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A question of bail

The young assistant district attorney was grinning mischievously as she spotted the judge in the courthouse corridor. ''Remember that fellow whose bail you lowered last week?'' she asked, and before the judge could reply added: ''Well, he's skipped.''

Win some, lose some, the judge thought, grimacing silently; but why don't they ever sound so happy about the ones who do show up?

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Next to sentencing, decisions about bail are the toughest any judge has to make. In some ways bail questions are even more difficult. At least during the sentencing process a judge has the aid of thorough pre-sentence workups by the probation department; argument (and often written presentations) by attorneys; and the insight gained from hearing not just the prosecution's version but the actual evidence or the defendant's statement when pleading guilty.

Bail in its basic form is a cash-backed promise by the defendant to appear at all future court appointments. The right to have bail in an amount that is not ''excessive'' is guaranteed by every constitution, state and federal.

Setting bail would be easy if all a judge had to decide was the lowest amount of personal collateral that would ensure the defendant's appearance. Of course, the judge might be uncomfortably aware that the system is inherently wealth-specific because it allows pre-trial freedom only to those able to pay for it.

The real difficulty with the bailing process these days is that we expect it to act as something more than an attendance-guarantor. We want the judge setting bail to make sure, not simply that the defendant will be in court, but that in the meantime he will not endanger the public.

Even the basic attendance-guarantee bail concept has to take into account a defendant's prior record, the seriousness of his present charges, and the apparent strength of the government's evidence. But the judge considers these factors only because if the case involves a serious crime, if the prosecution appears to have a good chance of conviction, and if the defendant is not a newcomer to court or prison, then he faces the probability of a substantial sentence.

Thus one tends to feel that the likelihood of flight increases in direct proportion to the certainty and length of the prospective sentence. This is true even though evidence exists suggesting that other factors such as roots in the community may serve as effective attendance-guarantees whatever the relative certainty of incarceration.

When, however, we begin to use bail as a public-safety measure, judges do (or should) encounter serious moral problems.

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Consider a typical defendant standing in court accused of armed robbery. Unemployed, with a sporadic work history all in minimum-wage jobs, he has been convicted twice for armed robbery, twice for burglary, and twice for possessing cocaine.

On these facts, anyone could reasonably conclude that this man supports an expensive drug habit by holdups and housebreaks. One would feel safe in predicting that this latest arrest, by itself, will not change the current pattern. Should the judge set an affordable bail, the defendant will probably resume his criminal career immediately.

Now, the prosecution case is weak. It rests upon identification by an aged, frightened, uncertain witness who saw his assailant for a few seconds - in poor light.

A judge who might wish, in the public interest, to set bail high enough to assure this defendant's incarceration would have to ignore the idea that we presume a defendant's innocence. He would also have to disregard the thinness of the prosecutor's evidence.

He would have to decide that the defendant is guilty or, if presumed innocent , such a bad fellow that society would be better off if he stayed behind bars for a while.

We call this judicial conduct ''preventive detention.'' It sounds like just what the public needs to keep streets safe and homes inviolate.

The trouble is, incarceration without trial can become a retaliatory club against whatever conduct a government may not happen to like. Just ask the Soviets or the Poles. Once we begin using bail for any purpose but assuring attendance, we start down a road that ends in barbed wire.

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