The “person of interest” in the Lakewood, WA, police assassination case (a.k.a. suspect) was a man with a long record of violent crimes and repeated releases into the public despite his multiple convictions. He was also free on bail after being charged with several crimes, including child rape.

This case stands in sharp contrast with the case of Elaine Clermont, the Nevada mother, charged with and convicted of kidnapping a child.

So, how did this guy get bail?

I used to think that bail was available only for nonviolent crimes when the accused was not “a flight risk.” Then I served on a jury in the Cook County Criminal Courthouse (Chicago). After that I understood that in the county where I live violent offenders are let loose all the time, and even undocumented aliens who can easily return to their “country of origin” are given bail all the time, despite being more than a flight risk—that is, despite being sure to flee.

Bail Bondsmen

The big part of the problem, it seems to me, is the bail-bond system.

By rights granted in the Constitution, every accused person is entitled to be released until convicted (“habeas corpus”)—unless the accused is charged with a Class A Felony (in other words, a serious crime). When an arrestee goes free on bail, though, the state is entitled to a pledge of security from the accused in the form of bail.

The amount of the bail bond seems to be entirely at the discretion of the judge who presides over the arraignment. If New York City’s bail guidelines are typical, the amount of bail required is very little and need not be cash—the judge usually must accept property as bail (I assume vehicles are typical of such property).

Bail for misdemeanors and first-offenders can be very low. Any judge who imposes a high bail in such cases has to permit the arrestee’s lawyer to justify the bail in a “bail sufficiency hearing.” Given the overcrowding of the courts, few judges are willing to spend their time in such hearings and instead require low bail.

Further shifting the risk toward the citizens of the community and off the suspect’s shoulders is the institution of the bail-bondsman: an insurance salesmen for criminals. Apparently, tradition has set a precedent that no matter what bail the judge requires, a third party can post the bail for the suspected offender (a bail bondsman). The bail bondsman loans the suspect the amount of the bail, for a fee of 10% of the total.

Sidebar: Doesn’t the bail-bondsmen in effect make the whole concept of bail moot? What I mean is—the bail system is supposed to reduce the risk that a freed suspect will skip town. The bail bondsman makes it easy for most suspects to skip town. In fact, if a criminal knows the odds of acquittal in an American court, he ought to skip town at the cost of a few hundred dollars rather than stand trial and be convicted.

Also, tradition has apparently set bail for felonies within a range of only a few thousand dollars up to the mid-five figures (higher bail is very rare). That means, though, that at most an accused person needs to pay the bail bondsman only a few hundred dollars up to a few thousand (about the value of the average person’s car). (BTW: I assume this tradition started when a dollar was worth a dollar).

Free as a Bird—Child Rapists

During the trial in Cook County in which I was a juror, the defendant was free on bail even though he was charged with a Class A Felony (aggravated kidnapping) and other violent felonies, which included the aggravated sexual assault of a 13 year old girl (in IL not a “child”). He jumped bail during the trial, and as far as I know he is still free.

In the Washington state case, the suspect was charged only with second-degree child rape—not a Class A Felony, I suppose. So Washington has a prosecutor to thank for the man’s shooting spree, just as Nevada has a prosecutor to thank for the trumped up charge of kidnapping against Elaine Clermont.

In either case, it’s hard to understand why the judge let these men go free on bail.

An Obvious Solution

• Crimes against children should be Class A Felonies that are ineligible for bail. How hard would it be for state legislatures to enact such a statute? (What in the world is “second degree child rape”? Unintentional? With consent? It boggles the mind.)
• Children should be defined by law as anyone under 17 or 18. For example, teenage gangbangers who commit violence against other teenage gangbangers would not be eligible for bail.
• Bail bondsmen should be required to qualify their clients both financially and as “risks,” just the way a legitimate insurance company does. (Insurance is all about actuarial risk tables. Clearly bail bondsmen are not qualifying their clients at all, but rather are paying bonds for everyone who asks them.)
• Bail bondsmen should be required to charge fees commensurate with the risks: the criteria should be the seriousness of the charges, the suspect’s prior arrest and conviction record, the potential sentence if convicted, and the flight risk. In other words, some of their clients should be asked to pay less than 10% and many of their clients should have to pay far more than 10%.