New York’s progressives took a bold leap forward into woke-ville last year with some major “reforms” to the bail system, reforms that essentially eliminated cash bail for all but the worst violent offenders. While bail is not itself supposed to be a punishment, because a charged individual has not yet been convicted, and while reforms were, for the liberty-minded, well warranted, it can obviously be done wrong.

As New York has demonstrated.

The latest, a bank robber who, because he robs with notes and not weapons, is classified “non-violent” and therefore cannot be held after arraignment. So, in practical terms, he can continue to do as he does until he goes to trial for his first arrest. It took federal intervention (since banks have federal insurance, the feds can arrest bank robbers) to halt his spree.

Staten Island District Attorney Michael McMahon cuts to the heart of the matter:

[T]his case makes crystal clear why forbidding judicial discretion is a recipe for disaster.

Legislators’ excessive zeal to institute a change has taken the same form as many other failed governmental reforms, of criminal justice, of education, and elsewhere. We’ve witnessed many examples where mandatory minimums, three-strikes laws, zero-tolerance policies and other legislative mandates have resulted in terribly unjust individual outcomes. And, today, we bear witness to someone who literally cannot be stopped from robbing banks until his trial happens.

Nevertheless, and despite many other examples, NY State Assembly Speaker Carl Heastie has indicated that he has no interest in revisiting these bail reforms. We’ll see how long that lasts in the face of persistent and increasing public alarm, but we shouldn’t be surprised. Politicians love to “do things,” and later brag that they “did something,” as if the act itself is the tale of success. However, as the great man Milton Friedman reminds us,

One of the great mistakes is to judge policies and programs by their intentions rather than their results.

And, one of the great mistakes of policies such as this bail reform lies in the shifting of the balance of power that is at the heart of our tripartite system. Replacing judges’ discretion with politicians’ blanket declarations alters the legislative-executive-judicial separation of powers and duties. In telling a judge “you must not impose bail or hold without bail someone accused of Crime X,” they invite both the head-scratching cases like our bank robber and clever rules-lawyers who will actively engage in activities that the system will be helpless to immediately halt.

The legislators consider their job done when a law is passed, so their “responsibility” becomes a vague and detached one. Meanwhile, judges who want to do the right thing, to act responsibly and use discretion to ensure justice is best meted are handcuffed. Reforms, misconceived and malformed, relegate both justice and responsibility to oblivion.

Why would they do that? Why would they go so far in changing things that easily foreseeable individual problems cannot be addressed?

Because passing broad-brush laws is easy. Dealing with individual “exceptions” to the intent of broad-brush laws is difficult. The latter involves making decisions on a recurring basis. Easy-but-wrong usually trumps hard-but-correct, especially when the former feeds an activist minority that’s favored by a politician’s side of the aisle.

Taking away a judge’s (or teacher’s or administrator’s) ability to use discretion when one thinks that discretion has been misapplied may feel like it’s “doing good,” but it is just another erosion of responsibility. While some welcome having that responsibility taken away: if you are forced to apply a punishment no matter that it’s excessive, or if you are forced to release a criminal no matter that you’re sure he’ll do it again, you can’t be blamed for the bad outcome, we should want people who are willing to make the hard judgment calls in lieu of those who want a gig but not the responsibility that goes with it. While it is the legislature’s responsibility to write the laws that govern society, the only way a society can function is with some degree of discretion in the hands of those in positions of authority. Judgment and justice cannot be pre-programmed.

Peter Venetoklis

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.


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