Everyone has the right to bail in Minnesota

Recently, there was an article in the Star Tribune about the ongoing criminal cases involving victims Palagor Jobi and Anarae Schunk.  In the article, it states that "Monty and Mariana Schunk are pushing for changes to the bail and sentencing system for repeated violent offenders.  They have proposed the Anarae Schunk Repeat Violent Offender Bail Law that would deny bail to a person with two prior felony convictions, one of which was a violent crime, when that person is charged with another violent crime involving a gun or other lethal weapon.  They have also proposed an Anarae Schunk Repeat Violent Offender Prosecuting and Sentencing Law that would impose a mandatory life sentence without parole for a person convicted of a third violent crime involving a gun." 

There's much to say about both of these proposed laws, but let's start with the first proposed law for this post.  The one involving bail.  

My boss has always said that if a law is named after a person, it's probably not a good law.  And I've found that to be true.  Usually laws that are named after a person are sledgehammer solutions and are a reaction based on a particular case involving a particular set of circumstances that are terrible, but not common.  Yet, the law catches people in it that it wasn't necessarily intended to initially, because it's not a thought out and rationally debated law.  It's a law based on emotion and terrible circumstances.  

However, this proposed bail law is not only a bad idea, but it's also guaranteed to fail.  Here's why...

To start, the proposed law is guaranteed to fail because it is in direct contradiction with the Minnesota State Constitution.  Our state constitution explicitly says that "All persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evidence or the presumption great." Capital offenses are those offenses for which the death penalty may be imposed.  In Minnesota, we don't have the death penalty.  So, in essence, what the MN Constitution guarantees is that all people charged with a crime will be granted an opportunity for bail.  Therefore, in MN, it is unconstitutional to deny an accused person bail. 

A lot of people seem to not be aware of that, as I routinely see comments online about how a judge should have just denied this person or that person bail or insulting the judge's "decision" to allow the defendant to have bail.  But, the judge has no authority to deny bail and the judge has no "decision" about whether to allow a defendant bail or not--the judge must impose bail (or release the person).  The only decision the judge gets in regards to bail is the amount of bail to be imposed.  A judge has no authority to deny bail entirely to a defendant pre-trial.

Given that, in order for the Schunks proposed change to the bail system to be able to pass, it would require a constitutional amendment.  Simply making a law that denies repeat offenders bail is not going to do anything other than create a ton of habeas corpus motions being filed to get people released because of their right to bail guaranteed by the state constitution.  So, on its face, this proposed law is not a good law, as it is unconstitutional. 

Other states do allow a criminal defendant to be held without bail.  It's often heard on television shows, where the defendant is remanded into custody.  That does happen in Minnesota, but only after a conviction.  So, if a criminal defendant is convicted at trial, the court can revoke any bail or conditions of release and remand the defendant to jail until sentencing.  But, pre-trial, pre-conviction, in Minnesota, that's not allowed.  Some other states do pre-trial remand, but not all and not Minnesota. 

Beyond just the facially unconstitutional nature of the proposed law, it also is flawed because it misconstrues the purpose and intent of bail.  Bail is not supposed to be a way to keep a defendant in jail.  Bail was meant to be a way of ensuring that the defendant would not be subject to detention by the government.  Remember, the Founding Fathers had a tremendous fear of the government and of providing the government with too much power.  So, if someone is accused of a crime, the founders wanted to ensure that a person would have a way to be released from custody unless and until the state had proven its case against them.  They did not want to have people being held by the government when they had not yet proven the case against the person. 

And that's the crucial element to remember, that we as a society so often and much too easily forget--an accusation, a criminal charge, is not a conviction.  A person accused of committing a crime, who has not yet been convicted, is entitled to be presumed every bit as innocent as anyone else.  Simply because the government has accused someone of a crime does not mean they are guilty of that crime.  Probable cause, the standard needed to charge someone, is ridiculously low.  Any evidence, even evidence that would not be admissible at trial, can be used to establish probable cause and a criminal complaint can be filed. 

For example, if I had been angry enough about the divorce, I could have very easily gotten my ex-husband arrested for domestic assault.  All I would have had to do is call the police and report that he had hit me.  I could even say that he had done is the day before, not right before I called.  My report of the "assault" would be sufficient to establish probable cause, so long as the police and the prosecutor believed me.  I could fabricate a story and say that I was afraid of him because he had beaten me in the past and even though he didn't actually hit me this time, I thought he was going to because we got into a fight and he had thrown things at me.  I would just need to knock over some items in the house to corroborate my story and bam--criminal complaint could be charged.  Because my word would be enough to establish probable cause for a charge. 

It's easy enough to fabricate a story and get someone in trouble, especially in a situation such as I've just described. It's a very low threshold for probable cause.  And on that basis alone, a person can be arrested, placed in jail, and held until they can post bail.  In my example, everything I would have told the police would have been a complete lie.  My ex-husband was never abusive, never laid a hand on me or even made me worried that he would.  He was always kind and gentle and caring to me, until the very end, and even then, he wasn't violent.  He was just a jerk.  So, in my example, a perfectly innocent person could be falsely accused and could be held in jail on my complete and total lies. 

It's crucial to remember that probable cause is extremely easy for the state to reach.  It requires very little "evidence."  It can be based on inadmissible evidence that a jury would never hear.  And that is why we have bail--because otherwise people's lives could be completely ruined on almost no evidence.

It should bother everyone that innocent people are put in jail and are kept there.  Bail at least allows someone an option of being released, although oftentimes, for my clients, they end up sitting in jail the whole time because they are poor.  But that's a rant for a different day.  Bail at least allows a person who isn't convicted of the crime they are accused of to be able to be released and return to their family, their school, their job, whatever. 

Certainly, anyone can understand the Schunk family's reaction and the grief and loss they are suffering at the loss of their daughter. My heart does go out to them.  They have lost their daughter in a horrible, tragic way and no one should ever have to deal with that. And the person or people who are responsible for the death of their daughter should be held responsible for her death. 

But, the law they are proposing is not only wrong because it misses the mark on the purpose of bail by trying to keep accused people--not convicted, just accused people--in jail, but it's also unconstitutional under our state constitution.