Bail is not meant to pre-punish suspects

With some regularity, there is public outcry because a person out on bail commits a heinous crime. Most recently, a man free on bail on drug-dealing charges allegedly commit- ted murder.

It seems outrageous that someone accused of a serious crime, and indeed one who might have been in violation of his conditions of bail, should still be out on the streets and able to do this horrible thing. Why, it is asked, was he still free?

This tragedy — and it is a tragedy — is baked into the fundamental concepts of bail and the presumption of innocence. The basic purpose of bail is not to protect the public, it is to make sure that the defendant shows up in court. Since accused persons are presumed to be innocent, then the courts do not have the basis to pre-punish them, no matter how bad a person they may be. If the system believes that some amount of bail or some set of conditions will result in them showing up, then out they go. And some of them will do bad things.

Now, over the course of time, this original mission of bail has been tweaked because of prior uproars. For example, in the federal system, certain crimes lead to a presumption of no-bail, shifting the burden to the defendant to show that bail is appropriate. At the state level, there are more and more “conditions” that are imposed. On the one hand, this all feels sort of reasonable — these are generally very bad guys. On the other, I am concerned that we have seriously drifted away from the original purpose of bail.

If we make bail too hard to get, a lot of innocent people — especially poor people — will be in jail for a long time before they get their trial. If we just assume that anyone charged with a crime should be locked up, we eviscerate the presumption of innocence and become a society we don’t want to be. I find the idea of “preventive detention” largely repulsive, particularly because I just don’t trust the prosecutors or the government that much. I don’t want to live in a place that locks people up because of what they might do, not because of what they have done.

I have no magic bullet or words of comfort. Saying that the price of a free society is these murders is no comfort to the bereaved and makes me want to slap myself for being a pompous ass. But that does not make it any less true. Some choices we make are going to hurt people whichever way we go. Any system that depends on human judgment will make mistakes.

We can and should be upset, but we still need to press on and remember what is important in the long run. That is the cost of being a thoughtful grownup in this country.