The content on this blog is my personal opinion and does not reflect the views of the Department of Defense or the US Navy in any way.

Wednesday, June 20, 2018

Judicial Discretion and Bail

Add this to the myriad list of ways in which our justice system is not as scrupulously fair as it really needs to be: the way in which it determines who gets bail and who doesn't can vary quite a bit depending on exactly what judge is in charge. 

... Well, okay, I'll qualify that a little bit. I'd really like more data, because it's difficult to tell what the proper exercise of the average judge's discretion is supposed to look like.

Certainly, the numbers in this article seem to argue that the difference is too wide to be explained by anything other than differences in the criteria used by various judges. In particular, the fact that there are differences between judges working in the same area needs a convincing explanation, because I expect their case loads would feature similar types of people. It's hard to believe that one judge just happens to get a majority of people who cannot be trusted to return without bail and another judge gets a majority of people who can be released on their own recognizance. And the anecdotes featured later in the article support the idea that there's quite a bit of subjectivity in this process.

That said, I think a proper measure of success in this matter is less about how similar all the judges' numbers are and more about how many decisions they make correctly. If all the judges were closer to the median, it would still be possible that all of them were being too lenient or too harsh. Which is why I say I want more data; ensuring we are applying bail equally would certainly be better than the current state, but I see no reason not to aim for the right balance between ensuring our justice system can still function and avoiding as much damage as possible to defendants' lives.

Unfortunately, figuring out where we were overly harsh would be extremely difficult, since I don't know of any good way to figure out who out of the people held on bail would have returned even without that incentive. Figuring out where we were too lenient, on the other hand, seems like it would be quite easy - those are the people who were released on their own recognizance (or with a very small bail) and don't return for their trials. That suggests to me that a good judge should err on the side of leniency but keep track of how many people aren't coming back in order to ensure that they aren't going too far. 

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