No man can be judge in his own case

Cash bail and bounty hunters can be an important and useful part of the criminal justice system. The practice in New Orleans, however, of funding court and judicial benefits with a tax on bail is obnoxious. In recent years, the tax on bail has funded 20-25% of the Judicial Expense Fund which is used to pay staff and office supplies, travel and other costs. The 5th U.S. Circuit Court of Appeal was right to affirm that this tax violates a defendant’s due process rights because it gives judges an incentive to require bail for their own benefit rather than to incentivize the defendant’s court appearance.

“No man can be judge in his own case.” Edward Coke, INSTITUTES OF THE LAWS OF ENGLAND, § 212, 141 (1628). That centuries-old maxim comes from Lord Coke’s ruling that a judge could not be paid with the fines he imposed. Dr. Bonham’s Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610). Almost a century ago, the Supreme Court recognized that principle as part of the due process requirement of an impartial tribunal. Tumey v. Ohio, 273 U.S. 510, 523 (1927).

This case does not involve a judge who receives money based on the decisions he makes. But the magistrate in the Orleans Parish Criminal United States Court of Appeals District Court receives something almost as important: funding for various judicial expenses, most notably money to help pay for court reporters, judicial secretaries, and law clerks. What does this court funding depend on? The bail decisions the magistrate makes that determine whether a defendant obtains pretrial release. When a defendant has to buy a commercial surety bond, a portion of the bond’s value goes to a fund for judges’ expenses. So the more often the magistrate requires a secured money bond as a condition of release, the more money the court has to cover expenses. And the magistrate is a member of the committee that allocates those funds. Arrestees argue that the magistrate’s dual role—generator and administrator of court fees—creates a conflict of interest when the judge sets their bail. We [agree with the district court] that this dual role violates due process.

The plaintiffs also argued that judges must take into account a defendant’s ability to pay when setting bail. The appeals court didn’t rule on that issue but ironically judges who get a percent of the proceeds from bail do have an incentive to take into account ability to pay because only paid bail generates revenues. Eliminating the judge’s cut eliminates the incentive to think about ability to pay. Still, I support the decision. We should try for first best. The theory of second best leads only to madness and ruin.


One might argue that so-called sin taxes have this perverse effect: reliance on sin taxes to fund government has its own incentive not to discourage the sin that is taxed lest government revenues fall. Carbon taxes or any number of similar measures intended to discourage a particular behavior could have the same perverse incentives. The income tax, on the other hand, should provide an incentive for government to do what it can to maximize incomes in order to maximize the government's revenues.

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Sometimes the sin causes the expenditure of public resources: drunk driving, drunken fights in bar rooms, etc., so you can think of a sin tax as an externality tax.

In the case of cigarettes, the tax deters youthful smoking (very good literature on price elasticity of smoking of youth) and also covers costs later of medical care.

Sometimes you use taxes to deter, other times to cover the costs of externalities, which might be born by others if not taxed.

One man's sin is another man's pleasure. Just make sure you pay for the cleanup, and not me.

Sin taxes are levied on elective non-essential purchases with high social externalities.

Bail taxes are levied involuntarily and violate at least the spirit of the Bill of Rights in what is arguably an essential activity.

Don't disagree. One is a voluntary purchase of a combination (tax and product) and the other an involuntary purchase (bail and tax) in the sense that you might be innocent.

Also, we don't give a third party discretion in setting the sin tax; its a fixed percentage of the price of beer.

Who is forced to purchase/pay bail?

I'm suddenly reminded of this week's discussions on carbon taxes but for the life of me I can't figure out why.

An errand laden in pallor is sallow.

government courts... like all government agencies -- are strongly tempted to 'monetize' their authority via creative schemes against the public.

Local courts often operate de facto as independent fiefdoms with broad discretionary power in their administrative operations.
Outrageous "court fees" for litigants and public court records have long been commonplace throughout America.
This Bail Tax extortion is a new twist, but there will be more clever schemes to come.

Note the huge financial bonanza that heavy "civil forfeiture" grand theft has bestowed upon police departments across the nation -- judges and court administrators merely want a similar supply of free money and assets.

Power corrupts and the government/courts have lots of powerful players.

leads only to madness and ruin.?

No, it leads to legitimization of evil, already common in many parts of government at all levels.

