COVID-19 Is No Justification

COVID-19 Is No Justification

Our Freedoms are Constantly Under Siege

We take freedom for granted.  Some freedoms afforded to those people accused of crimes are downright unpopular. Attempts to restrict or eliminate the constitutional rights of U.S. citizens are routine. Regrettably, many government officials don’t truly believe in the freedoms guaranteed by the Constitution, are actively hostile to those freedoms, and it shows in their actions. 

Neither Democrats nor Republicans have clean hands in this regard.  Both parties have taken blameworthy steps to diminish people’s rights when accused of a crime. Sometimes, the parties even come together to try to right wrongs and create a more just system.

COVID-19 has presented us with challenges we have not handled well.

Executive Order GA-13

In a bid to limit the spread of the virus which causes COVID-19, sheriffs, judges, defense lawyers, prosecutors, and pretty much everyone involved tried to release as many people as they could from county jails. They know jails and prisons are known to be hot spots for infectious disease and were trying to do their part to help. These people live in the very same communities where the detainees would be released.

In a panicked and ill-conceived response to these efforts, Texas Governor Greg Abbott issued an executive order on March 29, 2020, directed largely to judges. The order prohibited judges from releasing so-called “violent” offenders on personal bonds to protect the public during the COVID-19 pandemic response.

Clearly, Abbott is under the impression none of these officials are mindful of relevant issues regarding bail, something they deal with daily. By issuing the order, he demonstrated his belief judges were reckless and irresponsible. Not only is he wrong, I believe he overstepped his authority.

Abbott’s claimed purpose in the order for the general safety of Texans rings hollow.  He claimed certain people being released from jail constituted an immediate danger, as well as the draining of limited resources necessary to respond to the imagined havoc such inherently dangerous people would cause.  I acknowledge people accused of violent crimes may well be guilty, in fact, and they may be dangerous, but that is only part of the story. Even if we were to assume the best of intentions on Abbott’s behalf, his order was a blatant and unjustifiable attack on freedoms. 

Categorical, blanket assumptions must be made to consider the orders’ claims true and compelling.  I understand and acknowledge COVID-19 measures should be taken, but they should be meaningful and directly related to the disaster, not assumptions, and certainly not demonstrably false assumptions.

Assumptions are Not Reasoning

The most obvious assumption directly contradicts a fundamental concept of justice: the presumption of innocence.  It’s an unpopular freedom we enjoy, and its existence upsets  people across the political spectrum.  It’s also fundamental to freedom.  Every day, people accused of violent crimes are released from jail because they have a Constitutional right to bail.  The risk of guilty people being freed pending trial to determine the actual facts, rather than solely an accusation, has existed since the foundation of our country and has not changed because of the COVID-19 crisis.

Abbott’s order presumes the guilt of everyone currently accused of a violent crime and treats them as if they were already proven guilty.  I understand the presumption of innocence is a legal standard, not necessarily the truth, but it is one important way freedom is protected. 

The government has yet to prove its case, and the defense has had absolutely no opportunity to contest the accusation.  Presuming guilt based upon bare probable cause is not only illegal, it’s anathema to the concept of justice in the United States. This alone makes the order overreaching and arbitrarily harmful, in my view, but there is more reason to consider his order demonstrably wrong and hostile to freedom.

The order also falsely assumes a person who has EVER committed a single violent act is an actively violent person now.  A person accused of a murder committed a day before the issuance of the order is no more dangerous right now than a guy who had a drunken fistfight at a bar 30 years ago.  I won’t bother detailing the lack of reasoning in that assumption.

Abbott’s order contained something even more insidious.  It prohibited only personal recognizance bonds, which do not require money in exchange for release. 

Hurting Poor People Is What It Does

Violent people who have money for bail are unaffected by Abbott’s order.  A violent person with money is no less violent because he/she has money.

ONLY POOR PEOPLE unable to afford to pay bail are affected.  It shouldn’t have to be said; sadly, it must still be said because even the sitting Governor of Texas, a lawyer in training, doesn’t seem to understand: holding people in jail solely because they are poor and allowing others with money to leave is wrong, illegal, and morally reprehensible. Being poor is not a just cause for punishment.  This is a non-negotiable foundation of freedom. 

Requiring poor people to produce money they don’t have as a condition of release while wealthy people can be released for the same accused conduct is flatly wrong.  This is a longstanding problem, not the creation of Abbott, but Abbott’s order twisted the knife into the wound by making it explicitly about unequal treatment based upon ability to pay.

No matter what reasons were offered by Abbott, the true effect of the order was to punish people for being poor, to deny bail based on poverty. 

Maybe The Harm Was Unintentional

If I were inclined to give the benefit of the doubt to Abbott, I’d have to assume he wasn’t aware of the actual consequences of his order.  However, Abbott is no stranger to legal concepts, and I am fairly certain he has read the Bill of Rights and the rest of the Constitution.  He is a lawyer who previously served as Attorney General of the State of Texas. That office prosecutes criminal cases and routinely deals with issues involving criminal law.  Giving the benefit of the doubt to Abbott requires a presumption he was oblivious to what he was doing.  I don’t think that’s plausible.

Even More Fundamentally Flawed?

In addition to the obvious attack on individual freedoms, as well as at least latent hostility toward poor people, Abbott’s order attacked the fundamental structure of our government. 

The executive branch is not superior to the judicial branch.  Even school children know the three branches of government are as American as apple pie, that each is separate and equal.  This basic level of understanding cannot be lost on Abbott, yet his order overreaches into the province of the judiciary.

Our Highest Court Allows It – So Far

Regrettably, our judiciary, in the form of the Texas Supreme Court, did not protect itself as an co-equal, independent branch of government. On technical grounds, the court reversed a lower court’s ruling to temporarily block GA-13.

Its ruling included the following language: “All of us in the judiciary should do what is in our power to make the court system continue to work as promised for all parties during these difficult times.”

In my opinion, the system does not work as promised for any parties at any time when the executive branch can arbitrarily have the judicial branch do its bidding.

The judiciary must not cede its power to another branch of government, nor allow incursion into its powers. This is yet another non-negotiable point.

The saga continues at this writing, and I consider it a stain on our both our legal system and our form of government.

Perhaps the Texas Supreme Court will vindicate itself when presented the case in a different way. Perhaps courageous judges will defy the order and put themselves on the line as a way to uphold their oath to support the Constitution. Perhaps a poor, innocent person trapped in jail by the order will prevail. Perhaps we’ll have to find justice in the federal courts.

Right now, though, I’m ashamed of our state’s “leadership”.  We deserve better.