Slick but sketchy “emergency” rule change keeps Alan Keyes in jail until after Obama’s Notre Dame speech. (Updated)
Here’s the chronology: Alan Keyes and others were arrested a week or so ago for committing misdemeanor trespassing on Notre Dame’s campus while protesting Obama’s upcoming commencement speech on Sunday. They promptly bonded out of jail by posting bond in an amount established by the courts’ presumptive bond schedule. On Thursday, judges of the St. Joseph County Superior Court, Circuit Court and Probate Court signed, but did not announce, a new emergency local rule, under which, according to the South Bend Tribune, “individuals arrested for the second time on a misdemeanor count can no longer bond out. Those individuals must remain in jail until a hearing before a judge. The judge will review the case and set a new bond, which may be higher than the presumptive bond.” The order signed by the judges is here. On Friday, Keyes and 20 others were arrested for again trespassing on Notre Dame’s property. On Friday afternoon, after these arrests, the new rule was announced. Presumably, no judge was available to hold a hearing Friday afternoon to set the bond for those protesters who had been arrested for a second time. As a result, Keyes et al. will sit in jail until at least after Obama’s speech on Sunday.
A couple things really bother me about this move. First, according to the Indiana Supreme Court, “[t]he purpose of bail is ‘to ensure the presence of the accused when required without the hardship of incarceration before guilt has been proved and while the presumption of innocence is to be given effect.'” Under Indiana Code section 35-33-8-1 and 35-33-8-4, the purpose of bail can also be to ensure the physical safety of another person or the safety of the community, if there is clear and convincing evidence that the defendant presents such a risk. The purpose is not to punish the defendant or to keep him in jail out of a concern that he may commit other misdemeanors (that do not endanger the safety of another person or of the community), as he has not yet been convicted of any crime. Indiana does have a bail revocation statute (which is not really at issue here anyway), but according to the Indiana Court of Appeals, “[t]he aim of the bail revocation statute is not crime prevention and punishment ….”
I find it hard to believe that being arrested a second time for a misdemeanor makes it so much more likely that a defendant will not show up for court (relative to facing only one misdemeanor charge) that this new rule is justified. If the judges really believed that being arrested for a second alleged misdemeanor makes the defendant a greater flight risk than if he had only been arrested for one (a dubious proposition), they could have adopted a rule simply doubling the presumptive bond for a second misdemeanor arrest.
The second problem I have with this move is the fact that the new rule was not announced until after it went into effect. It should not have gone into effect until it was announced. People are entitled to rely on the laws and rules in effect until something different is promulgated. The timing of the “emergency” rule change and of its announcement after the fact gives the appearance of a judicial purpose contrary to the established purpose of bail.
The chief judge of the St. Joseph County Superior Court insists that Notre Dame did not ask the judges for this new rule and that the new rule was not implemented to benefit Notre Dame. However, the chief judge also told the South Bend Tribune for the article linked above that it was the arrests of protesters at Notre Dame that brought the need for the “emergency” rule change into focus. The arrests were clearly the occasion for the new rule. The headline of the linked Tribune article — “Judge: New bond rule not related to Notre Dame protesters” — was therefore obviously not accurate. The new rule does make sense in that certain kinds of misdemeanors (e.g., DUI, assault), particularly if repeated while on bail for a previous offense, can implicate the physical safety of others in the community. But the misdemeanors that in fact triggered the rule change were not of this kind.
As for the underlying controversy over whether a nominally-Catholic college should honor a pro-choice politician, I agree with this guy: Grad who protested Bush address says ND should stop inviting presidents.
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