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Was the Judge's Decision to Free Michael Jackson on $3 Million Bail the Right Call?
The Problems and Virtues of Bail


Wednesday, Jan. 21, 2004

Why is Michael Jackson free on $3 million bail? The singer, who was arraigned last week in Los Angeles on multiple felony charges involving sexual misconduct with a child, has surrendered his passport. But he is still free to go to Neverland, Disneyland, or wherever else in the lower forty-eight he spends his time when on earth.

The point of bail seems simple: to ensure the defendant will show up at court. Bail is supposed to be set at an amount high enough that the defendant cannot afford to forfeit the money by failing to show up.

Michael Jackson's case is unusual, like the defendant himself. But when it comes to bail, it is typical enough to illustrate some of the problems that attend that ancient institution.

The History of Bail, and the Eighth Amendment's Bail Clause

Bail did not originally involve putting up money. In small English villages, people were "bailed" to third parties - family members or friends - who put their own liberty or property in jeopardy if they could not deliver the defendant to court on the day of trial. In small communities, where flight was difficult and hiding even harder, the system made sense.

Bail today has been updated for an urban industrial society. It involves only money, and in some states involves bondsmen who are in the business of ensuring appearances.

There are limits on the amount of money a court can require for you to post bail. The Eighth Amendment to the Constitution provides that "excessive bail shall not be required." This isn't a right to bail. But it is a guarantee that if the court chooses to set bail, it cannot be too high.

When is bail "too high"? Bail is intended to enable liberty, not prevent it. So if the court sets a bond that the defendant simply cannot afford, it is, by definition, too high. The premise of money bail is that there is some amount low enough that the defendant can afford to post it, but high enough that he cannot afford to part with it. If a destitute defendant is granted the right to post bail, then that bail could be five dollars, if that's all he can afford.

Finally, it is critical to remember what bail is not. It is not intended to protect anyone: if a defendant is deemed too dangerous to be at liberty pending trial, then every jurisdiction allows a court to keep the defendant locked up on that basis until trial. Truly dangerous defendants should not be released, no matter how high the bail they might post.

Second, and more importantly for present purposes, bail is not intended to hold the bad guys who pose a serious risk of flight. Some defendants will cut and run no what matter how high bail is set, and these defendants - like dangerous ones - can simply be locked up pending trial, with no chance to post bail.

The Problems with Bail

There are plenty of problems with the way money bail works, and the Michael Jackson case illustrates several of them. First and most obviously, if the defendant is not a serious risk of flight, what's the point of bail? A person's means play an important role in their ability to flee, but hardly a decisive one. People fail to show up at trial every day, but not, ordinarily, because they have fled the jurisdiction in a private plane.

Consider Michael Jackson's bail. There is nothing that suggests it was calculated to deprive him of the means to flee. In spite of his widely reported financial problems, the King of Pop sits atop a financial empire involving music publishing and production and real estate holdings, and is surrounded by family and friends who are rich in their own right. His access to ready cash is fairly close to unlimited.

There is also no reason to believe that the $3 million figure was set because, after careful thought, the court calculated that it was a sum Jackson simply could not walk away from. In the ordinary run of cases, bail amounts are often pegged to the crime charged, rather than the defendant's ability to pay. This is an administrative convenience, though it has nothing to do with the purpose of bail.

In the unusual case (such as Jackson's) when bail is more closely calibrated to a defendant's financial situation, the court's ability to get this right is still severely limited. To know exactly how much money will hold you, the court would need to know with a high degree of certainty about all the sources of money to which you have access.

But much of the information the court relies on is self-reported (so there's a big incentive for the defendant to under-report). And even quickie computer searches for accounts are unlikely to turn up all the pots of money a defendant has access to, because most people have friends and family they can turn to in a pinch.

Michael Jackson's $3 Million: Was It the Correct Amount of Bail?

Jackson, of course, is in a unique situation, and not merely because he's rich. Most of the limits on his movements have nothing to do with bail. The court took his passport, which makes leaving the country very difficult (though not, if he were really determined, impossible).

But at the end of the day, Jackson's movements are cabined largely by his own fame. He is instantly recognizable virtually anywhere on the planet; his movements are tracked by paparazzi from all over the world; and he is charged with acts that human beings everywhere find repugnant. Except among his very public family and friends, and his fans, Michael Jackson would not be a welcome guest anywhere in the world.

Of course, it is not inconceivable that Jackson would attempt to slip across a border and disappear nonetheless. But there is nothing at all about those three million bucks that will make a difference in those plans.

In the end, the $3 million bail is more an expression of institutional disapproval than anything else. While the sentiment is praiseworthy, it is merely a gesture, designed in part to relieve the judge from making the hard choices about whether to put Michael Jackson in jail.

But the court may not be able to duck that decision forever. Jackson was twenty-one minutes late to his arraignment. He blamed a crowd of fans -- a crowd that news reports suggested he himself orchestrated -- for the delay. The judge properly lectured the singer, telling him that his tardiness was an insult to the court. Even one minute's tardiness is enough to forfeit bail, as Jackson's lawyers have surely told him.

The next time Jackson is late, the court should put aside the charade of Jackson's bail. It's easy to be sure that court will start on time. It would involve Jackson's arriving at the courthouse by bus instead of SUV, and entering the courtroom through the back door, in an outfit of the state's choosing.

Barton Aronson is an attorney in Washington, D.C. Prior to that, he was a prosecutor in Washington, D.C., and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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