Bad Bail Begets Bad Reaction

It was sold as the usual lie on the twitters, a rosy tale of peaceful fighters for justice and a mean, bad judge.

They surely don’t appear to be rioting in the image, but then, the image was after the arrest. That doesn’t tell the story, any more than how wonderful and brave these warriors for equity may be. Assuming they are, that doesn’t mean they get to riot and destroy any more than miserable and cowardly folks.

But the other half of the story is the $1 million dollar bail set by Judge Bruce Roth. Perhaps he takes the offenses seriously. Perhaps he has reason to doubt they will return to court as required. Perhaps he thinks these defendants will be back on the streets engaging in criminal conduct again. Perhaps. But the judge’s “perhaps” smacks head first into the Eighth Amendment.

Excessive bail shall not be required….

The charges against them are not petty.

The protesters are each charged with felony arson, riot and vandalism charges, among other protest-related charges. At least six of the eight people arrested Monday morning had bail set at $1 million by Magisterial District Judge Bruce Roth on Monday night, according to court documents.

But setting bail at $1 million is essentially detention, as it’s impossible bail to make. As serious as the charges may be, pretrial detention is not the place for incarceration as punishment. That only comes after conviction.

Pennsylvania’s Lt. Governor, John Fetterman, condemned the bail, which wasn’t requested by the police, as unconstitutional.

“It’s self-evidently unconstitutional,” Fetterman said. “Whatever the merit of the underlying charges, what is absolutely indefensible is a million dollar bail for those charges.”

While the question of what constitutes “excessive bail” isn’t the amount you, or I, or Fetterman, would fix, and “self-evidently” isn’t the bar, but whether the bail is greater than the amount needed to satisfy the governmental interest in assuring the defendant’s return to court and compliance with the terms of release, and no more. Detention, or effective detention, can only be justified when no amount of bail can assure the safety of the community and compliance with the requirement to return to court.

The million dollar bail in this instance grossly exceeds an amount reasonably calculated to serve the legitimate purposes. Judge Roth went hog wild. No matter how furious he may be that this happened in his neck of the woods, he doesn’t get to take it out on the defendants by setting excessive bail.

The remedy is to move to reduce the bail and, if denied, bring a writ to have bail reviewed by a different court. While that may happen here, it may not be all that’s going to happen.

Was Judge Roth wrong, very wrong, to set such astronomical bail in this case? Sure, and the legal system provides a mechanism to address it. It’s been suggested that his intentional setting of excessive bail could subject him to prosecution for a civil rights violation under 18 U.S.C. §242, but that’s inapplicable at best and fantastical at worst.

Is the claim true that Antifa is going to go after Judge Roth at home, make his life and that of his neighbors unbearable? Beats me. This may be a complete fabrication for all I know and there are no plans to do anything of the sort. Sadly, manufacturing outrageous actions and reactions to blame the other tribe has become common, and makes it far too easy to create an outrage to pin on one’s adversaries. Until it happens, it hasn’t happened. So why raise it?

Protests, and worse, have been used as weapons against mayors, police and others. Whether one prefers to claim it’s a legitimate means to seek redress of grievances or terrorist tactics for a small minority to impose fear and misery to get elected public officials to capitulate to their demands is an open question. It’s one thing to express one’s grievances to an elected official, and another to engage in conduct designed to target them with harm, damage and misery lest they acquiesce.

But should this move from mayors to judges? If a judge does something wrong, is it a legitimate means of redress to impose punishment on the judge? The legal system has mechanisms to address errors by judges, whether inadvertent or, as here, deliberate. This isn’t the first time a judge has issued a ruling that a group finds terrible. Remember Aaron Persky?

What would be the impact of targeting a judge in this way? Would judges be outraged by this extrajudicial use of force to punish them for a decision that some group despises? Does it matter that the judge was wrong? Would the mob make that distinction the next time, or would any ruling with which it disagrees serve as cause to go after judges at home, at a restaurant, at their children’s school, if this proves effective?

Being a judge is a curious job, having once been the crown on a legal career to now being a alternative career path for lawyers, with judges being younger, and sitting longer, than ever before. The pay is lousy, but people laugh at your jokes. The job is mostly boring and tedious, but the decisions can impact a great many people. For some, this is a dream job. For others, a nightmare position.

