This is the first installment in a series on bail in the criminal justice system. It is an introduction to the series. Later pieces will cover the origins of bail, the rise of individual rights, early American bail practices, bail at the U.S. federal level, bail and the U.S. Supreme Court, the history of bail in Indiana, and today’s bail reform movement.
Bail as we know it is a modern practice, yet its roots reach to the very beginning of humanity. It is an attempt to solve an age-old problem--how to properly balance order and chaos.
The world’s oldest creation myth, from ancient Samaria, offers insight. The myth features a battle between the gods Tiamat and Marduk. In the story, Tiamat, the goddess of saltwater, mates with Apsu, the god of freshwater, producing a multitude of lesser gods. These lesser gods run wild over the earth. They eventually kill Apsu, which enrages Tiamat. In response, Tiamat becomes the god of chaos, waging war against all the gods and bringing disorder and destruction to the earth. To combat this chaos, the lesser gods get together and lift up Marduk as their champion. Marduk wages war against Tiamat, who by now has produced an army of dragons. Marduk slays the dragons with a variety of weapons, then kills Tiamat with an arrow that splits her in two. Marduk then uses the pieces from Tiamat and the dragons he has killed to rebuild an orderly world. In so doing, Marduk becomes the lord of all the Samarian gods, said to be the most wise who helps the good and punishes the wicked.
Human creation myths, like Samaria’s, routinely emphasize order and chaos because taming chaos and creating order is humanity’s oldest problem. Humans must overcome chaos, create order, to survive and flourish. Human societies must not only bridle the chaos of the natural world but must also tame one another. To make order out of chaos, humans must control, to some degree, chaos-making individuals. That is the role the criminal justice system has evolved to play.
This will be a lengthy series about bail because bail is an important part of the criminal justice system. It is a microcosm of the whole. By examining the development and history of bail practices, we can better understand how we humans wage the eternal struggle between order and chaos, and what might be appropriate ways to go about it.
Where ancient Samaria sorted chaos and order through the battles of Tiamat and Marduk, we work out order and chaos inside courtrooms. A judge’s bail order balances safety, or danger to self and others, (order) and individual liberty (chaos). Too much order can become tyranny against the individual. Too much individual liberty can devolve into chaotic dangerousness. The history of bail, then, can be viewed as an effort to balance individual liberty and dangerousness.
From the time of the earliest tribunals until the rise of individual rights, marked by the adoption of the Magna Carta, there was a heavy emphasis on order, a near complete lack of individual liberty. Then, from the Magna Carta through the adoption of U.S. Constitution there is a long history of formulating and lifting up individual rights. Over the last 60 years, we have seen the rise of two bail reform movements in the United States. These movements have emphasized the rights of the individual to the point of dangerousness. In consequence, there have been reactionary movements in both instances. We are currently amid the most recent of these two bail reform movements, and in the infancy of the reaction to it.
In this series on bail, we will explore all of this in much more detail. We will wrestle mightily with Tiamat and Marduk in the process. Hopefully, by the end, judges, lawyers, and lawmakers will have a better understanding of society’s oldest question—how to properly balance order and chaos?