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August 01, 2018 Judicial Ethics

Judicial Ethics of Bail Decision Making

By Marla N. Greenstein

Perhaps the most difficult assessment a judge must make is in deciding bail. The various articles in this issue raise the inherent difficulties with a cash bail system, but for the vast majority of judges, that is the system they must implement . . . at least for now. Judges know they must be competent in the law and perform judicial duties without bias or prejudice (ABA Model Code of Judicial Conduct Rules 1.1, 2.2, 2.3). And yet, the bail system as created by law gives little legal guidance in any individual circumstance and we know, from the research, inherently incorporates bias.

Every judge reading this issue is likely reviewing his or her own recent decision making and questioning the influences that led to that particular outcome. Was the amount too high for that offender? Were there alternatives to cash bail that could have been considered? Did the race of the accused affect the bail decision? Most importantly, how do I know?

A judge technically complies with the Code of Judicial Conduct when the bail decisions are within acceptable ranges, when they are applied equally to those similarly situated, and where all the relevant factors are considered by the judge on the record. The articles in this issue examine further how judges can most fairly ensure a defendant’s appearance at future hearings and safeguard the community from those who are likely to offend if released.

Many judges have been told that to reduce implicit bias in their decisions, risk assessment tools should be used. The “Practical Guide for Judges” included here illustrates that not all risk assessment tools are equal and often contain their own biases that require further thought by each judge. A judge who applies the assessment tool and accepts its outcome of “high risk,” without further thought in its application, does not fulfill the responsibility of acting without bias or prejudice. By giving another look at each assessment’s components, a judge can make a fairer bail decision.

Public pressure can lead judges to set an unusually high bail in proportion to the crime rather than the danger the defendant poses. A defendant of means will be released given that approach, whereas a defendant who commits the same offense but does not have cash resources will be incarcerated. While technically treating both defendants “the same,” we know that there is an inherent unfairness in the outcome. “Efficient Injustice” points out this inherent systemic flaw that interferes with a judge’s obligation to act without prejudice.

Ultimately, the articles that reflect the highest goals of the Code of Judicial Conduct are those that call upon judges in their leadership roles to change the existing cash bail system. Judges in New Jersey, New Mexico, and the District of Columbia all provide examples of judicial leadership in reforming pretrial justice systems. They provide a call to each judge reading this issue to rise to the Code’s fundamental precept: to promote public confidence in the independence, integrity, and impartiality of the judiciary (Rule 1.2). As Justice Charles W. Daniels so eloquently expresses: Judges must have the intellectual honesty to reexamine bail practices that make no sense and the moral courage to correct what is wrong. n

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Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at [email protected].