Thursday, May 11, 2017

Now, Don't Go Anywhere

I've never been more than vaguely aware of how material witness warrants work. I'd typically heard of them in relation to terrorism cases, where prosecutors would use them to lock up someone they understood had incriminating evidence against a suspect, but couldn't be tied to the crime directly enough to simply be a suspect themselves. Some of these warrants seemed suspicious to me, given the very limited information I had, somewhere between fishing expeditions and punitive detentions for the crime of being too well acquainted with someone the public was afraid of.

But reading the BBC recently, I learned that it's possible to take material witness arrests to a whole new level.

In 2015, 56-year-old Russell Hernandez was released after two years without charge at Rikers Island prison on a material witness bond. Mr Hernandez served more time than the two men who robbed him and never even testified, because they took a plea deal. He won $1m in compensation.
'Scared for my life': Why are crime victims being jailed?
Prosecutors, it turns out, also use material witness warrants to detain people they're concerned may not show up to testify against the people accused of committing criminal acts against them.

When I read the article, I was reminded of a something I'd read once on the web: Some people go into law enforcement to serve the public, and some people to get the bad guys. Keeping someone in jail for years, simply to ensure that they'll be available to testify against a pair of robbers seems to land squarely in the mode of getting the bad guys. Although I can understand, from the point of view of a prosecutor, how it can seem like serving the public.

And that raises an interesting question: What is the responsibility of the target of a crime to participate in bringing the perpetrator of that crime to justice? And what should we be prepared to ask people to sacrifice to discharge that responsibility? Was it worthwhile (even outside of having to pay $1,000,000 in damages) to incarcerate Russell Hernandez for two years simply to be able to force him to testify against to men who robbed him? Were the robbers that dangerous? Even in a case where the crime was violent, is it worth incarcerating someone to compel, not their testimony, but their availability to testify? Given the unreliability of eyewitness testimony, should we be using jail time as a means to secure it? I don't know. I'm not judged on my ability to bring people to justice.

Part of this, I suspect, points to a problem that we have with reassuring that being on the side of the law is worth it. Once a witness is murdered by someone with ties to a perpetrator, they tend to become just another statistic. Locking people up doesn't change that. It needs a bigger push.

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