Rich Man Bail

Almost immediately after OJ’s aquittal, defendants came to the office demanding a “dream team.” OJ had a dream team, and they wanted a dream team too.

Me: Cool. How much money do you have?
Client: Money?
Me: Dream Teams cost money. How much money do you have?

They could not, of course, afford a dream team. Some couldn’t afford a lawyer at all. Some would complain that it wasn’t fair, and perhaps it wasn’t, but that wasn’t going to change anything. They were entitled to counsel because the Sixth Amendment says so. They were not entitled to my counsel. Nor were they entitled to a dream team.

The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.

–Anatole France

When Harvey Weinstein decided to surrender, it was handled in the usual manner, prompting writer Samuel Oakford to ask:

Why do rich people get to come to an agreement or whatever with authorities about when they are going to get arrested?

It’s a good question, even if framed in the wrong way. The process has nothing to do with the wealth of the defendant, but the circumstances surrounding the surrender. Less rich people get to surrender as well, though they’re insufficiently interesting so outsiders to the law don’t know or care about it happening. They only see what interests them, so naturally assume that it never happens except when they know about it. Nothing narcissistic about that.

But as noted in Ken White’s twitter ‘splainer, there are factors, circumstances, that make this more of a rich person’s game than a poor person’s. Or more correctly, a situation that is unavailable to the poor. The reason isn’t complicated as the two most significant factors to a surrender rather than an arrest is the knowledge, in advance of arrest, that it’s coming and the ability to retain counsel.

It’s not uncommon that people are alerted to the fact that the police are looking for them. They regularly show up at people’s last known address asking for them, and if they’re not there, leaving a card and asking that they call. They sometimes explain why they’re there. Sometimes not. It’s rarely to invite them to the Policeman’s Ball.

At that point, the person sought has three choices. Run and hide. Call the detective and go down to the precinct for a nice chat in a windowless room. Call a lawyer. Only the third option has the potential to result in a voluntary surrender. But they will have to retain the lawyer. This isn’t a public defender gig, but a private gig. And private lawyers get paid for their representation, so money becomes relevant.

Does this mean the poor are left to sleep under bridges where the less poor are not? Sure, just like many aspects of life. One can complain about greedy private criminal defense lawyers, always wanting money for their services, but then they need to earn a living just like everyone else. They take an oath to zealously defend their clients. They do not take an oath of poverty.

For the unduly passionate, the question arises why private lawyers don’t take the case pro bono publico, which means for the good of the public, not because you’re broke. And most of us do, but we select our cases sparingly. Your “greatest injustice ever” isn’t necessarily ours. And yelling at the lawyer for being greedy for requiring money isn’t a very persuasive tactic.

There are a great many people asking for our kindness, many of whom are far more deserving than you. We can’t do them all. We can’t do most of them. And, to be frank, most pro bono clients are extremely demanding and shockingly unappreciative, as if they’re entitled to our efforts.

Harvey Weinstein had Ben Brafman representing him, and Ben did what any good lawyer would do, with the caveat that the prosecutor was agreeable. He arranged for a surrender, a prompt arraignment and an agreed-upon bail of $1 million. He showed up with bail in hand, so Weinstein was able to walk out a couple hours after he walked in.* It doesn’t work that way for most people, and outsiders were outraged that the rich guy was able to do this when poor people languish in jail on $1000 bail they can’t make.

Bail for Weinstein was silly. If he wanted to flee prosecution, he had ample opportunity to do so before surrendering. He chose to surrender instead. And if he wants to flee in the future, he can afford to blow a cool mil. Another benefit of the rich. Sure, there was Roman Polanski, one other movie guy who fled to France, but we try to individualize bail beyond just one movie guy absconded, so all movie guys abscond. If not, that would work really poorly for poor guys. Think about it.

Naturally, the most passionate idiot was incensed by Weinstein’s “special” treatment.

Abolish bail. Either everyone should get this treatment or no one should, but the idea that if you have millions of dollars you’re entitled to it and if you’re poor you get incarcerated without trial is obscene

Aside from the simplistic hyperbole, the clarion call for equality between the rich and poor strikes at the heart of the problem. Not the bail problem, but the problem of simple solutions to complex problems. Is it fair that, at the request of baby Ivy law school grads and callously scared judges, bail is needlessly set in amounts the poor can’t pay? No. Not at all.

