The Queen of Hearts grew impatient at the trial where she presided.
“‘No, no!’ said the Queen. ‘Sentence first–verdict afterwards.'”
“‘Stuff and sense!’ said Alice loudly. ‘The idea of having the sentence first!'”
Stuff and sense, indeed — and now Charlotte’s top law enforcement officer, with the help of local reporters, has launched a public relations campaign to bring such mischief to the Queen City.
In late June, police arrested and charged Toddrick McFadden with a host of crimes — including one count of discharging a weapon into occupied property, two counts of attempted murder, and two counts of assault on a law enforcement officer — after they say he shot into a bar in NoDa. One of the bullets McFadden allegedly fired struck a police officer in the leg.
“It’s a disturbing trend that our men and women in uniform are being fired at while doing their jobs, and it’s not just in Charlotte where this is happening,” he said.
With the video, Jennings announced his intention to use the McFadden shooting as a hook to manipulate public opinion.
The chief began by overstating the type and degree of danger officers face on the job, suggesting police work is especially risky and inviting viewers to imagine cops constantly engaged with would-be murderers, robbers, and rapists.
But the chief’s premise is false. Cops spend most of their time engaged in low-level administrative regulation, often involving people who are poor, homeless, or mentally ill.
This hum-drum reality is reflected in fatality statistics: 454 of the 633 on-the-job law enforcement deaths across the country in 2021 were from COVID, and only 62 deaths (less than 10%) were from firearms.
Furthermore, being a cop isn’t especially risky when compared to other jobs. A 2020 study found that twenty-one other occupations, including logger, roofer, garbage collector, delivery driver, farmer, crossing guard, crane operator, and mechanic, are more dangerous.
Law enforcement must ignore these realities because, if acknowledged, they would interfere with the mythological narrative that casts cops as a collection of beleaguered heroes beset on all sides by violence, a clutch of modern-day civic saviors targeted by dark, malignant forces that seek to terrorize the community by attacking its peacemakers.
To combat the truth — and with the help of a rare, ready-made prop in the form an officer’s bloody, broken leg — Jennings used his video statement to amplify a self-pitying cops-as-unappreciated-heroes fiction and declare the need “to turn the narrative that we see so often about the vilification of law enforcement and police officers.”
Presented with a chance to advance the police department’s interests with a dramatic, if misleading, late-night crime-scene performance, Jennings seized the opportunity.
He would shortly thereafter seize another.
Following his arrest, a magistrate set McFadden’s bond at $170,000, which prompted Jennings to publicly object in another video posted to YouTube.
“When I woke up this morning, I was astonished to see the bond results for Toddrick McFadden,” Jennings said.
He found it “devastating” that someone accused of attempted murder of a law enforcement officer would not receive a higher bond.
“Something’s definitely wrong,” Jennings summarily concluded.
He suggested McFadden’s bond was insufficiently punitive.
Observed Jennings, “Now I may be missing something, but your lives are worth a whole lot more than $17,000 to let someone back on the streets.” (Commercial bail bonds require cash payment equal to 10% of the total bond, so McFadden could have bonded out by paying $17,000.)
The chief pledged to work “to ensure this thing does not happen again.”
He concluded, “I feel what you feel when you see these things come out, and I have a platform to at least try and address it, and I commit to you that I will continue to do that.”
After the video’s publication, Charlotte’s news media unthinkingly circulated Jennings’s objections.
Alex Giles at WBTV ran a story quoting only two sources: Jennings’s video and Dan Redford, a CMPD officer and president of the local Fraternal Order of Police. (Giles reported that he also reached out to chief district judge Elizabeth Trosch, but she didn’t respond.)
This wasn’t journalism, but stenography in service to law enforcement, which shouldn’t surprise. As explained in Giles’s WBTV biography, “Alex also works with the CMPD Crime Stoppers program to put together weekly stories highlighting criminal activity in Charlotte. He also serves as a member of the CMPD’s Crime Stoppers Board.” Law enforcement has co-opted Giles, who has actively participated in his own transformation from reporter to flack.
In a story attributed only to its news staff, WSOC did much the same as Giles, posting an article that quoted Jennings’s recorded statement, the district attorney’s office, and the Fraternal Order of Police. (The station also quoted a lengthy statement from the “court administrator’s office” that described the law relevant to setting bonds and the procedures for doing so, but didn’t specifically address McFadden’s case.)
Over at the Charlotte Observer, reporter Jonathan Limehouse similarly performed. The only sources for his story were Jennings’s video and previous reporting reliant on law enforcement. (The Observer would later publish a primer on how bonds work in North Carolina. Reporter Mary Ramsey quoted Jennings in the article while failing to offer any argument except the one advanced by the chief.)
