Monday, June 14, 2004

from Slate: on Reagan's judicial legacy

from Slate: on Reagan's judicial legacy

Interesting article appearing in Slate on efects, and some causes, of reforms to the judicial system instituted under Reagan. For the mostly uninformed (like me) an interest source of information.

Consider, for example, the Bail Reform Act of 1984. Historically, bail had a single purpose: to insure that the accused return to court as required. Only genuine flight risks were jailed pending trial. By contrast, the 1984 bail statute, while paying lip service to the presumption of innocence, allows incarceration on a judicial finding that the defendant is dangerous. For the first time during peace, preventive detention—embodying the long-discredited notion that past behavior accurately predicts future conduct—became the law of the land.

Today, because of this Reagan initiative, federal prisons are filled with pretrial detainees deemed dangerous, or subject to a handful of statutory presumptions that largely result in jailing low-level drug dealers. Lengthy pretrial detentions of a year or more are not uncommon.

While I am not sure how strongly I agree with the statement that "the long-discredited notion that past behavior accurately predicts future conduct." I have to agree that when the theory is applied indiscriminantly to people appearing before a court, seriously invalidates the presumption of innocence principle.

Obviously, this is a rather complex problem. Government is charged with keeping the peace. Citizenry demands safety at all costs. Noone, criminals themselves excluded, really has a problem with those who committed violent crimes spending some time in lock-up before the trial. However, given the propensity of the system to often chose those most likely to have committed the crime as lead suspects (for good reason) this would also, infallibly, create a population of those innocent of the actual crime who are spending time in lock-up when they most need to be getting on with their lives. One would imagine that some type of a strong feedback and incentives system would be able to fine-tune the decisions, and perhaps there is one in action already, I just would not know about it. It is also pretty clear that all such systems will incarcerate someone innocent for months before the trial, and let some guilty felon go on a final pre-trial shooting and raping spree. Here is to better minds than mine to work on the problem.


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