WHATEVER HAPPENED TO THE RIGHT TO BAIL?
RANDOM THOUGHTS AND IDEAS Dennis L. Blewitt, J.D.
Continuation of What Happened?
I remember a time when there was trust, compassion, charity, and a sense of community in the third branch of Government called the Courts. That era has all but disappeared. Change came rapidly, and, in an instant, a branch of Government was transformed from an equal branch of Government that served the citizenry or people into a “system” which became the playground of the multi-nationals. This was not accidental, it was planned and premeditated by the greedy and ignorant, disdainful of the lower classes whom they believed inferior and needed to be punished. A major impediment to the era of corporate rule was the Constitution. The Constitution was attacked wholesale by politicians and the press. Laws, especially drug laws were made more draconian due the publicized death of a professional basketball player. Propaganda media programs, enshrining police and creating a villainous “other” was in full swing. People believed that Government was the enemy and only corporate efficiency could save them from the ravages of Government. Ironically, this same group idolized the police. While the elite got wealthier, predators siphoned off people’s money, blaming the decline in the standard of living on the poor, lazy, welfare recipients, deadbeat fathers and other manufactured causes, readily accepted by the uninformed and ignorant. People were conditioned to believe that private business persons were heroes and good rather than the venal, greedy unscrupulous enemy of the public that they were. Society’s unfortunates were blamed for the siphoning off of wealth.
Efficiency was the buzzword and the Government started marketing protection similar to the tactics of the Mafia in an earlier period. It thrived on fear. No one stopped to think what this efficiency meant, or how it would affect us. Minimum mandatory sentencing was introduced. This reflected a change in thinking regarding punishment or treatment of an individual to that of punishing an act or thing. The illusion of consistence gave the impression of fairness as black defendants were sentenced more for crack cocaine that white defendants for white cocaine. Crime became symbolic and sentence was meted out to validate the people’s concerns and prejudices. Reason and causation that defense attorneys used to present to judges or certain social conditions were now forbidden. The Government had the equivalency of papal infallibility. Decisions on justice and crime were made by prosecutors, anxious to prostitute themselves to stay in power or keep their positions. The public wanted safety and they got it, or the illusion of it, at the expense of an 800 year traditional legal system and the nebulous concept of justice. Justice now meant retribution or vengeance, not understanding and compassion. At the same time, an ambivalent public favored corporations over Government to better address the problems of a complex society.
Bail reform, disguising the concept of preventive detention, negated the presumption of innocence and right to trial and counsel, obtained at Runnymede by sword point and great cost to the originators. Judges started to restrict the questioning of potential jurors to speed up the conviction process, curtailing the right to a jury. Justice in thought and practice was replaced by vengeance. Many groups agitated for less government and more business-like government. The third branch of Government was to become the servant of the Executive branch. Fear, ignorance, servitude, and expediency reigned over destruction of the Constitution, cheered by a fearful population. Laws promoted the rich.
Tax revision, distributing wealth and power upward, and control of the narrative convinced the public that there was danger everywhere and more police could protect a person. Very few challenged this assumption. People wanted security. People wanted certainty. People didn’t want to look at complex problems or solutions. They believed that the free market would solve all problems and save them from fear. Only privatized government could save us. The crime policy was to contain and warehouse the poor like we did cattle on ranches. Criminals weren’t people, they were essentially cattle that should be put away or even executed because they didn’t behave. Only individuals were responsible. Society, efficiently run by corporations was blameless. The idea of a society was replaced by a Darwinist battle of individuals. Various interest groups started to flex their muscles, many of which were quasi-religious in ideology and belief. Although a tiny O-ring on a rocket scuttled a space launch, a comparably simple system, the public thought that a much more complicated “justice system” could be the immediate “fixed” simply by efficiency. The idea of evidence based policy was discarded, replaced by such totalitarian ideas as zero-tolerance and broken windows law enforcement. Everyone was suspect and a potential threat. To deal with these and many other perceived dangers, Officials in the law enforcement community and ex judges recruited mainly from the ranks of prosecutors implemented the concept of preventive detention. Zero tolerance prohibited debate. Broken window policy of strict enforcement of chicken shit laws kept the peasantry docile, in fear, and in line. Unlike opinions of scientists 75 years ago which showed that criminals should be taught to differentiate between running a stop sign and murder, any violation of any law or regulation was reason to punish. And who had “broken windows?” The poor, of course.
To gain control, the Common law system had to go. The corporation managers could not countenance power from below. They wished dictatorial power. They were to become terrorists by acquiescence. Although centuries old, the presumption of innocence needed to be abolished and replaced with an Old Testament non-Christian view of the world with the view that everyone way a sinner or guilty of something. Like the characters of the Old Testament, the people wanted vengeance, protection and the feeling of comfort generally associated with cattle. Many intellectually deficient drones proclaimed themselves “Christians,” libertarians, and “Patriots,” causing the thinking public to cringe. However, these people were vocal and made their desires heard. The problem was that they could only think in terms of dichotomy. Continuums were beyond their ken. They believed in simple answers to complex problems. They denied science and the concept of a society. It was all up to the individual and those who did not excel were morally lacking.
An earlier attempt under the Nixon-Mitchell administration was made to privatize records when Law Enforcement Assistance Administration was created, but was defeated. This group spun off a private intelligence corporation which stored records. When the abuse was obvious, prosecutors feigned lack of control over the corporations, claiming that information was private and not available to the defense. Judges put a short stop to that. They weren’t quite indoctrinated to cow-tow to the corporation. That would soon change.
