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Monday, May 21, 2012

Reading Assignments as a Condition of Bail? Really?

Well, as Judge Vaughn Walker says, it might have something to do with the seat.

That's because when Judge Walker's successor, Judge Yvonne Rogers, became a federal district court judge in San Fran, she seems to have inherited his penchant for creative sanctioning. You might recall Walker garnered fame not only for his role in striking down Prop 8's restriction on same-sex marriage, but also for the shaming sanction  he imposed on Shawn Gementera, who had to stand outside a post office with a sign that said "I stole mail.  This is my punishment."  (The Gementera sanction was affirmed by a divided panel on the Ninth Circuit and the opinion is now part of many crim law casebooks. Disclosure: I had a small role in the appellate proceedings.)

Now, Judge Rogers has triggered some curiosity across the country for a recent bail provision imposed on Otis Mobley. Specifically, while Mobley is released in advance of his upcoming trial, he is required, as a condition of bail, to read certain books for an hour a day and to write a report for a half hour a day.

The reading list hasn't yet been circulated, but still, one has to wonder about the suitability of such a condition with respect to bail. It wasn't included in the list of conditions recommended by the magistrate judge--not surprisingly.  Regardless of how one feels about such creativity in the context of punishment,* one has to wonder about its usage when it comes to bail conditions.

After all, bail is pre-trial, and thus pre-adjudication. Moreover, we do have this business associated with the presumption of innocence. SO, while it's one thing to say that the moral weight of such a presumption can be overcome when it comes to substantial and reasonable fears having to do with flight risk or danger to the community (or danger to the judicial process itself in cases of witness tampering), those issues are hard to imagine as related to the conditions associated with reading and writing reports. Rather, it seems as if reading and writing reports are tethered to the blaming and communicative functions of punishment for wrongdoing. To my mind, such conditions should not be imposed because they blur the lines of what we're trying to achieve, as a society, before and after adjudication. To be clear, I'm not saying that Mobley should not be released (although he has some, um, icky issues to work out) and I'm not saying he should be detained pre-trial. But the judge's order is curious because it is likely to be conceptually confused about the nature of pre-trial release and detention. It would be nice if we could find out, soon, what the judge is assigning, and why.

*Putting aside some rule of law reservations that nag at me about "creative" sanctions and punishment generally, I'm largely in favor of guilting punishments (which are designed to facilitate moral education without the public degradation associated with shaming punishments). As a general matter, it's fair to say that assigned reading and writing can facilitate those valuable guilting goals, perhaps even quite well. (Still, I'm not sure I'd go so far as ordering a defendant to write a book, as this WSJ story details about a defendant in a pharma-related crime.).  By contrast, I have a strong aversion to shaming punishments, which I think are largely illiberal and anti-retributive in spirit, as laid out here, among other places. For those interested in alternative sanctions more generally, I've linked to a few here (under media appearances) for some news stories over the years about the phenomenon.


Posted by Administrators on May 21, 2012 at 03:57 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Culture, Current Affairs, Dan Markel | Permalink


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I think this is a real problem: I'd be interested to hear what others think. My take is that bail is governed by the 8th and 5th Amendments, and that the conditions on bail must be directed to the regulatory goals of ensuring that an offender appears at trial and (under Salerno) community safety. This leaves no room for punishment, and it ought to leave relatively little room for "creative" conditions for supervising bail that go beyond these relatively narrow constitutional permissions (appearance and dangerousness). Accordingly, rehabilitation is not a permissible goal of bail; neither is shaming or other means of sending a message. Many courts, for example, include drug supervision conditions: are these permissible as conditions of bail?

The problem may be wider than Professor Markel suggests. The recent rise of problem-solving courts has has sometimes included the expression of creative supervision conditions for pre-plea supervision orders. I'm intrigued by the idea that these are really conditions of bail, and that they go way beyond what is permitted under the 8th and 5th Amendments. Furthermore, I don't think the urge to use creative supervision is limited to, e.g., pre-plea drug or mental health courts, as this case shows. Some judges want, for example, to impose community service as a condition of bail. And for the judge, the beauty is that she gets to directly interact with the offender, without pesky defense counsel who may well not be present at the bail hearing.

What appears to be happening in many of these instances is that the court is misusing bail as a form of probation/diversion/treatment/statement-making. And this happens more regularly than we might allow, in part because this part of the criminal justice system does not make it to the appellate cases terribly often nor produce trial-level opinions. I hope that the new penchant for studying misdemeanors and lower-level courts that is part of the scholarship of Alexandra Natapoff, John King, and a recent paper by Nirej Sehkon on contempt and probation makes more perspicuous this type of judicial activity. (Full disclosure: I'm working on a paper discussing where, institutionally, problem-solving courts fit in the criminal justice system: they appear to operate at the pre-trial, probation, and parole bits of the process, and at the misdemeanor/lower-felony end of the scale of sentences).

I certainly think that we need to embrace the sort of anthropological and criminological studies that would make lower court practices more open to public scrutiny. Particularly those parts of the process in which defense counsel are least likely to be present (bail, probation, parole). I have some reasons for thinking that defense counsel are not a panacea, even if present, to do with repeat players and informal norms: Malcolm Feeley's The Punishment is the Process is the locus classics for all of this. I also recognize there is a consent issue. However, if I remember correctly, Judge Kozinsky published an opinion a few years ago discussing something about the role of consent, bail supervision, and unconstitutional conditions upon exercising liberty rights, that suggests that certain supervision conditions may indeed be unconstitutional.

Posted by: Eric J. Miller | May 22, 2012 6:11:21 AM

Any potential First Amendment problems here?

Posted by: Howard Wasserman | May 22, 2012 12:01:34 AM

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