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Comment by Cyberdog | Hacker News Reader

> if the charge is murder, bail is automatically denied.

Not at all. Some judges may have that policy, and perhaps some state laws require it (though that would arguably not be constitutional and a violation of the separation of powers), but it's not certain that someone up on murder charges would not be able to bail out.

At any rate, the point is that if someone who has been charged - just charged, not convicted; remember, we're all supposed to be pretending people are innocent until proven guilty here - with a crime commits a crime before their conviction, the fault lies only on that person and that person alone, not on anyone else - and certainly not the judge.

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That example was my understanding, glad to be corrected.

> At any rate, the point is that if someone who has been charged - just charged, not convicted

Agree completely. But if we are not making some estimation of the possibility of guilt and possible behavior by a guilty party given freedom then what is the point of ever denying bail? We deny bail because they might be guilty, and if they are it might not be safe for them to be released. We're not saying that they are guilty, but conceding that it might be negligent to allow them freedom before determining their guilt.

> the fault lies only on that person and that person alone

I'm certainly not trying to absolve the perpetrator, but certainly from an ethical point of view at least (IANAL) you have to admit the possibility of negligence.

This is not the point of bail. Bail is not some sort of speculative conviction that you can pay to avoid. The only purpose of bail is to hold somebody if they may be reasonably judged to be a flight risk.

Bail is, btw, almost certainly unconstitutional and should be abolished. It's one of those things that slipped through the cracks and was kind of grandfathered in. The Supreme Court has ruled again and again that in a system where persons are presumed innocent any sort of pre-conviction punishment by the state (fines, excessive jail, forced hospitalization) is not allowed. Somehow though the judge has the power to declare somebody a flight risk and order them held until trial. This is a little mitigated by the right to a speedy trial but is still likely wrong.

> Bail is, btw, almost certainly unconstitutional and should be abolished

Had the framers wanted to prohibit bail, the 8th Amendment would be one word shorter; as it is, only excessive bail is unconstitutional.

Yes, the Constitution implicitly permits bail by prohibiting excessive bail. (That's at least one way to read it.) The courts have also asserted that bail is somehow "fundamental" to the system of law (it's not to be questioned). Still what's not clear is (1) whether the power to deny bail is constitutional (some might think refusal of bail, in effect a bail that cannot payed at all for any amount of money is rather excessive) and (2) whether excessive should be understood as relative of the client's ability to pay. In fact Stack makes it somewhat clear that the defendant's ability to pay partially determines excessive... and yet here we are: every year millions of people go to jail because they are denied bail or they cannot pay. It should be clear that the current system where the government locks up millions of defendants because they cannot pay bail (or are refused jail) is not what was intended by the framers. Abolishing bail or ensuring that bail is always and everywhere affordable and reasonable is the way to go. A startup like Promise offers a perhaps much-needed band-aid but the entire system is broken and should be revisited.

> Promise offers a perhaps much-needed band-aid but the entire system is broken and should be revisited.

That's actually my biggest fear with private services like Promise — a new for-profit bandaid both reduces the pressure to reform the underlying system just as it is gathering real steam, and creates a new set of parties with a profit interest in preserving the underlying system.

Thank you for your thoughts. I wanted to share a couple recent reference points on the topic of bail/pretrial detention. Here is a cite to a recent CA case that came out of SF and discusses what judges must consider to set bail: http://caselaw.findlaw.com/ca-court-of-appeal/1886990.html. In CA, we also have Senate Bill 10 that is pending and deals with changes to the pretrial release system: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml...

> Agree completely. But if we are not making some estimation of the possibility of guilt and possible behavior by a guilty party given freedom then what is the point of ever denying bail?

Bail, or it's denial, is principally about the risk of the accused not showing up to court, and thereby escaping legal process; the type of crime is also considered, but again that's mostly (but not entirely) because it factors into risk to the process (both motivation to avoid process and risk of violence directed at witnesses, etc.)

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