So I read the report. It was a special report of the Bureau of Justice Statistics. It’s written by some people with Ph.D.s after their names. It covers a 15 year stretch, from 1990 to 2004, and the 75 largest counties (I think in the nation, though it doesn’t quite say). This is what statisticians call a pretty good sample.
And what do we learn from this report? The sun rises in the morning and sets in the evening. Francisco Franco is still dead. Defendants who are out do better than defendants who are in. Defendants with high bail are more likely to stay in than defendants without bail.
About the only piece of news in the report is that there has been a trend toward bail rather than ROR, and that bail bondsmen are doing better because of it. What this means to me is that defendants are spending more of their hard “earned” money on bail bondsmen instead of criminal defense lawyers. Boo. Hiss.
I would like to tell you that the report is a fascinating read. It’s not. It’s a bore. Worse yet, it is an academic-type effort to state what every criminal defense lawyer knows and sees every day in the trenches. Big deal. This is what DOJ spends its money on.
But Volokh found this report “very interesting,” so I felt compelled to find out why. I asked him. He deflected. I asked again, sorta. This was his response:
(link)
Eugene Volokh (www):
SHG: I guess I’m not really inclined to respond further, given the tenor of your more recent comment.
11.19.2007 10:59pm
Apparently, I’ve hurt his feelings and he’s not going to tell me. Is it because I challenged his assertions? Is it because I called him “Gene”? Is it because he’s so used to the adoration of the libertarian wing of the conservatives who take for granted that if he says so, it must be? Maybe it was the picture I posted of him all dolled up at the Federalist fête? I thought he looked pretty good in the photo.
Why does it matter? Because there are a whole lot of people who read the Volokh Conspiracy, far more than read Simple Justice, and Volokh tends to carry a big stick when it comes to being persuasive with judges. You remember judges, the men and women who make decisions about our clients. So if there’s something in this report dealing with pre-trial release of defendants that is “very interesting,” I, for one, would like to know what it is so I can understand it and address it.
No such luck. Volokh threw out the comment, and now won’t back it up. So this is a personal note to Eugene Volokh (everybody else, avert your eyes): I apologize for offending you and treating you disrespectfully. Please tell me what you find very interesting. I really want to know.
You can open your eyes now (I know, don’t say it, Matlock). If there’s going to be a significant group of people, some of whom hold sway over the pre-trial release of our clients, who are being told that they are cutting them loose too easily, too freely, to the detriment of society, then we need to know about it. If Francisco Franco is still dead, we should know that too.
I sure hope that Volokh accepts my heartfelt apology. I really do want to know what he’s thinking.
UPDATE: Volokh has surfaced! But only long enough to inform me of the following:
SHG: I didn’t find your comments disturbing. I did find a comment that simply said “Non-responsive” to be rude.
But still no answer to the question. So now I’m rude? Apparently so, because short answer from his fans demonstrating their adoration are fine, but from some low-life practicing lawyer like me is rude. This is a shame. The Volokh Conspiracy comes up with some very interesting posts and links, and because of the libertarian/conservative/Republican political bent, it offers much to discuss. It’s too bad that Eugene Volokh would rather hide then stand behind his comments. Oh well. Another lawprof who likes to ask questions but can’t answer them. I really am sorry that it turned out this way.
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An example: You might have known this all along, but I was pretty surprised that 19% of people accused of murder are in fact let out on bail. I’d have thought the system would be harsher on them, given that people accused of murder are likely to be seen as both public safety risks and flight risks (given the magnitude of the penalty they’re facing.)
As to many of the other items, I wasn’t so much surprised — I don’t follow the subject enough to have a fixed set of views that this report would shake — as interested to see hard data. I like hard data even on subjects on which I have educated guesses, and even more on subjects that I know little about.
(As to the one-word response “non-responsive,” yes, that is a rude statement that’s not likely to dispose the other person to spend more time reacting.)
Thanks for coming by. Would the 19% seem less surprising if you considered the following:
1. Some defendants charged with murder are solid citizens with nowhere to flee and very substantial ties to the community. The likelihood of flight is almost non-existent, notwithstanding the serious of the charge.
2. In most state courts, only risk of flight is a criteria for bail (although courts always tacitly consider safety as well).
3. The charge of murder, as used in the report, covers a broad spectrum of offenses beyond intentional murder, which is what ordinarily comes to mind.
4. Bail is set at the arraignment phase, where the charges are often overwrought and well beyond the scope of the factual allegations.
What would probably be more helpful in understanding the report is to limit the classification of murder to “intentional murder,” and then see how many people initially charged with intentional murder ended up with an intentional murder disposition. Just because there’s a dead body doesn’t mean there’s a murder. In the trenches, the view is very different than it is from reading government reports.