The Responsibility Business

There is an old libertarian maxim that “liberty and responsibility go hand in hand,” and it’s true. Without holding people responsible for their actions liberty falls apart – for all of us. So, as a trial court judge for 25 years, I was in the responsibility business. Now that does not at all mean that people must be mindlessly punished because, certainly, the punishment must fit the crime. But a part of that “fitting” includes deterring other people from committing criminal or even civilly wrongful conduct. Thus, for example, anyone who is involved in planning or carrying out the spate of “Smash and Grab” thefts in stores should clearly in my mind spend some time in jail after they are convicted. Responsibility, justice and deterrence call out for that result in virtually every case! In that regard I still remember my wonderful father, who was a federal court trial judge, telling me that one time he sentenced a Beverly Hills doctor to 30 days in jail in a tax fraud case. And then a couple of months later he ran into the IRS case agent who said: “Judge Gray, after you sentenced that man to his 30 days in jail you would be amazed at how many amended tax returns we received from Beverly Hills doctors.” Yes, deterrence is also a necessary ingredient in sentencing. In similar circumstances when I was presiding on a formal probation violation calendar if a defendant was found to have violated the conditions of probation I would often call that person’s case first and, once found culpable, frequently sentence that person to be taken into custody usually for a short period of time, because short times in jail are often quite successful. And then, almost inescapably, the other defendants in the courtroom would learn their lessons and take their responsibilities more seriously as well. Again deterrence works! (On the other hand, there were some occasions in which I found that people on formal probation were not only taking their responsibilities seriously they were also helping their colleagues to do the same. So in those situations it was my habit to call their cases first, explain how well they were doing, congratulate them and then come down off the bench and shake their hands. On two occasions the young male probationers were so overcome that each one broke down in tears, saying that no man had ever congratulated them for anything in their entire lives. So the same approach to responsibility also works in reverse! Mentoring, anyone?)

In addition, recently there has been lots of talk about the use of bail in our criminal justice system. On that subject, the first thing to understand is that our system should work hard not to have people punished before they are convicted. Thus our system specifies that no one shall be held in pre-trial confinement unless they are either reasonably seen, first, as a danger to other people or those people’s property or, second, as a legitimate risk not to show up for their trial. If neither of those criteria are seen as meaningful, they must not be placed into pre-trial custody. So, within reason, bail is a useful tool because it allows judges to release people from pre-trial confinement because it lessens the likelihood of imposing danger to others or for being a flight risk. Why? Because if, for example, mom puts up her house to guarantee that her adult children will make their court appearances, that certainly increases that likelihood. Similarly, if the defendant obtains bail from a licensed bail bonds company by paying them the customary ten percent of the bail in exchange for the company posting a bond, the defendants know that if they fail to appear the bondsmen have several months to find them, return them to court and get their posted bail money back. So that creates some meaningful deterrence as well. Of course, the defendant’s financial condition also should be considered in setting the amount of the bail. But bail is only one arrow in a judge’s quiver. Other arrows that can be appropriately used are releasing defendants on their own promises to appear, often subject to various terms and conditions, such as not ingesting any alcohol, not going within a mile of their alleged victims, or not leaving the jurisdiction. And then they are often ordered to wear an ankle bracelet that sends electronic messages as to their location at all times, and which also sends alarms to the police if they go where they are ordered not to or even if they cut off their bracelet. All of these things are designed to be used appropriately to keep people out of pre-trial confinement, so that they can more fully cooperate with their attorneys in preparing their defenses, keep from being fired from their jobs, missing their school classes, being taken away from their parental responsibilities or being wrongly coerced into pleading guilty to their charged offenses so that they can get “credit for time served” and get out of jail. And, parenthetically, these approaches also help to keep the taxpayers from spending so much money inappropriately to keep people in jail.

This article is a reprint of an original post published on Judge Jim Gray's site. The views expressed in it are those of the author and not necessarily the views of the Libertarian Party of Orange County.

James P. Gray is a retired judge of the Orange County Superior Court, and presently works as a private mediator and arbitrator for ADR Services, Inc. He was also the 2012 vice presidential nominee for the Libertarian Party, and can be contacted at JimPGray@sbcglobal.net, or through his website at www.JudgeJimGray.com.