Without a word of dissent from a contrary perspective and without any sources from outside the machinery of incarceration, all of these stories had the effect of endorsing and advancing Jennings’s argument that our system of bail is badly broken because it is insufficiently punitive. (What accounts for our reporters’ willingness to describe the world from the cops’ perspective? Consider that law enforcement and the media share two characteristics as social institutions: They fancy themselves as holding others accountable — police officers by enforcing the law and journalists by exposing bad behavior — but there exists no mechanism by which they themselves are meaningfully held accountable: Cops rarely arrest other cops (especially for acts done as cops) and reporters rarely write stories critiquing the work of other reporters, at least at the local level. Without other social actors to hold them accountable, police officers and journalists both possess a certain impunity that permits them to operate above the law — cops literally and reporters metaphorically. Law enforcement and the media, each in their own way, occupy the sort of social space held by kings, who apply the law to others but to whom the law is not applied. This may encourage cops and reporters to develop an unspoken authoritarian perspective — “we hold others to account, but are not held to account” — and this shared perspective may incentivize affinity and empathy.)
Following the chief’s statement and local journalists’ dutiful transcription and dissemination of it, Jennings got his way: A judge first increased McFadden’s bail to $270,000, and then to $520,000. He remains incarcerated in the Mecklenburg County Jail.
Jennings succeeded in keeping McFadden behind bars before trial, but he wasn’t going to let the moment pass. He’d stumbled upon an opportunity to campaign to keep even more innocent people in cages, and he was just getting started.
Before looking more closely at Jennings’s coordinated attack on public opinion and our legal traditions — and to help us better understand the chief’s campaign to manipulate us — let’s first stop and get our bearings regarding bonds and bail.
We should begin with the centuries-old, bedrock legal principle that occupies — in theory, if not practice — the very center of our system of criminal laws: the presumption of innocence.
As the Supreme Court recognized in Coffin v. United States (1895), “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal laws.”
If we are to remain a free people, we must safeguard and insist upon the vindication of this foundational principle — along with its close companion that an accused be deemed guilty of a crime only if the government convinces a jury of his guilt, unanimously and beyond a reasonable doubt.
It follows from the presumption of innocence that no man is to be punished unless and until a jury of his peers convicts him and thereby removes from him his rightful claim to innocence.
Here we spot the potential problem with pre-trial detention: If a man merely accused remains innocent until proven guilty, and if a man’s guilt can be proven only after a trial at the conclusion of which a jury of his peers is unanimously persuaded of his guilt beyond a reasonable doubt, can we properly cage someone before trial? Are we not, by keeping him in jail pending trial, improperly punishing someone who is, by definition, innocent?
Not necessarily, according to the Supreme Court, which affirmed in Salerno v. United States (1987) that the government, in limited circumstances, may detain someone before trial.
The “primary purpose” of pre-trial detention, the justices explained, “is to safeguard the courts’ role in adjudicating the guilt or innocence of defendants.”
For example, a judge can order someone held before trial if the accused poses a flight risk because, were he to be released before trial and then flee the jurisdiction, the “courts’ role in adjudicating the guilt or innocence of defendants” would be impaired.
The Court also endorsed the view that the Constitution allows pre-trial detention for other “compelling interests.” As relevant in Salerno, this included a showing by the government, by clear and convincing evidence, that a defendant, if released, would pose a threat to the safety of others or the community.
The justices characterized such detention not as punishment, but as a regulatory measure intended to address the “pressing societal problem” of “preventing danger to the community.” (Three liberal justices dissented in Salerno, describing as “sterile formalism” the distinction between detention-as-punishment and detention-as-regulation.)
The Court also explained that if policymakers ever sought to use pre-trial detention as a punishment, their actions would likely fail constitutional scrutiny, and the majority closed its opinion with an observation about the imperative that pre-trial detention be infrequent and limited to compelling circumstances: “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”
The constitutional guardrails for bail may be fairly summarized thusly: 1) Pre-trial release is the presumptive right of those accused of crimes; 2) the government may seek to overcome this presumption by making a strong showing that there exists a compelling reason, usually related to flight risk or danger to the community, to hold someone in jail before trial; and 3) punishment may never qualify as a compelling reason for pre-trial detention.
Despite the Supreme Court’s clear guidance, Chief Jennings seeks to punish people who stand merely accused.
He made this clear last week in an editorial published in the Charlotte Observer and in a series of interviews granted to television news reporters.
