Good call: Bail was set for the parents but denied to the alleged shooter.
Good call: Bail was set for the parents but denied to the alleged shooter.
W e have been discussing the mostly manufactured controversy about cash bail — specifically, the progressive narrative that it “criminalizes poverty” and is, of course, an iteration of our indelible systemic racism. I’ve recently written about it here and here, and I think it would be useful to take note of how bail works in Michigan, using last week’s mass shooting at Oxford High School for that purpose.
For context, recall the situation in Waukesha, Wis., where Darrell Brooks allegedly (we have to say “allegedly” at this point) killed six people and seriously injured dozens of others by ramming his speeding SUV into them. As I’ve explained, though the federal Constitution does not require bail to be set, it requires that, if bail is set, it not be excessive. Wisconsin’s law, however, does mandate the setting of bail. Consequently, the state indulges a charade, in which, when common sense says a person is too dangerous to be released on bail, bail is nevertheless set, but at an unrealistically high amount — i.e., an excessive amount — that the accused cannot make. In Brooks’s case, after he drove his SUV into the Waukesha Christmas parade, his bail was set at $5 million. (The reason he was out of prison and free to drive in the first place is that he had been set free in November on outrageously low bail despite two pending violent felony cases in Milwaukee and a Nevada arrest warrant for flouting sex-offender restrictions.) Now, if Brooks were to scrape together his new bail of $5 million, you can bet Wisconsin authorities would raise it to $10 million or whatever it took to keep him detained.
The law is more sensible in Michigan.
There, an arrested person is generally entitled to have bail set, but there are exceptions. If a defendant is charged with murder or treason, the court need not set bail. If the defendant is charged with a violent felony, the court need not set bail if (a) the defendant, at the time of the violent felony, was on bail, probation, or parole because of another violent felony; (b) the defendant has been convicted of two prior violent felonies in the past 15 years; or (c) the violent felony the defendant has been charged with is criminal sexual assault, armed robbery, or kidnapping. In categories (b) and (c), bail may be denied only if the court finds that (1) there is strong evidence that the defendant is guilty of the violent crime charged, and (2) the defendant is unable to show by clear and convincing evidence that he would neither flee nor pose a danger to any person if released.
Michigan’s standard is similar to federal bail law, which (as I outlined in the above-linked columns) enables judges to deny bail based on the risk of flight or danger to the community posed by the accused. This eliminates the need to engage in the artifice of setting unreasonably high bail. Requiring bail to be set in cases where it should simply be denied, as Wisconsin does, contravenes the Eighth Amendment command (which probably applies to the states) that bail not be set at an excessive level. Worse, it plays into the divisive progressive narrative that cash bail penalizes poverty in a racially invidious manner.
We can see how Michigan’s bail law worked in the Oxford High School shooting case. For Ethan Crumbley, who is charged with four counts of intentional murder (among other violent-crime offenses), bail was simply and properly denied. This compares favorably to the Waukesha situation, in which Brooks’s bail was nominally “set,” but at an absurdly high level to make sure he couldn’t scrape it together.
As for the Crumbley parents, bail was set at $500,000 for each of them, which Michigan law will enable them to make by posting a fraction of that amount in a bond (a 10 percent personal deposit bond, or a 25 percent bond posted by court-approved sureties). The setting of bail was proper under Michigan law since the parents are not accused of committing violent acts but of negligently abetting them.
To my mind, the dollar amount of bail set is too high. The judge who set bail was swayed by prosecutors’ arguments that the parents are a flight risk. As I discussed in a column on Monday, I believe that argument is overstated, though it is colorable. I think the judge should have weighed against the prosecutors’ arguments not only the considerable reasons to believe that the parents had no intention of fleeing but the even stronger contention that the case is weak and could be thrown out prior to trial as legally untenable.
On the latter score, it is not a crime in Michigan to allow a minor supervised access to a firearm, nor is it a state crime for adults to omit precautions to prevent access by minors to firearms in their home. Even though other states have enacted such “child access prevention (CAP)” laws, Michigan’s legislature has declined to do so. And even though the parents acted irresponsibly, that does not mean it was foreseeable to them that their son would use the gun on fellow students, and that they willfully ignored such a risk.
All of that, of course, will be sorted out as the criminal prosecutions go forward. For present purposes, though, it is worth observing that the bail system worked well in Michigan. Bail was denied to the alleged shooter, as it should have been. Bail was set for the parents, as it should have been. And regardless of whether I am right or wrong about the parents’ bail being set too high, the amount was not objectively unreasonable in a case where there is some concern about flight risk and the parents could face up to 60 years’ imprisonment (15 years on each involuntary manslaughter count).
More to the point, the cash-bail set was not excessive in constitutional terms, and the race of the parents (who happen to be white) obviously had no bearing on the matter — just as it played no role in the pretrial detention ordered for the shooter (who also happens to be white).