Add to that the potential that a decision, whether made in anger, even though it should never happen, or merely contrary to the will of one mob or another, will end up resulting in being targeted for nightly attack, and possibly a deranged person with a gun at the door.

The independence of the judiciary is a foundational element of the legal system, despite so many trying to tie judges to their patrons and argue that judges’ former jobs, racial and gender characteristics should dictate the decisions they make. The former is simplisitic nonsense, but people believe it to be real and so they pound it into the heads of the clueless as the cure for a legal system that fails to produce popular outcomes.

But adding protests and rioting, physically going after judges where they live, is the worst way to influence the legal system. Judge Roth’s bail was excessive, and should be reduced upon motion. That doesn’t mean it will be set at an amount they can make, but at least the amount must be reasonable for its legitimate purpose. Hopefully, that will end this insanity and the outraged will move on to other causes. But making Judge Roth pay by rioting at his house is the worst way to address his bad decision. Grieve him all you want, but leave his home alone.

25 thoughts on “Bad Bail Begets Bad Reaction

  1. Dan

    So let’s take one of those “perhaps” you suggested:

    > Perhaps he thinks these defendants will be back on the streets engaging in criminal conduct again.

    It doesn’t seem like an outlandish possibility, given how thoroughly convinced the woke are of the rightness of their Kampf. In that case, it isn’t much of a step at all to:

    > no amount of bail can assure the safety of the community

    But in that case, it seems the proper course of action would be to simply deny bail.

    1. SHG Post author

      That could be the case, though the basis for such a finding when none was proffered by the prosecution might present a problem.

  2. Quinn Martindale

    “ terrorist tactics for a small minority to impose fear and misery to get elected public officials to capitulate to their demands”

    Protest is not terrorism. There have been protests against the judiciary for decades, and the judiciary is fine. You can make the case that protesting a public figure’s private residence is an immoral or ineffective tactic without lapsing into this nonsense. The guy you’re quoting about the proposed protesting tactics goes on to talk about how Isis and Antifa are teaming up.

    Kentucky also has elected judges, so worrying about judges being influenced by the public seems like a bit of a lost cause.

      1. Quinn Martindale

        So what do you think could be described as “terrorist tactics”? The whole post is discussing a black lives matter group allegedly planning to use megaphones outside of a judge’s house. Many other groups have had protests like for elected officials that around the country, and none of them have involved any violence against the elected officials. The only example of vandalism of a residence I’m aware of is a Chicago suburb where protesters egged the house and spray-painted the sidewalk.

        1. SHG Post author

          In Portland, they vandalized Wheeler’s building, spray painting, throw rocks through windows, and chanting in the middle of the night to prevent him and his neighbors from being able to sleep. In NY, they used lights and sirens at Commissioner Shea’s apartment to harass him and his neighbors in the middle of the night.

          And then there was the murder of Judge Esther Salas’ husband and shooting of her son at home.

          Doing things to make life unlivable, not just for the target of your outrage but to innocent bystanders to coerce them as well, isn’t protest, Quinn. At least not to anyone who isn’t a complete sociopath. I sincerely don’t know if you’re just that stupid or a seriously sick person, Quinn, but either way, you’re a danger.

          1. Quinn Martindale

            I’m usually the one with the weird tangents. I’d put lights, sirens and chanting on one side of the line and rocks on the other, but it’s absurd to call either terrorist tactics. Thanks for answering my question though.

        2. Rengit

          So does a protest outside a public official’s house only become “violence” once somebody decides to assault the official at their residence? Let me guess, throwing rocks through the windows, setting the lawn on fire, smashing the mailbox and the lights, blocking the driveway, blasting music and fireworks so they can’t sleep, isn’t “violence”, because home insurance will pay for it and property damage can be fixed, human lives can’t. What’s next, breaking someone’s arm isn’t violence because health insurance will pay for it and broken bones can be fixed, human lives can’t? These slogans are so easy a 5 year old could write them.

          1. SHG Post author

            What you see here is the rationalization process that deludes people into justifying their actions. If it was done to prisoners, sleep deprivation would be torture. If it’s done to a judge or mayor (or their neighbor’s sleeping baby), it’s protest.

