Tracking Judges' Bond Decisions: Another Bad Idea

It really annoys me when an elected Democrat publicly floats an idea so dumb that it forces me to agree with the HamCo Republican Party. But that's what Todd Portune has managed to do this week.

By this time, we all know about the judge who "set" a million-dollar bond in a theft case late last week. Of course, he didn't really "set" the bond; he just refused to reduce a bond set by now-retired Judge Rosen. Most who practice criminal law understood immediately why the judge made that decision, regardless of whether they agreed with it. I suspect that HamCo Republican Party Chair Alex Triantafilou correctly captured the judge's rationale in his blog post on the topic. (The judge himself has chosen not to comment to the media. His decision not to do so is one that I respect immensely, and is a model that should likely be followed by more of our judges.)

Nonetheless, in rides Todd Portune to rescue us from million-dollar bonds, with a proposal to "track" the bonds set by our municipal court judges. Triantafilou doesn't like it because it's a new "government program." (Whatever.) The real reason that it's a bad idea is because it trashes the notion of separation of powers and an independent judiciary. Our judges need to be free to make decisions free of political pressure from the executive or legislative branches of our government. And Portune is smart enough to know that.

Portune is also smart enough to know (or at least he ought to be) that "tracking" judges' bond decisions would inevitably be a double-edged sword. If it turns out that any of the four Democratic municipal court judges set lower bonds than any any of their counterparts, is there any doubt that this fact would be plastered on every campaign ad run by a Republican challenger the next time that judge's seat is up for election? Judges who set "low" bonds would be accused of not protecting the community from dangerous criminals. And when a judge is sitting in Courtroom A of the Justice Center trying to decide what bond will satisfy a defendant's constitutional right to be free of excessive bail, s/he shouldn't be thinking about his or her next campaign.

And even though this post was initially written to criticize Portune for pandering on this issue, I can't help but point out the utter hypocrisy of Republicans when it comes to "government programs" to "track" judges' decisions in criminal cases. As you may recall, a few years ago it was the Republicans who drafted, passed, and signed into law the Feeney Amendment to the PROTECT Act. That law, which has since been found unconstitutional by the Supreme Court, required federal judges' sentencing decisions to be monitored and reported to Congress, with the aim of eliminating "below-Guidelines" (i.e., "shorter") sentences. So Republicans are all-too-eager to embrace big, new "government programs" if they think it will help them score political points (in the case of the Feeney amendment, by making them look "tough on crime").

Alex Triantafilou was a judge, and a pretty good one. He shouldn't rely on transparently silly rhetoric about the evil of government, but should simply tell it like it is: a good judge isn't a politician who decides cases based on public sentiment, and elected officials from other branches of government shouldn't pressure them to do so.