Privatization occurred with a vengeance under the Reagan administration. Private prisons cropped up, hyped as an answer to prison crowding. The crowding, however, was manufactured. First bail reform abolished the common law concept of bail being a guarantee for a court appearance. It was now used as a device to control, discriminate, and punish. For centuries, the right to bail was absolute. Now it is conditional with the accused treated as though he has already been convicted, subject to terms and conditions imposed by Courts and prosecutors without precedent in Anglo-American jurisprudence. The new breed of politician and lawyer respected expediency and profit, not justice and fairness.
When I first started law practice, I used to get a call from a client that he had been arrested. I could have him released within two hours of my arrival at jail. There was a bail schedule, a deputy clerk to grant the bail, a bondsman to post the bond, and that was it. Now, under bail reform, the reality is that the accused generally has to spend at least one night in jail. Bond is set in a greater amount than before and the accused is subject to various conditions pending the disposition of the case. The bond is not to ensure the accused’s appearance in court, it functions as a peace bond, subject to revocation for a myriad of reasons which may or may not pertain to the prosecution. In effect, the defendant is already found guilty of something. He just needed to wait for the police and their DA lackeys to decide how to treat them. To be released, they had to agree to being treated as though convicted. That has changed. I now takes at least a day. Release on bond has become a form of punishment because the arrestee is presumed to be guilty of something. Mostly, the main offense was being poor. Conditions, identical to the pre-Reagan practices of probation after conviction replaced the right to bail. Conditional release had absolutely no relation to appearance to answer charges.
Bond was identical to the Roman-Napoleon concept of the peace bond. Release was conditional. If an arrest were made on a weekend, the accused generally had to spend it in confinement. The costs of bail raised because the amount demanded by the schedules were escalated. Not to insure appearance of an accused, but to increase profitability. I became a racket. It help create fodder for the privatized prison industry.
A recent example is the requirement of an accused to wear a sobriety ankle device, have an interlock device on his car to drive and attend alcohol classes sponsored by a political lobby group, whose purpose is to indoctrinate the public and change the law. This particular individual was accused of driving under the influence of marijuana. The dumbass court applied the alcohol statute to the defendant because there wasn’t one yet for driving while using marijuana. Common sense suffers, but the private groups providing these services thrive. The accused must pay $25 for a breath test that he is not drinking, when that was never in issue. He also has to pay for an interlock device on his car, sold by another vendor. Additionally he has to take an alcohol class, administered by a private company. All told, before any conviction he has paid the Court racket over a thousand dollars to comply with stupid, non-relevant conditions of bond. He must contact the private vendor regularly and pay for that. So much for the presumption of innocence. The system is mechanized and mindlessly rambles on. The only logical reason for this is to create the illusion that the police state can protect us.
Science is denied by those in power. Science is inconvenience. It is easier to keep power by manipulating opinion and maintaining an ignorant public. Social scientists have studied crime causation and all the research is ignored by most policymakers. Medical science has shown that the prime cause of addiction is a person’s social environment and addiction is correlated with mental health problems. However, the public won’t face this. They are convinced that the individual is to blame for all of society’s problems. If enough people can be locked up, we don’t have to worry about causation. So speaks the simple mind.
Before “reform, when the defendant was arrested and before the Courts allowed predatory practices by business, an accused was allowed access to the facility’s telephone, paid for by the taxpayers and not subject to any surtax. He had an unconditional right to a phone call. He was innocent and had rights, eight centuries old. Now, he must make a collect call to someone to arrange bail or counsel. A private company provides this at a cost of around $2.00-$300 per call, which must be paid by the call recipient. Naturally, several people refuse to accept the call when a recorder informs them that, “you have a correct call from a correctional institution.” Additionally, the calls are monitored, even if to an attorney in a blatant, deliberate violation of the right to counsel and to that of attorney-client privilege. This is also true of spousal calls. Considering that most arrestees are poor, this is a truly regressive form of punishment.
The end result of all of this privatization is a destruction of Constitutional rights. The irony is that we are being charged for this by allowing a failed policy to benefit the robber barons and privateers. The true crime is that those who should be standing up to the profiteers are generally in bed with them. They seem to be morally and ethically challenged, or else brainwashed into believing that the Government to whom they took a loyalty oath is corrupt and evil compared to the multinational corporations. This whole system is insane and calculated to enhance corporate profits and transfer wealth to them at the expense of the citizenry, especially the poor. It should be obvious to even the most obtuse that the corporation executives, not the People, benefit from such policy.
Now, with crime rates lowering, sheriffs all over the country are complaining of crowding and wanting to build facilities for more prisoners, those with psychiatric problems. The belief is that law enforcement should handle the mentally ill and confine them. If they misbehave or don’t obey, jailers, sheriffs or police can just shoot the miscreants rather than treat them which law enforcement members aren’t equipped to do. Police have already demonstrated how they handle mentally ill and disobedient. Very efficiently. They kill them. A mother has trouble with her mentally ill son, the police arrive, give him an order which he probably doesn’t understand and then murders the son in the name of safety and fear, dispensing with costs of treatment. Maybe we should look elsewhere than the gestapo for answers to dissent, mental illness or fear.
- Posted in: Constitutions and Laws