If people are being caught stealing from trains and the same people are walking out of court and going to rob the next train in the same location again the next day, then yes, the government, the prosecution and the court system are failing in their duty here.
Sure, but actively violating those people's constitutional rights would actually be worse. Without enough resources, there are no good options, but there are better and worse ones.
If someone is let out on bail, and commits another crime, then their bail should be posted higher. A third crime would result in an even higher bail. The constitution only prohibits "excessive" bail. If someone continued to commit crime while out on bail, then clearly the original bail was insufficient to act as a deterrent.
> If someone is let out on bail, and commits another crime, then their bail should be posted higher.
I'd say that if someone gets rearrested after being out on bail, they should get no bail at all. I'm also not willing to count the time spent in prison as a result of this as time served for any later sentence in this circumstance.
But I may be biased. There's a person in prison right now for murder, who was literally caught with blood on his hands, who had grandma's name on his list of people to kill.
So I take the notion that prison disables criminals a bit more seriously than some do (and grandma is still alive).
> If someone is let out on bail, and commits another crime, then their bail should be posted higher.
If someone is out on bail, they are presumed innocent of the first alleged crime, and will still presumed innocent of the second alleged crime if they are charged with another one when bail for the second charge is set.
Bail is not a pre-conviction punishment, and using it as such violates the due process clause of the 14th Amendment (or the 5th, if was the federal government doing it), the confrontation clause, and the right to jury trial.
> The constitution only prohibits "excessive" bail
No, the Constitution prohibits a lot more than that; it's true that the prohibition on excessive bail is the only prohibition specific to bail, but it contains lots of other prohibitions that you can't just use “we’re calling it bail” to evade.
People can be subject to pre-trial detention. Violent offenders are sometimes denied bail, entirely, if they are determined to be a a safety threat to the public. There exists precedence to detain people prior to trial. If the situation gets to the point where crime becomes de-facto legal then this precedent should be used to curb repeat offenses.
Would it hold up to constitutional scrutiny? Who knows. But interpretations of the Constitution change. A hundred years ago people would probably be baffled that the Constitution was used to justify gay marriage and abortion - interpretations change and adapt to new ideals and values. As people say "the Constitution is not a suicide pact."
I see where you're going with this, but bail is not supposed to be a deterrent against future crime — it's a refundable payment to ensure defendants will show up for trial. You could try to deter criminals with fines, but this would have little effect on people who do not have significant assets. That's (one of the reasons) why we have prisons.
In practice, in most states, bail is a system that moves the cost of enforcing failure to appear from the state to private industry. That is, bail serves as a mechanism to give bail bondsmen a significant financial interest, so that they then make their own risk evaluation in setting the price of a bail bond. The cost of locating and detaining those who fail to appear (skip tracing, bounty hunting, etc) is then covered by the pool of bail bond payments. It is essentially an insurance scheme for failure to appear.
Cash bail seldom exists in any meaningful way without the bail bond industry to support it, otherwise no one would ever be able to post bail and pretrial detention would become an unamangeable expense.
One of the arguments for elimination of cash bail and replacement with a risk scoring approach is that it is essentially taking the existing system and moving it from private industry into the state. Currently, when bail is set for someone, what really determines whether or not they go free in most cases is a data-based risk evaluation made by a bail bondsmen to determine whether or not to offer a bond and, if so, whether or not to do so at a manageable price. CA has set a limit on bail bonds (as have many states) at 10% of bail, although they are usually lower, so one way to look at it is that bail bondsmen must make an evaluation of whether the risk-weighted cost of finding the fugitive or losing the bond is less than 10% of the bail amount. In other words, they must compare the expected value of the bond rate to the expected value of the bond owed to the state. This is something that the bail bonds industry has increasingly systematized, and states are hoping to take advantage of that effort to cut out the middleman.
Cash bail is so closely tied to the system of bail bondsmen that it is seldom useful to discuss one without considering the other. There have been cases where states have largely eliminated bail bonds, such as Oregon, but they have tended to pose significant difficulties that made the need for bail reform even more apparent (essentially that not a single person could ever make bail, since it is quite rare for bail to actually be set at an amount that the accused can come up with).
