. 287 (1974); Sorrel Wildhorn et al., Indicators of Justice: Measuring the Performance of Prosecution, Defense, and Court Agencies Involved in Felony Proceedings (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1977).Google Scholar
20 Pannell v. United States, 320 F.2d 698, 699 (D.C. Cir. 1963) (Wright, J., concurring).Google Scholar
21 American Bar Association, Standards Relating to Pretrial Release 62 (Approved Draft, 1968).Google Scholar
22 Ares, Charles E., Rankin, Anne, & Sturz, Herbert, The Manhattan Bail Project: An Interim Report on the Use of Pre-Trial Parole, 38 N.Y.U. L. Rev. 67 (1963).Google Scholar
23 Donald E. Pryor, Pretrial Practices: A Preliminary Look at the Data, Pretrial Issues (Washington, D.C.: Pretrial Services Resource Center, 1980).Google Scholar
24 Bowman, Charles H., The Illinois Ten Per Cent Bail Deposit Provision, 1965 U. Ill. L.F. 35 (1965).Google Scholar
25 Supra note 21.Google Scholar
26 National Advisory Commission on Criminal Justice Standards and Goals, Corrections (Washington, D.C: Government Printing Office, 1973).Google Scholar
27 National Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure (St. Paul: West Publishing Co., 1974).Google Scholar
28 National Association of Pretrial Services Agencies, Performance Standards and Goals for Pretrial Release and Diversion (Washington, D.C: National Association of Pretrial Services Agencies, 1978).Google Scholar
29 Lower base rates pose greater problems of prediction because the variation in the dependent variable (FTAs, bail crime) is reduced, and it is this variation that must be analyzed in the search for predictors.Google Scholar
30 Prediction efficiency can be measured by the proportionate reduction in errors achieved by using the prediction instrument in lieu of the base rate. E.g., if the base rate is 15%, then drawing upon this datum alone, one could correctly classify 85% of the defendants by simply predicting that all the defendants would succeed. Should the correct classification of 90% of the defendants result from the use of the prediction device, the proportionate reduction in error would equal one-third. Of course this assumes the false positives and false negatives are not differentially weighted which, as a matter of public policy, they generally are.Google Scholar
31 Not surprisingly, consistency among working definitions is rare. One survey of 51 pretrial release projects found 37 different methods of calculating FTA rates. Hank Goldman, Derva Bloom, and Carolyn Worrell, The Pretrial Release Program (Washington, D.C.: Office of Planning, Research and Evaluation of the U.S. Office of Economic Opportunity, Government Printing Office, 1973).Google Scholar
32 Predictions of violent crime tend to be the most difficult of all:. What makes violence so particularly difficult to predict is not merely its rarity, but its situational quality. Deterministic models to the contrary notwithstanding, violence generally is not a quality which inheres in certain ‘dangerous’ individuals: it is an occurrence which may erupt—or may not—in certain crisis situations. Whether it does erupt, whether it is reported, whether the perpetrator is apprehended and punished, depend upon a wide variety of fortuitous circumstances, largely beyond the actor's control. Not only the actor's proclivities, but the decisions of other individuals—the victim, the bystanders, the police, the magistrate—may determine whether an act of violence occurs and whether it comes to be included in the criminal statistics. Trying to predict violence on the basis of information concerning only the supposedly violence-prone individual—without taking these numerous external contingencies into account—is trying to solve a multi-variate problem by keeping track of only one variable. It is hazardous undertaking, indeed. von Hirsh, Andrew, Prediction of Criminal Conduct and Preventive Confinement of Convicted Persons, 21 Buffalo L. Rev. 717, 735 (1972).Google Scholar
33 Heckman, James J., Sample Selection Bias as a Specification Error, 45 Econometrica 153 (1979).Google Scholar
34 Strictly speaking, individual prediction is a misnomer. In any prediction problem individuals similar with respect to a selected set of characteristics are assigned to classes, and then statements are made about the expected conduct of members of the classes. Don M. Gottfredson, Assessment Methods, in Crime and Justice, vol. 3, The Criminal Under Restraint, Leon Radzinowicz & Marvin E. Wolfgang, eds. (New York: Basic Books, 1977).Google Scholar
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36 Goldkamp, supra note 14, at 100.Google Scholar
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38 This conclusion applies with even greater force to the intuitive or subjective predictions made by magistrates and bail judges. Drawing accurate and precise distinctions between defendants is a task of colossal complexity, and performance data are seldom available to a judge to execute the mental calculations. “Judges rarely know how other judges treat similarly situated defendants and, for the most part, never know what happens to the particular defendants for whom they have set bail” (emphasis added). Joseph R. Glancey, Municipal Court of Philadelphia, Foreword, in John Goldkamp, Michael Gottfred-son, & Susan Mitchell-Herzfeld, Bail Decisionmaking: A Study of Policy Guidelines (Philadelphia: unpublished monograph, 1982). Absent systematic feedback, positive as well as negative, it is impossible for judges to learn from their experience.Google Scholar
39 Paul B. Wice, Freedom for Sale: A National Study of Pretrial Release (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1974).Google Scholar
40 Robert Wilson, A Practical Procedure for Developing and Updating Release on Recognizance Criteria (Wilmington: College of Urban Affairs, University of Delaware, 1975).Google Scholar
41 Paul F. Lazarsfeld, An Evaluation of the Pretrial Service Agency of the Vera Institute of Justice (New York: Vera Institute, 1974).Google Scholar
42 Peter Venezia, Pretrial Release with Supportive Services for “High Risk” Defendants (Davis, Cal.: National Council on Crime and Delinquency, 1973).Google Scholar
43 Ozanne, Marq R., Wilson, Robert A., & Gedney, Dewaine L. Jr., Toward a Theory of Bail Risk, 18 Criminology 147 (1980).Google Scholar
44 Landes, supra note 19.Google Scholar
45 Michael Kirby, Recent Research Findings in Pretrial Release (Washington, D.C.: Pretrial Release Resource Center, 1977).Google Scholar
46 Chris Eskridge, An Empirical Study of Failure to Appear Rates Among Accused Offenders (Columbus: Program for the Study of Crime and Delinquency, Ohio State University, 1978).Google Scholar
47 Gerald Wheeler & Carol Wheeler, Predicting Court Appearance of Felony Defendants (paper presented at the National Symposium of Pre-Trial Services, Louisville, Ky., 1979).Google Scholar
48 Feeley & McNaughton, supra note 37.Google Scholar
49 Gottfredson, Michael R., An Empirical Analysis of Pretrial Release Decisions, 2 J. Crim. Just. 287 (1974).Google Scholar
50 Landes, supra note 19.Google Scholar
51 Supra note 46.Google Scholar
52 S. Andrew Schaffer, Bail and Parole Jumping in Manhattan in 1967 (New York: Vera Institute of Justice, 1970).Google Scholar
53 E.g., Goldkamp, supra note 14.Google Scholar
54 Id. at 222.Google Scholar
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