But is denying someone who can retain counsel, negotiate a voluntary surrender and make bail going to fix it? That fantasy that if rich guys were denied bail it would all change is just that, a childish fantasy. The solution to fixing needless bail for the poor isn’t making the unpopular suffer too. The problem isn’t the benefit of being able to afford a dream team on the top end of the spectrum, but being denied fairness on the bottom.

*In between, there was the perp walk, a completely unnecessary show put on for the sake of the public and media. Perp walks only apply to people in whom the media takes interest. When there are no cameras present, there’s no need to put on a show. Unless a poor person commits a particularly horrific crime, this is one indignity they aren’t forced to endure.

19 thoughts on “Rich Man Bail

  1. Chris Van Wagner

    Great explanatory response to the knee jerkers. The bail reform movement sweeping the country (if slowly) will address the issue; sitting a Weinstein or a Stewart or a Helmsley won’t. Thank you.

    1. SHG Post author

      If it wasn’t trite at this point, I might quote H.L. Mencken. One of the factors making it increasingly more difficult to come up with, and put into effect, viable answers to intransigent problems is that people prefer simplistic solutions requiring neither knowledge nor thought. If no one calls bullshit on bullshit, then nothing gets fixed and more harm is done.

  2. Gregory Smith

    Glad you mentioned the “perp walk”, which I found offensive for two reasons: 1) that it was just a gratuitous display of power, done simply to satisfy police egos and as a bone to toss at the baying mob, but also 2) precisely so the police could immunise themselves against being critised for giving Weinstein “special” treatment.
    Cuffing and frog-marching a guy who voluntarily surrenders is completely unnecessary, and no reason why Weinstein could not have simply been given a time/place to appear for arraignment.
    By no means was this the first example: Stefan Buck, a Swiss banker, was indicted in 2013 for helping Americans evade taxes. The Swiss, of course, would never extradite Buck, and indeed could have him prosecuted if he shared any info with the American authorities. Nonetheless, he decided to voluntarily surrender himself in order to fight the charges, so he put himself on a flight to New York, where he was met by IRS agents who fingerprinted and SHACKLED him before imprisoning him overnight. He was arraigned and released on bail the next day, and (long story short), ultimately acquitted.
    Cuffs and shackles may make some sense where there is a genuine flight or security risk, and using them to mitigate those risks make sense. But they are NOT there as a means for police to intimidate or publicly shame people. As you note, if Weinstein was going to flee, he would have done so already. Buck voluntarily flew to the USA because he WANTED the trial that he knew would clear his name. Justifying the use of restraints (that are quite obviously used only as a means of intimidation) on defendants who clearly pose no risk on the basis of “we do this to poor people so we have to do to you too” is ridiculous and inexcusable.

    1. SHG Post author

      Let’s assume, for the sake of argument, that you aren’t the only person who’s ever had a thought about the perp walk. Let’s assume, for the sake of argument, that Stefan Buck (who has no place whatsoever in this post) isn’t the only person other than Weinstein who has endured the perp walk. Let’s assume, for the sake of argument, that this isn’t your soapbox to tell your orthogonal story. Let’s assume, for the sake of argument, that there was no post at SJ about the perp walk before you showed up.

      If we assume the foregoing, cool comment, bro.

  3. Dan

    When did it become “unfair” that people with more money get more stuff (“stuff” being the technical term including both goods and services)? What otherwise would be the incentive to get money? Those little green pieces of paper don’t do very much on their own.

    1. SHG Post author

      There’s a difference between benefit and detriment. The issue isn’t the benefit the wealth enjoy, but the detriment the poor suffer. The denial of constitutional rights is a detriment no one should endure.

  4. Hunting Guy

    Not Heinlein, but F. Scott Fitzgerald.

    “Let me tell you about the very rich. They are different from you and me. “

    1. SHG Post author

      That’s a very fascinating question. For a mere $25,000, I will be happy to prepare a memorandum on the question for you. Just hit the tip cup on the side bar and I’ll get right to work answering this very fascinating question.

            1. SHG Post author

              Many years ago, the daughter of my colleague was in the office and asked me how much I charged. I replied, “how much do you have”? She went on to law school and then wrote for Gawker. She now writes for Vice news. Does that answer your question?

  5. B. McLeod

    So. The criminal system is like the rest of everything. Rich people get things that poor people don’t.

    The ABA House of Delegates shall hear of this!! I am sure a Resolution will be forthcoming.

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