Jeffrey Epstein has been denied bail, and it should upset you. Oh, I know you have been told Mr. Epstein needs to be buried under the prison for the unspeakable acts he committed against children. The only thing is, while he has suffered multiple convictions in the press, he has no new ones in court.
There’s so much division in the country today. Not on this issue, however. From National Review to The New York Times, Epstein’s crimes are a foregone conclusion. The only thing left for the big teams to worry and argue about is whether the skeletons will be haunting Trump or the Clintons. United States District Judge Richard M. Berman joined that crowd on Thursday when he denied Mr. Epstein bail.
Judge Berman’s order starts right, noting: Mr. Epstein “is innocent of the Federal charges alleged against him now and until such time, if it comes, that a jury or the Court finds (after fair and thorough consideration of the facts and law) that he is guilty.”
Why then can’t Epstein go home unless and until he is convicted?
Bail Preserves Fundamental Rights
We have the right to be free from incarceration unless we are convicted of a crime, as his honor says, but do we have the right to bail? The Founders thought it was such a basic protection against tyranny that they included it in the Bill of Rights. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” That’s our Eighth Amendment; future Americans didn’t invent the idea, the British did.
Parliament issued the Declaration of Rights in 1689, which included a list of grievances against the King. One was “excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects.” To correct that, Parliament included “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It was so fundamental that during the 1788 ratifying convention, Patrick Henry referred to Virginia’s own bill of rights, which included bail protections, criticizing their omission from the Constitution as proposed:
“Are you not, therefore, now calling on those gentlemen who are to compose Congress, to … define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more – you depart from the genius of your country…”
Mr. Henry was right to be so cautious. What happens when people can be caged without being convicted? That’s the situation Mr. Epstein finds himself in. He is charged with a crime, and despite his every offer to meet any bail conditions, he is told that all his liberty will be revoked and he will be remanded to state custody. The power to throw a person behind bars without conviction is the hallmark of a tyrannical regime.
Censors seem to always need reminding that we don’t require protections for popular speech. It is welcome, and its speakers are safe. It’s only “hate speech” – defined as speech the listener hates, that needs protection. We seem to be having the same moment right now with bail. The press is overflowing with stories that Epstein’s wealth has entitled him to great privilege and special status. The opposite seems to be true. I would wager that if Epstein were a Cinnabon manager with a net worth of $50K, he would be home right now.
What’s most important to preserve our rights is to grant them to those we dislike. Heinous allegations may be made precisely because they are damaging in and of themselves. That seems unlikely in this case, however, as the Miami Herald investigations seem quite damning. Well then, let’s see that evidence challenged in court! Until then, let Mr. Epstein be free – after all, as Judge Berman said, he is innocent of these charges.
Assure Presence at Trial
Bail has one legal purpose: to ensure the accused shows up to the trial. That’s it. Mr. Epstein has had trouble getting bail because he is wealthy and powerful. The alleged victims’ attorneys and the government said he could skip bail and walk around free without ever answering the charges. Epstein has gone to extraordinary lengths to satisfy the court that he will stay.
Epstein has a private jet. He has offered to ground it until the conclusion of a trial. Epstein is Richie Rich and can afford all sorts of ways to slip the jurisdiction. He has volunteered to wear a GPS ankle-monitor continuously. Mr. Epstein has offered to have a court-appointed supervisor stay in his home to monitor his whereabouts and report any violations. Sorry – just not good enough. How about an explosive collar to wear that he has to get a special code for every six hours? That one I made up, but one suspects Epstein would agree to the condition, and the court would still find it insufficient.
Bail Favors the Innocent
Reasonable bail conditions favor the innocent. There are a dozen shows on television displaying the sad state of affairs behind bars in the United States. That may be an unavoidable reality for those convicted of a crime, but not for the accused. Is an innocent person accused of a crime more likely to fight unjust charges while free and working or while imprisoned?
If the charges are so heinous and the evidence so compelling, let the government bring its case to court now. If, however, it needs time to build a case against Mr. Epstein, it is the height of cruelty to make him sit in a cage while doing so – unless and until he is guilty, he is innocent.