Don't insult me, which you do twice in this email and have done several times before in messages that I have ignored for that reason. If you do it again, I'll ignore you foreover. The legal issue of due process you have addressed implicitly: that imprisonment without trial, if it's not legally punishment, comports with due process. A writ of habeas corpus, wgich is presumably what you refer too in mentioning Magna Carta (it doesn't take a definite article), addressed to a pretrial detainee on the grounds that the state has no right to deny him bail, would fail. And should do so. Neither of us knows what the Calif statute actually says, since we only heard it paraphrased by some who is himself without legal training. Your idea that a blanket statute denying bail to everyone charged with petty theft who has a prior violates due due process because it should be an individualized determination is at least colorable, although I haven't researched the question. From a legal point of view, however, pretrial deterntion is never punishment, since the law says a pretrial detainee is presumed innocent. Your characterization of the predicament is therefore legally inaccurate. Still, the statute is disturbing on due process grounds if it is accurately described, and might be effectively challenged. Btw, I'm an extremist civil libertarian, but not a civil rights lawyer by trade, although I know US civil rights law very well.
jks
>From: billbartlett at dodo.com.au
>Reply-To: lbo-talk at lists.panix.com
>To: lbo-talk at lists.panix.com
>Subject: Re: Cop Watching is Illegal
>Date: Mon, 15 Jul 2002 10:19:03 -0700
>
>Justin Schwartz wrote:
>
> >>Take the instance of bail. _Any bail at all_ is impossibly large for
> >>many.
> >
> >And yet what does one do? I am opposed to carcereal policies. But some
>people should be kept off the streets, and while (what Bill doesn't grasp)
>pretrial detention isn't legally punishment,
>
>Firstly, I didn't say it was. I merely said that refusing bail without any
>cause, as California apparently does, involves imprisonment without trial.
>It was you who got confused and thought the issue was whether this was
>punishment in a legal technical sense.
>
>Pre-trial detention is necessary in some instances, few people would deny
>that. Some people represent an unacceptable risk, either to the public,
>potential witnesses, or simply a flight risk. Most people accused of petty
>theft would not fit into any of these categories, unless they face
>Draconian penalties.
>
>But in any case, blanket refusal of bail for those accused of petty theft
>does amount to punishment without trial, whatever the legal niceties might
>be. Simply because, in most instances, the time they will spend in jail
>awaiting trial is probably the same as the sentence they can expect if they
>are found guilty.
>
>The issue isn't whether they will eventually get their day in court, the
>issue is that their day in court cannot have any bearing on the outcome.
>Since the punishment has already been meted out by that time. In fact of
>course, the police don't have to waste the court's time at all, they might
>simply drop the charges just before the trial date.
>
>Such a law gives the police and prosecutors total power to arbitrarily
>imprison anyone they want, prior to, if not entirely without any recourse
>to the courts. They merely have to file a trumped up charge, based on
>evidence that they know will never be challenged in court, because they
>control whether it can ever get into court. Bob's your uncle - you're
>locked away at their pleasure.
>
>This is the kind of arbitrary power that the Magna Carta deprived princes
>of, yet California legislators have apparently been able to give the power
>to petty officials.
>
>It is tragic (and perhaps significant) that someone claiming to be a civil
>rights lawyer can't seem to grasp that.
>
>Bill Bartlett
>Bracknell Tas
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