Nothing to add, but these "process improvement" threads are good work.

Good decision by the 5th Circuit.

Sounds like they underfunded their courts.

One way judges get better statistics is to dismiss cases quickly, rather than have a trial because you are judged on how many cases you handle and you can clear the docket. Some judges build reputations as being tough so that the prosecutor can negotiate a settlement, and the caseload is manageable.

You get what you pay for.

'No man can be judge in his own case'

Good luck convincing President Trump that he cannot pardon himself - or will at least try to.

Three and a half hours! That might be a new record for longest time between posting an article and the first non-sequitur involving Orange Man. Everyone must be watching college football.

You actually timed him? I have a lower opinion of you now than clockwork.

Well, he can read, so that puts him well above you.

You're confused as usual. A pardon is an executive, not a judicial power. There is no question a president can (and has) pardoned close associates that evoke severe conflicts of interest.

If it were up to me, I'd eliminate the power altogether or assign it to the legislative process.

Just so you know, the judges salaries are set by the State of Louisiana, so they don't get paid based on the collection.

The problem is one of public finance...the state or local authorities are underfunding the courts from the public treasury, and taxing the accused.

So, the headline of the post is misleading in the sense that the judge is not getting paid by the fines.

The headline should read: Underfunding the Courts Leads to Taxing Accused and Not the Rich

Why repeat what is already clearly stated in the post?

The part that was stated was that the judge does not receive the money; however, that was not the headline of the post which was: "No man can be judge in his own case" I am glad that you read the post (but from some comments you can see others did not), and my comment, but my comment is more than that: it is a statement about the headline, it points out to those who do not read the post that the judges do not, in fact, benefit; and it makes the observation that you should fund the judicial system.

Bad headlines deserve attention when, as you point out, it is misleading when read against the post.

Maybe you should have pointed that out instead of leaving it to me.

But the fees financed the judge's staff, releasing tax money to pay the judge more. So we actually do not know if the judge uses the money to pay himself.

If you don't know, then don't make the assertion that its does. Again, the Louisiana sets the judges salary.

Judge not yourself lest you be judged by yourself.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It would be unconstitutional for the judge to set penalty based on personal needs, or needs t the judicial system. The same rule as applies to cops seizing material property and keeping it. Use the fourth for its intended purpose.

"“No man can be judge in his own case.” Edward Coke, INSTITUTES OF THE LAWS OF ENGLAND, § 212, 141 (1628). That centuries-old maxim comes from Lord Coke’s ruling that a judge could not be paid with the fines he imposed." - doesn't work in Texas, where judges as far back as Judge Roy Bean are elected by the public, so they must cater to the public. Besides, Lord Coke, who is the source of many a bad pun in law school, was not espousing a libertarian ideal: isn't justice suppose to be private (and privately funded) in many a libertarian world?

No man can judge his own case.

Does that mean Trump can't pardon himself or others acting illegally under his direction.

I love how you think about Trump ALL DAY. :)

A pardon isn't a judicial power but an executive power.

Of course pardoning oneself is academically interesting and fraught with peril. I suspect the first time it happens will be the last.

I prefer to see this as "You can't fine someone until they are guilty".

If you can just be accused and then the court indirectly gets a slice of what ever fees you get charged just for being accused. Thats fining someone before they have been proven guilty. Thats a serious due process issue.

I dont see it that way. There is a right to bail, I.e. money from your own pocket.

A surety bond is placed on your behalf with a fraction of the bail payment. This process is costly to both the lender and the court. It is an administrative fee, not a fine. The problem here is that the judiciary was pocketing and using the fees. There is no constitutional issue if the funds go to the treasury.

It would be interesting if the legislature earmarked funds largely based on the size of these fees, essentially weaving their way around the decision.

I suspect though that the state will change the funding method.

Cash bail and bounty hunters can be an important and useful part of the criminal justice system.

I think only the US and the Philippines have cash bail. The rest of the world seems to manage just fine without it. In practice, cash bail means that poor people -- supposedly presumptively innocent -- are held in jail pre-trial. This is expensive (jail ain't cheap), has all kinds of bad consequences for the incarcerated (who have been found guilty of nothing) and tends to undermine the administration of justice.

after reading the title of the post, I thought this was about the sexual harassment case against Chief Justice of India Ranjan Gogoi

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