Sunday Commentary: $1 Million Bail is Inappropriate in the Hate Crime Case

Before I get into my argument, there are a few points I would like to make.  First, I have actually gone back and forth on this issue.  When I first heard of the $1 million bail in this case, I thought it was ridiculous.  However, I at least understood the rationale when additional information about Lauren Kirk-Coehlo’s social media comments emerged.

That said, while I certainly understand the pain and anguish that the alleged actions of Kirk-Coehlo have caused in the Muslim community, I found myself agreeing with the very strong defense motion more and more on Thursday and Friday.

I think in the end I understand why Judge Dan Maguire, a judge that I respect a lot, made the call to keep bail at $1 million.  He was probably, like Deputy DA Ryan Couzens, swayed by the notion that, should she be released and in fact caused harm, it would be difficult to look a victim or a victim’s family in the eye and say we did what we thought was the safe thing to do.

With that said, I found the antics of Mr. Couzens to be appalling.  While he has risen in stature at the DA’s office over the last several years, at times his demeanor has been childish and petty.  We are talking about a decision to deny a citizen their freedom, someone who has not been convicted of a crime yet – and he stood up in court and for several minutes whined that he was not prepared for argument, that he stayed up all night and had to drop all his other obligations.

While he may have had a fair point, the way it was stated was certainly not appropriate.  The judge was apologetic the day before when he ordered the hearing, he understood the difficulties, but he had to weigh the rights of the accused against the convenience of the prosecutor.

Mr. Couzens added to this with a somewhat ridiculous argument attempting to tie the defendant’s vandalism and desecration to a violent act against a person – Judge Maguire rightly dismissed that argument out of hand.  Finally Mr. Couzens made the rather insensitive remark about the defendant’s bipolarism, which would further stigmatize the community struggling with mental illness.

Ironically, Mr. Couzens I think had a legitimate point about the danger presented by the defendant, to the broader community in this case, in the form of threats.  While he stepped on that argument by trying to overstretch to deny her bail, it is clear that her comments make this not a simple act of vandalism and they frankly demonstrate why hate crime legislation is very necessary to protect the public.

That said, I was swayed by the defense here, both in the abstract on bail and in particular against the need to incarcerate an individual who neither has a violent criminal past nor had amassed any real tools to carry out her outlandish comments.

First, while Mr. Couzens certainly loudly complained about not being prepared to argue in a complex bail reduction motion, the prosecution has not turned over records to the defense yet either.  That means we are taking representations of the defendant’s comments at face value.

Mr. Couzens is notorious for taking comments out of context, and, while police sources seem to verify the comments, without the defense having the ability to see context, their job is more difficult.

Second, defense attorney David Dratman in his argument on Friday was correct to note that this case is ultimately probation eligible – it does not carry with it mandatory prison.  At some point, Ms. Kirk-Coehlo will be released to the community regardless.  It may serve to comfort some that that will be years down the road, but the reality is that prison rarely works to make people less dangerous – the resources available in prison are often inadequate and the high rate of recidivism speaks for itself.

Punishment is the hallmark of mass incarceration and I would argue that, while it temporarily protects the public by putting people in prison, it does very little to protect people after release.

The judge in this case left bail at $1 million, finding that there was no justification for no bail, and $1 million bail for someone whose family has resources is not outside of the realm of possibility.  That means the points that the defense made about conditions imposed by the jail apply just as much at $1 million as they would at $100,000.

That means, if released, she would be on a GPS monitoring system, she could have no weapons and she cannot communicate with the parties she was in contact with previously.

My question is what difference does the amount of bail make in this case?  If she ends up being released after posting $100,000 bond, she faces the same issues she would at $10,000 bond.

I think the defense makes a great point here – her comments are alarming, they are warning signs, and they are red flags, but none of them are actually outside of her right to free speech, as misguided as they might be.  There is not evidence – other than this relatively minor crime – that she was acting on them.  She didn’t have weapons, bomb material, a vest, or anything else to suggest a mass attack was in the works.

And she would not be released without both conditions and resources.  Her ability while out on release to carry out her threats would be severely impacted, as she would be monitored by authorities, limited in her ability to gain weapons, and under the care her family – receiving better psychiatric treatment than she will be now.

Can we guarantee that she will not act on those general threats?  No.  But we can mitigate the risk.

One million dollars bail is out of proportion to a crime where the defendant faces just a six-year prison sentence at the maximum – which would assume she goes to trial, gets convicted, and the judge imposes the maximum sentence on basically a first-time offender.  More likely she would receive a few years in local custody with probation still possible.

The arguments for no bail based on her threats are the same arguments that would justify indefinite detention – neither one is going to happen and so our system needs to prepare for the eventuality that one day she will be released.  More punishment here is likely not to make us safer – effective treatment or a restorative approach is more likely to be effective.

But can we get out of the mindset that punishment equates to safety?  From what we heard on Friday – no.

I don’t blame the judge here – he has a huge burden in a public case if things go wrong.  But as a whole I think the initial response from the community and the Islamic Center is a healthier and safer response – let us work to restore this individual’s standing in the community and make her understand, through a restorative process, the error of her ways.

Sooner or later, she will be released.  We might as well put the tools in place to restore her to this community.

—David M. Greenwald reporting