2nd Circ.'s Approach To Bail Is Backward

By Alexander Klein | August 4, 2019, 8:02 PM EDT

Alexander Klein
Alexander Klein
Suppose a person awaiting a criminal trial could take a pill. And the pill has magic powers. Anyone who takes this pill becomes physically incapable of missing any future court appearances. Then suppose we had a federal law that required courts to release all criminal defendants on bail — to not lock them up pending trial — whenever the defendant posed no flight risk.

By definition, bail would be required for anyone who took the magic pill. But here is the twist: what if the pill were very expensive — would that fact alone allow a court to jail a pill-user posing no flight risk?

This is a science fiction gloss on very real stakes that were adjudicated recently in the United State Court of Appeals for the Second Circuit. In United States v. Boustani, prosecutors wanted to jail a criminal defendant pretrial based upon the notion that he was a flight-risk. In response, the defendant offered to buy a magic pill — to pay for private armed guards to ensure he never left his home except to go to and from court.

Yet in its decision on Aug. 1, the Second Circuit denied bail — forcing pretrial jail — because the armed-guard solution to flight-risk would have been unavailable to a defendant of lesser means.

The court's impulse to avoid a "two-tiered bail system" depending upon a defendant's wealth is obviously laudable. But the solution in Boustani attacks the disease by killing the patient.

First, the way to fix the "two-tiered" bail system is to make bail more accessible to everyone — not less. For that very reason, a fight is now raging across the country about eliminating "cash bail." Cash bail poses the same types of problems as private guards do, after all: It is available to people of means, less available to others and thus yields outcomes where people are forced to await trial from a cell on Riker's Island simply because they are poor. The eliminate-cash-bail movement aims to help that poor person get off Riker's, not to give him more company there.

Second, Boustani contravenes the clear letter of the Bail Reform Act. Under the law, generally, federal courts are required to grant bail to any defendant unless the courts cannot "reasonably assure the appearance of the person [in court]" or if release would threaten "the safety of any other person or the community."

Boustani was not decided based upon the danger clause — only upon the flight clause — and yet the Bail Reform Act addresses this scenario: If courts find that a defendant poses a risk of flight, they still must release him on bail "subject to the least restrictive further condition, or combination of conditions, that ... will reasonably assure the appearance of the person [in court]."

This "least restrictive condition" was the one Boustani posed. The armed guards — the magic pill option — would have virtually guaranteed his appearances in court. The case thus creates a jarring outcome: the jailing of a criminal suspect who poses no risk of flight, no danger to his community and whose access to the Bail Reform Act is denied because of his wealth.

Third, apply the Boustani reasoning to other contexts and try not to shudder. Yes, money makes it easier for people to make bail. It also makes it easier for them to retain a private attorney, a private investigator, expert witnesses and any other resources they can muster for their defense at trial. Suppose these resources make it more likely to show reasonable doubts about someone's guilt. Or suppose they help clear the name of someone innocently accused of a crime. In the name of one-tier, should those resources be outlawed too?

With the aim of rising all boats rather than sinking them, two ideas make a lot more sense than the solution fashioned in the Court of Appeals. One solution — a modest one — is to decide cases like Boustani based upon whether private guard proposals are trustworthy in individual cases.

For instance, in some cases, a court might reasonably fear guard corruption: If a defendant were willing to pay a guard to ensure his home-confinement and presence in court, perhaps the guard would accept twice — or fifty times — as much to let him flee. Or perhaps a court might fear guard impotence: A set of guards could be assigned to ensure a defendant's home confinement, but the home itself could be a massive estate with potentially hidden escape routes.

Through a narrowly tailored case-by-case analysis, courts could decide whether a defendant's risk of flight remained — and that bail was thus inappropriate under the Bail Reform Act despite the guards. That would be far preferable to the Boustani approach, which, at least on its face, treats all guard-proposals the same way, eschewing the laser beam in favor of the hammer.

The other solution is more bold. As a matter of legislative policy, a supplement to the Bail Reform Act could account for the two-tiered "private armed guard" problem explicitly: Any person seeking to make bail, who seeks to mitigate flight-risk by assuming home detention with private armed guards, could be required to donate a heavy surcharge.

That surcharge would then go into a fund reserved for criminal defendants whose net assets fall below a certain threshold — to be available for those defendants, too, to put together their own home-detention-guard bail packages. This outcome — give a guard to get a guard — would make bail more broadly available across the economic spectrum.

In the process, it would reduce the scourge of jailing people before they have been convicted of any crimes; it would decrease the incidence of flight-risk; it would diminish the burdens on overcrowded jails; and it would mitigate the "two-tiered" problem by making each tier taller — not shorter.

Boustani identifies a tragic problem in our criminal justice system, but, lamentably, gets the solution to that problem exactly backward.

Alexander R. Klein is head of the commercial litigation group at Barket Epstein Kearon Aldea & LoTurco LLP.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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