It's Time for Real Bail Reform

Posted: Nov 26, 2021 12:01 AM
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It's Time for Real Bail Reform

Source: Mark Hoffman/Milwaukee Journal-Sentinel via AP, Pool

The Waukesha incident has once again (and again, and again) raised the specter of societal disintegration in the face of the Defund the Police and Criminal Justice Reform movements. While we may admit that bail is set too high in some cases (January 6 defendants!), the outrageous and unthinking application of “cash bail is bad” is a slow-motion bomb going off. Double and triple digit increases in violent crime in Democrat-run cities that employ such policies are creating outrage among the law-abiding. Why should their grandparents and children suffer when such fools run the asylum?

The suspect in the Waukesha parade massacre was a career criminal. His criminal background check in Wisconsin shows a conviction in 2000 for aggravated battery. The long list of related sentences boil down to five and a half years of probation. Six months into this probation he was arrested for carrying a concealed weapon, possession of cocaine, and “obstructing an officer.” That should have been enough to revoke his probation and give him “three hots and a cot” at state expense. But somehow much of this was called “non-criminal” and the “disposition [was] not reported.”

It’s clear that nothing was done, because two years after his original conviction, he obstructed officers, stole a car, and had another drug offense. That’s two felonies, but amazingly there was “no prosecution.” A year later he was convicted for resisting arrest, but was sentenced to… drum roll please… a sentence to run concurrent with the previous five plus years of… drum roll again… probation. In plain English, he didn’t even get a slap on the wrist.

I won’t bore you with the litany of crimes you can read for yourself, but in 2010, he was arrested for domestic battery involving strangulation and suffocation. This should be enough to get even the #MeToo crowd to call for his head. And he was convicted. But he was sentenced to three years of probation. Following this there are multiple counts of resisting arrest, parole violations, and failure to appear. Any one of these should have removed his probation status and sent him to the crossbar hotel. And any one of those would have changed how his life progressed. Those changed circumstances may have left his drive-through victims uninjured. But we’ll never know.

This litany of crime is instructive. There are people who should never be allowed to walk free in civil society. They have no respect for others and are willing to cause horrendous injuries and take lives without remorse. Ordinary citizens must be protected from their raw evil without creating a system that causes new injuries to undeserving first offenders. And we must avoid violating H. L. Mencken’s aphorism that “For every complex problem, there is an answer that is clear, simple and wrong.” In short, we must tackle the multiple repeat offender. With that done, we can then consider others.

The Waukesha suspect could have been easily taken off the streets long before he killed at least six people. Reading between the lines, it’s very likely that most of his “convictions” were guilty pleas in exchange for probation. Courts and prosecutors like those because they clear a backlog without the work of a trial. And that’s the problem. The incentives are not to protect the public, but to solve a bureaucratic mess. They substitute a short-term “fix” for a real solution.

Suppose that Wisconsin law required that any plea deal for probation would cause any existing probation be converted to hard time to be served before any new probationary time would commence. Or suppose that a felony arrest while on probation for a felony against persons (not property) would immediately deny any opportunity for bail, converting the remaining probation into hard time. Repeat offenders would be off the street for a time, preventing them from committing new crimes while on bail.

“Criminal Justice Reform” warriors would scream about incarceration rates, but that’s not the proper question. Crime reduction is the important question. How many innocent citizens would be spared harm or death with these changes? Another CJR claim is that poor Americans can’t afford bail. But isn’t bail intended to guarantee the appearance of the accused? If bail is set at a trivial level, does it provide any assurance that the accused will appear to answer his charges? There’s no argument against the idea of scaling bail to provide the same level of guarantee regardless of wealth. Certainly a Michael Milken would need some sort of elevated surety to prevent flight compared to a poor person. But that guarantee must be given.

Converting probation to hard time should be a simple matter of law. Any plea agreement for probation should include that element. You do another crime, then you do all the time remaining on the first one. It’s not about punishing poor people. It’s about your failure to live up to the deal you made. And it protects society from whatever else you might do. It’s really pretty simple. We put the focus on protecting the law abiding. Probation is a favor we extend to you. You bite the hand that feeds you and you get locked back in the cage. It works for unruly parrots and dangerous dogs. It should work for feral humans as well.

Ted Noel MD is a retired Anesthesiologist/Intensivist who posts on social media as DoctorTed and @vidzette.

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