It was sold as the usual lie on the twitters, a rosy tale of peaceful fighters for justice and a mean, bad judge.
They surely don’t appear to be rioting in the image, but then, the image was after the arrest. That doesn’t tell the story, any more than how wonderful and brave these warriors for equity may be. Assuming they are, that doesn’t mean they get to riot and destroy any more than miserable and cowardly folks.
Lancaster County District Attorney Heather Adams has leveled heavy charges against the demonstrators and Judge Bruce Roth set bail for each of the accused at $1 million each on Monday night.
— Lancaster Stands Up (@lancstandsup) September 15, 2020
But the other half of the story is the $1 million dollar bail set by Judge Bruce Roth. Perhaps he takes the offenses seriously. Perhaps he has reason to doubt they will return to court as required. Perhaps he thinks these defendants will be back on the streets engaging in criminal conduct again. Perhaps. But the judge’s “perhaps” smacks head first into the Eighth Amendment.
Excessive bail shall not be required….
The charges against them are not petty.
The protesters are each charged with felony arson, riot and vandalism charges, among other protest-related charges. At least six of the eight people arrested Monday morning had bail set at $1 million by Magisterial District Judge Bruce Roth on Monday night, according to court documents.
But setting bail at $1 million is essentially detention, as it’s impossible bail to make. As serious as the charges may be, pretrial detention is not the place for incarceration as punishment. That only comes after conviction.
Pennsylvania’s Lt. Governor, John Fetterman, condemned the bail, which wasn’t requested by the police, as unconstitutional.
“It’s self-evidently unconstitutional,” Fetterman said. “Whatever the merit of the underlying charges, what is absolutely indefensible is a million dollar bail for those charges.”
While the question of what constitutes “excessive bail” isn’t the amount you, or I, or Fetterman, would fix, and “self-evidently” isn’t the bar, but whether the bail is greater than the amount needed to satisfy the governmental interest in assuring the defendant’s return to court and compliance with the terms of release, and no more. Detention, or effective detention, can only be justified when no amount of bail can assure the safety of the community and compliance with the requirement to return to court.
The million dollar bail in this instance grossly exceeds an amount reasonably calculated to serve the legitimate purposes. Judge Roth went hog wild. No matter how furious he may be that this happened in his neck of the woods, he doesn’t get to take it out on the defendants by setting excessive bail.
The remedy is to move to reduce the bail and, if denied, bring a writ to have bail reviewed by a different court. While that may happen here, it may not be all that’s going to happen.
— John Rossomando (@John_Rossomando) September 16, 2020
Was Judge Roth wrong, very wrong, to set such astronomical bail in this case? Sure, and the legal system provides a mechanism to address it. It’s been suggested that his intentional setting of excessive bail could subject him to prosecution for a civil rights violation under 18 U.S.C. §242, but that’s inapplicable at best and fantastical at worst.
Is the claim true that Antifa is going to go after Judge Roth at home, make his life and that of his neighbors unbearable? Beats me. This may be a complete fabrication for all I know and there are no plans to do anything of the sort. Sadly, manufacturing outrageous actions and reactions to blame the other tribe has become common, and makes it far too easy to create an outrage to pin on one’s adversaries. Until it happens, it hasn’t happened. So why raise it?
Protests, and worse, have been used as weapons against mayors, police and others. Whether one prefers to claim it’s a legitimate means to seek redress of grievances or terrorist tactics for a small minority to impose fear and misery to get elected public officials to capitulate to their demands is an open question. It’s one thing to express one’s grievances to an elected official, and another to engage in conduct designed to target them with harm, damage and misery lest they acquiesce.
But should this move from mayors to judges? If a judge does something wrong, is it a legitimate means of redress to impose punishment on the judge? The legal system has mechanisms to address errors by judges, whether inadvertent or, as here, deliberate. This isn’t the first time a judge has issued a ruling that a group finds terrible. Remember Aaron Persky?
What would be the impact of targeting a judge in this way? Would judges be outraged by this extrajudicial use of force to punish them for a decision that some group despises? Does it matter that the judge was wrong? Would the mob make that distinction the next time, or would any ruling with which it disagrees serve as cause to go after judges at home, at a restaurant, at their children’s school, if this proves effective?
Being a judge is a curious job, having once been the crown on a legal career to now being a alternative career path for lawyers, with judges being younger, and sitting longer, than ever before. The pay is lousy, but people laugh at your jokes. The job is mostly boring and tedious, but the decisions can impact a great many people. For some, this is a dream job. For others, a nightmare position.
Add to that the potential that a decision, whether made in anger, even though it should never happen, or merely contrary to the will of one mob or another, will end up resulting in being targeted for nightly attack, and possibly a deranged person with a gun at the door.
The independence of the judiciary is a foundational element of the legal system, despite so many trying to tie judges to their patrons and argue that judges’ former jobs, racial and gender characteristics should dictate the decisions they make. The former is simplisitic nonsense, but people believe it to be real and so they pound it into the heads of the clueless as the cure for a legal system that fails to produce popular outcomes.
But adding protests and rioting, physically going after judges where they live, is the worst way to influence the legal system. Judge Roth’s bail was excessive, and should be reduced upon motion. That doesn’t mean it will be set at an amount they can make, but at least the amount must be reasonable for its legitimate purpose. Hopefully, that will end this insanity and the outraged will move on to other causes. But making Judge Roth pay by rioting at his house is the worst way to address his bad decision. Grieve him all you want, but leave his home alone.