Dangerous defendants - a rejoinder

Dangerous defendants - a rejoinder

In the January 2018 edition of the Yale Law Journal, Assistant Professor Sandra G. Mayson argued that an objective risk assessment instrument to determine whether bail should be granted provided the basis for applying the same risk standard to defendants and equally dangerous non-defendants. This is a startling proposition. In this rejoinder, it will be contended that reliance on a solely objective risk assessment is flawed and that equating the risk standard applied to defendants with non-defendants who are equally dangerous is fallacious. Risk assessment is both an objective and subjective exercise, which can be refined and recalibrated by the use of categories of offenses where the onus of proof differs depending on the seriousness of the offense (for example, the onus of proof as to why the defendant should be granted bail falls on the defendant where the charge is murder), and by the use of conditions in the granting of bail outside of posting money bail. These conditions address issues well beyond the one-dimensional risk assessment as to whether the released defendant will commit other crimes, as assumed in the article. Judges determining a bail application regularly engage in a balancing exercise between the competing public interests of the assumption of innocence and the protection of the public at large; this is hardly a quantitative formulaic task.

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