Scaling bail would make it so that if people are repeat offenders, eventually they won't have the assets to put up bail and will be detained in jail until their trial. Sometimes exceptionally violent offenders don't even get the chance to get bail, for safety. The is precedence for this, and the same approach can be applied to repeat offenders
If committing crimes has no repercussion then things like theft have become de-facto legal. If that happens eventually people are going to take things into their own hands, and that's even worse for society.
> Scaling bail would make it so that if people are repeat offenders, eventually they won't have the assets to put up bail and will be detained in jail until their trial
No, it would make it so that if people are repeat targets of prosecution eventually ”won't have the assets to put up bail and will be detained in jail until their trial”.
It's not until after trial that the legal system determines that a crime has been committed.
That doesn't solve the problem - what if e.g. the police harass a person by repeatedly making specious arrests until their bail becomes too high to pay?
Safeguards against police corruption should come in the form of transparency. We need to have safeguards against filing bogus arrests regardless of this whole scaling bail proposal. The same vulnerability to a corrupt police system already exists: police could just fabricate violent charges to justify denying bail on grounds of safety.
The fact that bail should only scale for repeat offenses of lesser crimes is itself an additional safeguard: it would elicit scrutiny if the same set of police repeatedly charged the same person, and it would expand the set of co-conspirators required for corrupt police to pull this off.
> We need to have safeguards against filing bogus arrests regardless of this whole scaling bail proposal. The same vulnerability to a corrupt police system already exists: police could just fabricate violent charges to justify denying bail on grounds of safety.
Violent charges might be taken much more seriously by the system right now; how confident are we that existing safeguards are good enough? Ideally we would have good safeguards, but that doesn't mean it's fine to exacerbate any existing problems.
> it would expand the set of co-conspirators required for corrupt police to pull this off
By how much though? Police have a lot of trust in each other (the job demands it), I think "arrest this dude for suspected littering" wouldn't seem like a huge favour.
Being held on reasonable bail is not a violation of constitutional rights, is it? I mean I'm sure some people think it is but are there court opinions that have established this as a legal reality?
Many people have argued that the US court system is failing for decades. Now that covid has hit, and the poor management of US courts, jails and prisons has been stressed to the point that continuing normal practices was going to kill a large percentage of people arrested for any reason and the prison guards who work there, the failures have transformed into publicly visible problems.
1. Jail conditions have always been bad. The jails are already crowded for normal conditions - in many jails the only way to isolate/quarantine someone is to literally put them in solitary confinement cells, and aside from that being an actual inhumane practice, it doesn't scale. So covid positive inmates were just kept in the normal population (sometimes they tried to separate them into covid cells and non-covid cells) which made it spread incredibly fast, and quickly overwhelmed any medical facilities inside the facility. Normal transport puts officers into close contact with prisoners, which means it's not easy to transfer them to somewhere else, and nowhere else had space anyway.
So today, in some places people aren't being held in jail until trials for non-violent crimes because the decision has been made that increased low-level crime is an acceptable trade-off when the other option is the government directly causing the deaths of people simply for being arrested. I think that if those are the available choices, they have picked the right one - but obviously those should not be the choices!
2. They aren't walking out of court. They aren't even getting to court for a trial for months and months. Something like 95% of US convictions are arranged in plea deals because the court system is literally not capable of holding trials for everyone with criminal charges - and that was before covid stopped all courts for a few months and slowed them down so that there are massive backlogs even from normal. This partly causes the first problem, because the long wait times builds up the large population of people who haven't had a trial yet. We aren't putting in more and more money, so as this population gets larger (and includes completely innocent people, remember!) we either give them worse and worse conditions in jails, or let more of them out of jail to wait for their trial.
The situation with medical care in prisons has long been severe and COVID has only made it very apparent. In state and county systems it is very common for prisons to have not a single doctor and nurses only on part-time contracts.
With the many complexities of COVID, we have a situation in this state where prisoners are now routinely failing to make court appearances because the jail did not have the resources to transport them to the courthouse, and nowadays the even more extreme situation that prisoners are missing court appearances because the jail did not have the resources to get them into a room with a working computer for a Zoom conference.
While defense attorneys are increasingly making the argument that this constitutes a violation of constitutional rights, and judges are clearly fed up with the numerous delays this is causing, there is very little will to actually address the problem because it would be expensive.
