Three Perspectives on Bail Reform: Constitutional Principles vs. Public Safety

In August 2025, President Trump signed executive orders targeting cashless bail policies in Washington D.C. and threatening federal funding cuts to jurisdictions nationwide that maintain such policies. This development brings renewed urgency to a debate that cuts to the heart of constitutional governance and criminal justice.

The issue sparked intense discussion between Michael Liebowitz and Mark Pellegrino, with James Valliant weighing in from the comments.  Their exchanges reveal three distinct approaches to balancing individual rights with public safety - each grounded in legitimate concerns about different aspects of justice and governance.

The Constitutional Framework Position

Michael Liebowitz grounds his argument in three bedrock constitutional principles that he sees as non-negotiable:

• Presumption of innocence until proven guilty

• Due process requirements for depriving someone of liberty

• Eighth Amendment prohibition against excessive bail

"The purpose of bail ought to be to make sure that people go to court, not to keep people who have not been convicted of anything off the street," Michael argues. When pressed about repeat violent offenders, he doesn't back down: "You're talking about having the police arrest somebody and having a judge determine without a trial that that person is too dangerous to be on the street. He hasn't been convicted."

Michael sees the fundamental issue as one of constitutional principle versus expedience: "If you are presumed innocent and you're raising that person's bond to such an extent, not to make sure they come to court... then you're saying you're not innocent until proven guilty." He views Trump's approach as particularly dangerous: "I think that the idea that he wants to ban this nationwide is a serious violation of the Constitution, specifically the 10th Amendment."

His skepticism about trusting authorities stems from personal experience: "Every cop that took the stand lied," he says about his own trial. "They lied because they thought lying was justified because they knew I was guilty. The problem is, what if I wasn't?" This leads him to warn about systemic abuse: "What happens when they make mistakes? What happens when they hold the person for years without bail, who hasn't committed any crime, who's ultimately found innocent?"

Michael's position extends to concerns about judicial corruption and abuse of power: "What happens when they make mistakes? What happens when they hold the person for years without bail, who hasn't committed any crime, who's ultimately found innocent? Are judges beyond corruption? Are police beyond corruption? Do they not fabricate evidence? Do they not lie?"

CORE ARGUMENT: The cumulative effect of due process, presumption of innocence, and excessive bail protections means "you cannot use bail as a weapon to keep people off the street" without fundamentally violating constitutional principles.

The Prosecutorial Experience Perspective

James Valliant brings nearly 18 years of prosecutorial experience to this discussion, particularly from his work in domestic violence cases. His approach acknowledges constitutional principles while arguing they must operate within practical realities where real people face genuine dangers.

"I am not going to take the chance if we have probable cause on a serial rapist to let him out until trial," Jim states with the moral certainty that comes from seeing victims. His domestic violence cases particularly inform his thinking about repeat offenders and the cycle of violence: "The woman will call 911. The guy will get arrested. They'll see the injuries on her, they'll take him away. It's pretty clear what happened. And guess what happens the next day? The woman comes in and says, 'Mr. Valliant, please drop the charges. I need him home for the kids.'"

Jim argues that the system already involves multiple layers of judgment and assessment:

• Police must establish probable cause for arrests

• Prosecutors must assess evidence before filing charges: "I don't file the charge unless I already see that we've got evidence to prove it beyond a reasonable doubt"

• Judges evaluate risk based on established procedures

"When a prosecutor files charges, that is a higher level of protection," Jim explains. "And what do you get at a bail hearing? You can have a probable cause hearing right away. Or if it's a felony, you would have a preliminary hearing within 10 court days of your arraignment."

Jim doesn't see bail determinations as constitutional violations but as practical risk management within existing due process protections. He points to the human cost calculation: "If it turns out that we are wrong, guess what? We can compensate the guy. If it turns out we're right, there's no way I can bring back a dead victim who's been murdered."

His experience with repeat domestic violence cases shapes his perspective on danger assessment: "Here am I sitting at a bail hearing with a guy who, you know, last night or the night before last, beat the crap out of his wife when he was drunk or on meth... Am I just supposed to let him out so that he can do it again? Well, let's see. By midnight tonight, the cops will be there separating them from a bloody drunken fight one more time."

