Posted by Administrator at 8 February 2010

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
˜Eighth Amendment, Constitution of the United States˜

Today’s hearing in which Michael Jackson’s doctor, Conrad Murray, entered a plea of not guilty to involuntary manslaughter charges and bail was set at $75,000, three times the usual bail for an involuntary manslaughter charge, begs a comparison to San Bernardino County’s own high-profile prosecutions. Those, of course, are the Jim Erwin and Bill Postmus criminal cases.

Former Assessor Bill Postmus was forced to post $100,000 bail bond for white collar crimes and drug charges. Former Assistant Assessor Jim Erwin’s bail was set at $220,000 for Fair Political Practices Commission violations. Neither man caused physical harm or death to anyone. So why such a difference between bails in San Bernardino and Los Angeles counties?

In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held that the only limitation imposed by the bail clause is that “the government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.” Bail is “excessive” in violation of the Eighth Amendment when it is set at a figure higher than an amount reasonably calculated to ensure the asserted governmental interest. If the only asserted interest is to guarantee that the accused will stand trial and submit to sentence if found guilty, then ‘bail must be set by a court at a sum designed to ensure that goal, and no more.”

When fixing the amount of bail for a particular defendant, the court takes into consideration several factors: (1) the seriousness of the offense; (2) the WEIGHT OF EVIDENCE against the accused; (3) the nature and extent of any ties, such as family or employment, that the accused has to the community where he or she will be prosecuted; (4) the accused’s ability to pay a given amount; and (5) the likelihood that the accused will flee the jurisdiction if released.

In applying these factors, courts usually attempt to set bail for a reasonable amount. Setting bail for an unreasonable amount would unnecessarily restrict the freedom of a person who only has been accused of wrongdoing; who is presumed innocent until proven otherwise; and who is entitled to pursue a living and to support a family. At the same time, courts are aware that bail needs to be set sufficiently high to ensure that the defendant will return for trial. Defendants are less likely to flee the jurisdiction when they would forfeit large amounts of money as a result. Courts are also aware that they must protect communities from the harm presented by particularly dangerous defendants. In this regard, the U.S. Supreme Court has permitted lower courts to deny bail for defendants who would create abnormally dangerous risks to the community if released.

It’s pretty hard to argue that the bail set for either Jim Erwin or Bill Postmus was not excessive. Well it would be if we lived anywhere but in San Bernardino County. But in San Bernardino County there is yet another Constitutional Amendment that doesn’t apply to it citizens. Section 1 of the 14th Amendment of the Constitution of the United States reads (emphasis added):

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