A carefully presented argument, not a carefully explored argument.

An excellent interview this morning on NPR, What Changed After D.C. Ended Cash Bail, Melissa Block speaks with D.C. Judge Truman Morrison.

The only drawback is that it did not present the counter-argument. Bail has always struck me as a tainting influence in the criminal justice system. I recognize that the intent is to ensure that the accused return to court for their next court-hearing, an indisputably proper goal. Whether setting bail is the right means for achieving that goal is a fair question. Does it work?

Which is important because the negative aspects of bail are pretty significant. Philosophically it feels like it is too close to the equivalent of saying that you are guilty until proven innocent and you need to pay for that privilege of freedom. By introducing lucre into the judicial system, it opens up all sorts of opportunities for unintended incentives at the least, and outright corruption at the worst.

It also feels like a crushing tax on the poor. If you are middle class and accused of a crime and offered $10,000 bail, it is pretty reasonable to assume that the traditional 10% front money of $1,000 won't break your personal finances. For a person with no assets and no money in the bank, it means you stay in jail, lose your job, lose custody of your children, possibly lose your apartment and all sorts of other possible ramifications. All before you have been proven guilty, if indeed you are even guilty.

There all sorts of things to not like about the current bail system, but it obviously exists for a purpose. It may have outgrown that purpose. Modern circumstances may have rendered it ineffective. But we don't know what the case is for supporting bail because NPR provides only one side of the argument. In that regard, the interview was terrible. It ignores the principle of charity which requires "interpreting a speaker's statements in the most rational way possible and, in the case of any argument, considering its best, strongest possible interpretation." NPR gives us one argument and not the other.

But Judge Morrison is a very persuasive advocate for a no (or more properly, rare) bail system.

For me, one of the most troubling elements of the release system (don't hold people because they can't pay bail) is the chance that the accused returns to his/her community and continues to disrupt the lives of those around them, even to the extent of harm and death. How does the state answer a citizen when it unleashes an accused criminal who murders a loved one?

On the other hand, obviously, it is also entirely wrong that all accused should be held without bail before trial.

Some of the points I found interesting from Judge Morrison. A loose transcription:

In 2017 they released 94% of all those detained without bail. (Would like to understand what the denominator is here. My weasel word antennae are quivering. All those detained or all those arrested and charged with a crime?)

88% made every single court appearance.

86% were never arrested for any criminal offense of any kind.

Of that very small percentage who were arrested and then released, less than 2% were rearrested for a crime of violence.

These are impressive numbers but I have the sense that there is a sleight of hand going on based on the distinction between those detained and those arrested. My guess is that Judge Morrison is initially using detention as the denominator, when what we are really interested is those for whom there is a reasonable probability that they committed a crime.

It sounds like 86% of those detained were never charged. And of those 14% charged, only 2% were rearrested for violence (presumably during the duration of their pre-trial release.) I can't say for sure, but it feels like there is a deception going on here. That's why it is so important to present both sides of the argument. I agree with Judge Morrison's goals but he isn't giving much information for supporting the means of achieving those goals.

On the fundamental issue of non-financial release justification.

We are never going to be able to perfectly predict human behavior.

Many people who were released would have bought their way out of jail and committed the same crime anyway.

He paraphrases Justice Jackson in Stack vs. Boyle: There is always an element of risk in making a release decision before trial. That is the price of our ordered system of liberty and justice. The only way to get a complete assurance of safety is to of course incarcerate everyone which is of course not the American Way.

True enough but it doesn't answer the victim citizen's charge against the state when the unspeakable happens - You had him in custody and you released him to injure/kill my nearest and dearest.

I think the argument has to be tied to a principle which most everyone accepts. It is better that ten guilty go free than for one innocent to be mistakenly imprisoned. If we accept that, then perhaps it is easier to accept the corollary - It is better that ten likely guilty people are temporarily released than for one likely innocent person have their lives destroyed by bail requirements.

The former is already an operative principle which has a cost. With all our safeguards to protect the innocent in our judicial system, there are plenty of guilty parties who return to civil society; some to reform themselves, some to continue preying on innocent citizens. We know that deal, and while we may not like its implications, it is a cost we are willing to collectively bear.

So why not the corollary principle? Why not release everyone who is charged without bail, excepting those for whom there is a compelling case? I suspect that there are at least two complicating issues.

1) Volume - The number detained dwarfs the number charged and the number convicted is some fraction of those charged. Release of those detained but not charged likely has an order of magnitude impact greater than volume impact.

2) Class - I am assuming that a large majority of property and violent crimes are committed by those in the bottom two quintiles of the population. Crime offenders in these quintiles are a small percentage of the population but they are the majority of the population of all offenders. The large majority of law-abiding citizens in the bottom two quintiles are likely not enthusiastic about a system that might disproportionately disadvantage them. To make an extreme example, if all murderers are from the bottom 40% of the population and they are returned to their communities where 2% of them reoffend, then the murder rate for the bottom 40% by those who have been released is 5% not 2%. If policy is set by people at the top who are unlikely to bear the impact of that policy which is on those at the bottom, then there will be plenty more voters at the bottom providing a quiet opposition.

So recapturing this interview, perhaps I am less enthused of the interview than I was while driving around, focusing on the traffic and not parsing the argument. NPR presented one side of the argument and did not address both sides. Never a good approach. While Judge Morrison was an presenter for his side of the argument, when you consider the careful definitional distinctions which seem implied, there is probably more to this than presented.

Oh, well. It seemed like a good interview.