Criminal Justice

Bizarre Pretrial Conditions Show Need for Counsel at Bail Stage, Law Profs Say in Op-Ed

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Some judges appear to be acting as social workers or agents of public retribution when they impose unusual pretrial conditions on a defendant’s release, according to two law professors who wrote a newspaper op-ed.

Writing in the New York Times, law professors Dan Markel of Florida State University and Eric Miller of St. Louis University refer to some well-publicized cases. A federal judge in California released a defendant on the condition that he spend an hour and a half each day reading books and writing book reports. A trial judge in Florida ordered a domestic dispute defendant to treat his wife to a night of bowling and dinner at Red Lobster.

The unusual conditions of release “spotlight a pervasive phenomenon hiding in plain sight: the abuse of bail and other pretrial release powers for punitive and rehabilitative purposes,” the professors say. Other frequent requirements include drug testing and a ban on alcohol, even in cases that have no connection to domestic abuse. Judges are “thinking up untested responses on a case-by-case basis” and imposing “the values of the temperance movement on the criminally accused,” they write. Defendants can easily violate unreasonable bail conditions, they say, leading to unnecessary arrests and overcrowded prisons.

“This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges,” their op-ed says. “But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of ‘pesky’ lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether.”

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