Jim acknowledges the tension but argues for judicial discretion within constitutional bounds: "There are certain criminals that are so dangerous that the risk of letting them out after they've been properly arrested with probable cause... taking the chance with a murderer or a serial rapist or something is not a wise choice." He sees this as consistent with due process: "We've got layers of protection... frequently you won't have the same judge who presides over monitoring the grand jury or does the preliminary hearing and does the motions on the case and does the jury trial."

CORE ARGUMENT: Constitutional protections can coexist with practical risk assessment when conducted within proper procedural safeguards and judicial oversight.

The Federalism Objection

Mark Pellegrino focuses on the constitutional dimension that transcends the specific bail debate: federal overreach into state criminal justice systems. His concerns center on the Tenth Amendment and the proper division of powers in the federal system.

"What Madison would say is it's none of the federal government's business how states do their bail system," Mark argues, pointing directly to constitutional structure. He emphasizes that this principle applies regardless of one's views on bail policy itself: "I think that this should be exercised at a state level. I don't think that the federal government has any business getting involved in it."

Mark draws explicit historical parallels to demonstrate how federal power can be misused across political lines: "Let's not forget that the FCC was created by Roosevelt as a means of manipulating the people who own the airways into supporting the New Deal. And he used the FCC liberally to cudgel people into submission so that he could pass his New Deal and radio stations that spoke out against the New Deal, well, they didn't get their licenses until they actually supported what the Imperial President was doing."

His critique extends beyond Trump to what he sees as a bipartisan problem with constitutional adherence: "It seems like both sides have an antipathy for the Constitution. It gets in their way." Mark argues that Trump's approach represents exactly the kind of executive overreach that the Constitution was designed to prevent: "The president has no power to do any of the things that he is doing today. If he were taking his constitutional restraints seriously, he wouldn't be doing them. He would be going through the legislature."

Mark's concern about precedent is particularly pointed: "The things that he's doing today can be done by a president from the opposite tribe. The way in which he's violating the Constitution today can work against you. And just because your tribe is happy with it today doesn't mean that you're gonna be happy with it tomorrow." This leads him to a fundamental warning about constitutional violations having consequences beyond immediate policy preferences: "When the Constitution is violated, everyone's rights are violated."

He sees the constitutional framework as essential protection against authoritarianism regardless of which party holds power: "The Constitution is your bulwark against authoritarianism. You should cling to it like a life raft, like a lifesaver, because without it, the federal government can run roughshod over you."

His warning about the imperial presidency transcends party lines: "I like the Constitution getting in Trump's way. Unfortunately, he seems to be winning in his war with the American people, essentially. Folks, that's what it is. The Constitution is your bulwark against authoritarianism."

CORE ARGUMENT: Even if one supports tougher bail policies, the method matters as much as the substance - federal coercion of state criminal justice policies represents a dangerous precedent that undermines constitutional federalism and opens the door to future abuses by any administration.

The Constitutional Tension

What emerges from this discussion isn't a clear resolution but an illustration of fundamental tensions in constitutional governance:

• Individual Rights vs. Public Safety: How much risk should society accept to preserve constitutional protections for individuals who haven't been convicted of crimes?

• Federal Authority vs. State Powers: Can the federal government use funding leverage to override state criminal justice policies, even when those policies affect public safety?

• Procedural vs. Substantive Justice: Should constitutional procedures be maintained even when they sometimes produce outcomes that seem to conflict with substantive justice concerns?

Why This Matters Now

The conversation between Michael, James, and Mark demonstrates that reasonable people can disagree about fundamental constitutional questions while maintaining principled positions. Each perspective reflects genuine concerns about different aspects of justice, safety, and constitutional governance.

Michael's constitutional framework position emphasizes that procedural protections exist precisely because they're inconvenient - they force the system to prove guilt rather than assume it. Jim's prosecutorial perspective acknowledges that constitutional principles must operate within practical realities where real people face real dangers. Mark's federalism objection reminds us that how we make these decisions may be as important as what decisions we make.

The challenge lies not in choosing sides, but in grappling seriously with the trade-offs inherent in any criminal justice system that attempts to balance individual rights with collective security. Trump's executive orders force this conversation into immediate political relevance, but the underlying constitutional tensions have shaped American governance since the founding.

Whether you agree with Michael's constitutional purism, Jim's prosecutorial pragmatism, or Mark's federalism concerns, the quality of this disagreement - grounded in constitutional principles rather than partisan talking points - offers a model for how Americans might approach other difficult questions about the proper scope and limits of government power.