          2. Quinn Martindale

            I could make a big deal over the violence (harm to people) versus vandalism (harm to property) distinction, but ultimately both are wrong. So rocks through windows, setting fires, smashing the mailboxes or lights are not justified to make a political point. Blocking a driveway, blasting music or shooting fireworks (not at an anyone) are rightfully against the law in this context, but I don’t think they are immoral or illegitimate. There’s plenty of light and noise in a holding cell but that’s not torture by sleep deprivation.

            There are lots of different protestors out there, but there really aren’t any organized groups pushing for violent revolution which hasn’t always been the case in this country . BLM isn’t the BLA. Nothing in this last wave of protests has come close to 1992 LA or the race riots of the 60’s. All of this existential dread is completely devoid of historical perspective.

    1. David

      Save the spin bullshit for the idiot children. Are you incapable of following a thought or do you think this sort of childish crap won’t get you ripped a new asshole here for being a moron?

  3. Rengit

    Assuming it’s true: targeting judges is one of the factors that derailed radical 60s groups like the Black Panthers, thinking specifically of their taking hostage of a federal judge in Marin and eventually killing him during the course of the kidnapping. It doesn’t intimidate the judges, instead it causes them to rally around each other and the rest of the justice system and much of the executive branch to rally to their side. If you don’t like what a judge is doing, follow the ACLU’s historical method; unfortunately, that requires patience and good faith.

  4. Baker Paul

    The fact that there is a nationally funded and openly political organization with deep pockets funding the release of rioters in order to re-riot may have influenced his bail order. If there is a way to limit the bail posting by non-local organizations, perhaps this should be pursued. Maybe only one person per incident can be bailed out with non-local funds.

  5. John Barleycorn

    “..he doesn’t get to take it out on the defendants by setting excessive bail.”

    Well yes, yes he does, and just did. Just like a cop is well aware of the “ride,” so too is a judge or two, or three, or more…

    Oh well, everyone but the defendants are getting paid I guess?

    Besides, elections are hard and fantastical, it would be a shame if any of the elected ones had in mind using the judiciary to make them inapplicable…

    Tsk-tsk, what is happening to the guild…

    P.S. We should probably cut Bruce some slack though eh? Those personal injury lawyers poll even lower than you lowly CDLs in the grand scheme of guilded ones after all.

    Probably just a bad hair day… and a million for you, and a million for you, and a million for you…. and down drops the gavel. Could have been worse I guess?!

    1. SHG Post author

      By “doesn’t get to,” we mean lawfully. That wouldn’t apply to anyone driving the Habeas Harley (who won’t ship it out to me for a little cruising).

      1. John Barleycorn

        Yeah, yeah, yeah…Bruce’s bail orders are delusional which will eventually make them inapplicable or unlawful as you may prefer…

        Makes sense for someone who has not even perfected drifting in their six wheeled baby tractor yet, to miss the “fantastical” point, that being Bruce’s bad hair/bail day remains, until it doesn’t and that is not delusional at all.

        Good thing there remains a few CDL’s out there, still firing on all cylinders, even on bad hair days, or who knows how intricately insane the entranced web the judiciary has weaved for itself could get…

        P.S. You know you could always “pretend” and slap a bumper sticker on that convertible you have that all but the brightest of Judges mistake for an MG unless they happened to be former personal injury attorneys.

        Or you could send pics of the best fall roads you have in the area and get me a lunch date with Barbra and mount the real deal….

  6. B. McLeod

    The protesters are well across the bridge of rioting and burning to intimidate police and prosecutors. Why wouldn’t judges and juries come next in logical order? If convictions of officers are the ultimate demand, all these people are going to be targets. If judges interfere with the rioting and burning, that makes them logical targets for that reason also. The anarchists are anarchists. They are and have been attacking the whole legal system, seeking to supplant it with whatever angry mobs demand in any given case.

    1. Miles

      We’ve watched as all societal mechanisms have been circumvented, with #MeToo, cancel culture and riots. I hesitate to use the word anarchy, and believe that many of the promoters of the current social justice trend really believe this can somehow be sorted out and then put back into the bottle so we can return to some sort of normal society, but I fail to see any way out other than to crush it. And crushing it as just as wrong.

      But when there’s no longer any ability to rely on the socially established means of resolving grievances, what else is there?

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