In  an op-ed in the paper which shall not be named (but continues to bill me three months after I canceled my subscription), Dan Markel and Eric Miller noted the imposition of punitive conditions as part of pre-trial release.

To be sure, the presumption of innocence is not a guarantee against pretrial detention or other restrictions on liberty. As the  Supreme Court has acknowledged, a defendant’s pretrial freedom can, upon a hearing, be limited in various ways when it comes to addressing substantial and reasonable fears having to do with flight risk or danger posed to the community (or danger to the judicial process itself, like in cases of witness tampering). So we don’t dispute that defendants can be, say, monitored by tracking devices while they are released.

But flight risk and crime prevention don’t justify bail conditions requiring book reports or bowling, which have far more to do with punishments or moral education techniques. While such sanctions could be permitted after conviction, they are flat-out unjustified before adjudication.

Of course, they also note that pre-trial release conditions aren’t the sort of things defense lawyers tend to make a big stink about.

Unfortunately, the vast majority of these improper release orders fly under the radar. Indeed, the use of bail conditions as a means of engaging in low-level punishment and rehabilitation is more widespread than is generally understood.

In the first place, defendants are usually sufficiently thrilled to be free from custody as to be unwilling to do anything that risks alienating the judge or causing a change of heart. If it means they can’t toss back a cold one, it beats the hell out of the next 18 months in the alternative general population.

Moreover, few defendants with retained lawyers can afford to have them fight phantom battles over transient issues. And indigent defenders struggle for funds to provide basic defense, no less fight for relative trifles. And then there’s judicial paternalism, where kids who grow up to be lawyers who lick enough envelopes at the party HQ to become judges, think they’re imbued with such magnificent moral bearings as to dictate righteousness to the huddled masses.

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. 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. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.

But the point, that the imposition of conditions that are either punitive, particularly when judges get imaginative and decide to ram their personal vision of morality or behavior modification down the throats of presumptively innocent defendants, or utterly without justification based on the facts of the case or concerns for safety of the community, is pervasive, is well taken. 

Indeed, under the broad discretionary provisions of the  Bail Reform Act of 1984, courts slough off the responsibility of determining the propriety of individual conditions to the pre-trial services officer, who then requires the released defendant to adhere to “standard conditions” that bear no legitimate connection to anything under the sun. For example, drug testing for defendants who are not accused of crimes relating to drugs and have absolutely nothing in their background to suggest drug use is common. It’s not that the defendant’s personal circumstances suggest any need for it, but it’s just what they do.  And, for obvious reasons, no rational defendant would risk a violation of pre-trial release by refusing, especially since they have no fear of passing with flying colors.

Naturally, Dan Markel caught flack for his position.

I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can’t speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren’t saying such restrictions on alcohol or curfew or drug treatment were never reasonably imposed. Rather we were concerned that they sometimes aren’t related to the crimes or the offenders but were still imposed.

I get the sense that Dan gets emails from different judges than I do.  Whether such conditions are truly “an important component” or fall under the banal “better safe than sorry” approach to pre-trial release, despite the statutory mandate that conditions be the least onerous possible within the framework of release, is impossible to tell without details (from both sides, by the way).  That said, it ignores the fact that such conditions are routine, and nobody makes a peep.

It’s the rare case when anyone bothers to give much thought to the conditions imposed for release. Usually, it’s the outlier case, where a defendant is ordered to take his wife to Red Lobster, that gives rise to a few laughs and some commentary. The other situation is the high profile case, such as George Zimmerman, raised by Dan in his op-ed.

Drug testing, desisting from alcohol, as well as attendance at rehabilitation programs and mandatory job training programs have become all-too-familiar requirements of pretrial release, even for cases, like Mr. Zimmerman’s, that are unrelated to substance abuse.

This drew a  fascinating reaction from Hofstra lawprof Monroe Freeman, who peremptorily dismissed the motion by Zimmerman’s lawyer, Mark O’Mara, for recusal based on Judge Kenneth Lester’s “gratuitous” and “disparaging” remarks toward Zimmerman in deciding release.

The motion should be denied.  As the Supreme Court held in Liteky, the judge is supposed to form opinions based on the proceedings before him.

The  Liteky decision was a true gem, holding that neither personal bias nor prejudice gives rise to recusal unless it’s “wrongful or inappropriate.”  And this is the sort of blind judicial deference that gives judges the sense of omnipotence to require a defendant to write book reports as a condition of release.  So shut up, pee in the cup and be happy you’re not in the hole until we get around to trying you.