Tuesday, November 23, 2021

Only One-and-a-Half of These Things is Correct

"The bail amount is supposed to consider a person's prior record, their character, whether they might flee, and whether they might commit a crime while out on bail."

This, in the context of whether Waukeasha defendant Darrell Brooks's bail on a previous incident was "inappropriately low."

The purpose of bail is to incentivize appearance at trial, full stop. Not to penalize him for having had prior legal problems, or being a bad person, or for the possibility that he might commit a crime in the future.

Of the factors listed, one is obvious: Is the amount high enough that the defendant will show up for court rather than forfeit it?

The other is partially relevant: Has the defendant skipped on bail before? In Brooks's case, the answer appears to be "yes," and it would be reasonable to consider whether the bail should be higher (since the previous amount wasn't enough), or perhaps even denied entirely.

No other consideration has any place in setting bail. Not because the defendant is innocent or probably innocent, but because that's what the trial decides. Until the trial, the defendant is supposed to be presumed innocent.

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