Several Western Washington lawmakers have made it a goal of the 2010 legislative session to prevent certain criminal suspects from being released while they await trial.
The lawmakers’ determination is easy to grasp. Four Lakewood police officers might be alive today if their alleged killer, Maurice Clemmons, had not been able to post bail after his arrest on a child rape charge.
Clemmons will never be found guilty of the rape or the police shootings, having been shot to death in a subsequent showdown with police, but the tragic chain of events has left Washingtonians angry. It didn’t have to happen.
If state Sen. Mike Carrell, R-Lakewood, and Reps. Troy Kelley, D-Tacoma, and Mike Hope, R-Lake Stevens, get their way, it’s less likely to happen again. They are sponsoring legislation that will go so far as to amend the state constitution to deny bail to people who, like Clemmons, face charges that could put them behind bars for life.
Given the recent spate of police shootings – which includes the death of a Seattle officer on Halloween, plus a recent Spokane incident in which an officer was apparently shot at but not hit – the hard-nosed legislation will enjoy considerable popular sympathy.
But this is a time to guard against overreaction based on emotion and outrage.
Even Don Pierce, the head of the state Association of Sheriffs & Police Chiefs, noted that cuts in state mental health treatment and community services could be a more serious concern from a law-enforcement perspective than “passing legislation that doesn’t do anything.”
Well-intentioned as it might be, the proposed legislation is based heavily on hindsight, and it risks serious constitutional conflict with a core value of American jurisprudence, the presumption of innocence. People who are presumed innocent should not be confined, they should be able to prepare for their own defense and they should be able to provide for their families – all among the reasons that the Eighth Amendment prohibits excessive bail.
Courts impose bail not to punish but to ensure that a defendant will show up for trial.
The Supreme Court has upheld “preventive detention” for defendants who might endanger others if released, but making that determination is a job for judges, who can apply their discretion to the gravity of the charges, the suspect’s ties to the community, any history of failure to appear and other circumstances specific to the case.
The presumption of a right to post bail goes back at least to the 1689 English Bill of Rights, which was enacted to correct abuses committed by the courts against the enemies of the Stuart kings. Every so often it backfires, as seems to have been the case in Lakewood, but overall the concept has served freedom well for more than three centuries.
Legislative attempts to define a class of defendants to whom the Eighth Amendment won’t apply could be an erosion of Americans’ civil liberties and a costly waste of time.