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Paul Perry writes a weekly opinion
column for his local daily paper. Following is a sampling of those
articles. All were originally published in the Waxahachie Daily Light, although some were subsequently published elsewhere, such as in DallasBlog.com.
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Paul D. Perry
Published on February 3, 2008
Bail Should Not Be Cruel and Unusual Punishment
Magistrates and other officials are bound to uphold laws, including the
federal and state constitutions. Everyone knows our system of justice
is not perfect. However, I often suspect that we are not thankful
enough that our system is used as a positive example around the world.
For all its flaws, it is still envied. I do not believe we are hated
for our freedoms in most of the world, rather we are admired for them.
Unfortunately, sometimes in Waxahachie we do not provide the best model of how our system is supposed to work.
The lead Waxahachie city judge is Sylvia Lopez-Beaver. After reviewing
an almost six-inch-high stack of records from her court, procured by a
local attorney at request under the open records act, I have come to
the conclusion that her bail amounts need further examination.
As quoted in the Texas Annotated Code of Criminal Procedure, the
finding in the case of Trammel v. State (Tex. Crim. App. 1975): "The
prime object or purpose of bail is to secure the presence of an accused
upon trial of an accusation against him. It is not a revenue measure
intended to be a substitution for a fine, but is intended to secure the
trial of the alleged offender rather than turn his securities or those
of his bondsman into a penalty."
Often in Waxahachie, a case can be made that bond/bail amounts are
excessive, in light of their purpose according to our laws. In jailable
misdemeanor cases, the Waxahachie city judge often sets bail in amounts
that are even higher than the fine amount allowed by law for the same
offense!
I surveyed several magistrates' bond settings for similar offenses in
Ellis County. On a rough average, the Waxahachie city judge's bond
settings were at least several times what other experienced magistrates
bonds were for similar or the same offenses and often 5 to 10 times
higher than other experienced judges' settings!
A presumption of innocence is a cornerstone of our justice system. We
do NOT presume you are guilty if you are accused or even arrested.
Other countries, however, have systems that actually presume you are
guilty upon arrest. In our system, if you are found guilty of a crime,
punishment is assessed.
As long as the accused is afforded due process of law, I am all for
proper punishment. In the U.S.A., the burden of proof is borne by the
government - that is even the way it is supposed to work in Waxahachie.
In order to be punished, you should be found guilty first. That is the
way it should work in our system, even here.
In order to not only accommodate the presumption of innocence, which is
a bedrock of our system, but also to secure the appearance for trial by
the accused, the accused generally agrees to forfeit a sum of money
(the bail amount) if appearance before the court of jurisdiction is not
made, in exchange for release before trial date.
Texas magistrates set the amount of bail after arrest. This is
sometimes referred to as setting a bond. The magistrate also should
inform the accused of certain rights. The process is referred to as a
magistration. Judges in higher courts actually conduct a full
arraignment.
If arrested, you should see a judge within 48 hours, by law. It could
have been a justice of the peace or a municipal or "city" judge. Your
bail amount is set by that judge if you are arrested on a new or fresh
charge.
A bail amount is not set to be an undue hardship. It is never supposed
to be used as punishment. Remember, when bond is set the accused has
NOT had his or her day in court. No one has been found guilty.
To use a bond or bail as punishment involves putting the cart before
the horse. A good case can be made that such practice undermines our
system of justice. Even if there is no intention to use bail as
punishment, a case can be made that overly high bail settings undermine
the design of our system.
Perhaps we should review the 8th Amendment of the U.S. Constitution:
"Excessive bail shall not be required, excessive fine imposed, nor
cruel or unusual punishment inflicted." As an example, Judge Lopez-Beaver's bail (bond) settings for class B
misdemeanor offenses (the lowest level offenses that traditionally
allow confinement and/or a fine as punishment) are regularly in the
$4,000 to $10,000 range. A few are lower for class B misdemeanors, some
are higher. Other experienced magistrates in our county are setting
such bonds around $500 to $1,000 for similar offenses. Perhaps more
telling is the practice of another magistrate who sometimes substitutes
for Judge Lopez-Beaver; his bonds are often only a fraction of the
amount Judge Lopez-Beaver customarily sets for similar charges in the
very same court.
In some cases conditions can be placed upon bond. Under state law, much
latitude is given to the magistrates who set bonds. In some
circumstances a high bail setting is in order. For instance,
magistrates are even allowed to consider public safety in setting the
amount of bail.
However, in my judgment, there is a pattern here. Once again, in my
judgment and the judgment of others - some of whom have not just
experience in the system but formal educations in law - this situation
has been out of balance for years. If bail is regularly set so large
that it is greater in amount than the fine allowed by law for the same
offense, I think we can all agree that bail amounts are too large in
the great majority of cases.
A more utilitarian analysis might be useful for some.
Bail bond providers are business people who for a percentage put up
bail for folks who cannot pay for the entire bond that has been set as
a condition of pre-trial release.
Indeed, bondsman serve a useful purpose in our system. Bondsman
regularly charge around 15 percent, some even more, of the full bond
amount to guarantee the appearance of the accused. It can be a risky
business. The bondsman can be on the hook to the court for the full
amount of their client's bond if the accused does not make trial.
The accused has several choices: try to put up the bond amount, put up
a substantial fraction of the money with a bondsman or wait to appeal
the bond amount with a higher court judge. A few days in jail might not
seem like that big of a deal to some, but remember we are talking about
people who haven't been proven guilty.
We taxpayers need to remember that for many, extra time in jail
translates into loss of job. This further complicates their need to pay
both their bondsman and their attorney. Very few people can actually lay hands on $10,000 upon arrest or even
$4,000. As I stated, bondsman regularly charge 15 percent or so in
order to finance the full amount of bond. The $1,500 an accused puts up
for bond due to a $10,000 bail setting by the Waxahachie city judge is
money the accused could have spent on legal counsel. In many cases making bail or "bonding out" is all the accused can
afford. The state of Texas places the responsibility on us taxpayers to
pay for representation for people who are charged with a crime but who
are out of money or indigent.
We taxpayers are paying for attorneys in cases where too high a bond
has been set by a city judge. In some cases, the bond amount the
accused is having to put up is impoverishing them before trial. Some of
these people are innocent.
This process has gone largely unchecked for years, hitting taxpayers in
the pocketbook paying for increased jail time for people who can't
afford bond and who have not been found guilty.
The expense of jail time includes clothing, food, and even medical
care. We taxpayers also run a greater risk of bearing the
court-appointed attorney expense. Mark D. Griffith, a local attorney, puts forward his objection to the
situation in Waxahachie City Court: "It appears the EXCESSIVE FINE and
CRUEL, UNUSUAL PUNISHMENT handed out by Judge Beaver begins with the
accused and rapidly trickles down to the us, the taxpayers."
Well said, Counsel; sustained.
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