While purportedly arguing for more consistent bonds across cases and higher bonds for people accused of violent crimes — people he thinks would likely pose a threat to public safety if released before trial — Jennings couldn’t help but express his desire to punish.
“If someone commits a violent crime, no matter the age, he or she should be held accountable for his or her actions,” Jennings wrote. “Our judges and magistrates need to hold violent criminals accountable for their actions consistently.”
He concluded, “We owe accountability to those who violate the very laws we are sworn to uphold.”
“To change violent crime in our communities we have to hold these criminals accountable for their actions,” Jennings wrote.
With these arguments, the chief bade farewell to the presumption of innocence because no one merely accused has, as a constitutional reality, “committ[ed]” any crimes or “violat[ed]” any laws.
To do as Jennings urged — to treat merely accused people as “violent criminals” who should be held “accountable” for offenses they are legally innocent of committing — would be to displace proper considerations of pre-trial detention with improper considerations of pre-trial punishment: Sentence first, verdict afterwards.
Jennings underscored his punitive motives with a rhetorical question whose spirit animated his op-ed: “[W]hat is a life worth?” (A quick reminder: Notwithstanding this flourish, McFadden isn’t accused of taking anyone’s life. Nor is the other defendant Jennings described in his editorial. Additionally, state law already has in place significant restrictions on bonds for people accused of murder. Jennings knows this, but to acknowledge it would interfere with the story he’s trying to tell.)
This is the sort of question a prosecutor properly poses to a judge or jury after a guilty verdict. It is not the sort of question a magistrate or judge can properly consider before an innocent man has been convicted because it has as its gravamen the desire to punish — or, to use Jennings’s language, to hold accountable — and punishment before trial is anathema to our system of laws.
When Jennings sat down for interviews with a gaggle of local television news reporters, they quickly and uncritically adopted the chief’s framing and lodged no objections to his desire to punish before trial. Nor did they bother to talk to anyone who challenged the broken-system narrative coming from Jennings and CMPD. Instead, while wearing their on-air “I’m concerned” faces, they behaved as though Jennings spoke the uncontested, un-contestable truth. (Then they took pictures with him.)
In her interview with the chief, Allison Latos at WSOC made her point of reference not the innocent people Jennings wants locked in cages, but the police officers who feel frustrated when their mere accusations are not enough to keep innocent people behind bars.
Jennings gladly played along: “It’s very difficult when you have an investigation, and you have officers that put their heart and soul into it … to keep our community safe. And we do an investigation where we’re able to make probable cause to make an arrest, only to see that individual get out on a very low bond, or even get out in general.” (Protecting police officers’ feelings and preventing their frustrations are not constitutionally sound reasons for pre-trial detention.)
When talking about McFadden in particular, the chief also repeated the punishment-themed question he raised in his op-ed. He asked, “[I]s that the value that’s put on us to give a bond to attempted murder charges on a police officer?” Latos didn’t push back.
Their story opened, “Charlotte-Mecklenburg Police Chief Johnny Jennings wants a change in state law to keep violent criminals from bonding out of jail and going back on the streets.” Of course, “violent criminals” don’t bond out; only innocent people accused of crimes bond out.
They also repeated Jennings’s erroneous assertion that magistrates and judges currently lack guidelines for setting bonds: Pages of state law outline the factors to be taken into consideration when setting bail, and many counties, including Mecklenburg, have additional guidelines of their own. (To their credit, Beckman and Ruffes quoted a defense attorney who recited for them that there are only two things a magistrate or judge can properly take into consideration when setting bond: flight risk and danger to the community. This out-of-county lawyer didn’t challenge Jennings’s perspective or argument, but merely acted as an expert on state law in the abstract.)
Regarding the initial $170,000 bond set for McFadden, Jennings said, “When I saw that and I realized what that does to the psyche of our officers … it was just a kick in the gut.” (Again, our system of bail is not intended to protect the apparently delicate mental makeups of police officers.)
Multiple reporters at WBTV promoted Jennings’s narrative as the indisputable truth.
Then he offered a note of gratitude for the chief: “But it is front and center thanks to Charlotte-Mecklenburg Police Chief Johnny Jennings.”
Hamilton also mischaracterized accused people as “violent criminals.”
WBTV’s Molly Grantham opened her on-air story, “The Charlotte-Mecklenburg police chief is on a mission to keep violent offenders in Mecklenburg County behind bars,” and she said Jennings aims to “stop the revolving door of crime in our city.” She offered no facts to support the assertion that there exists a “revolving door of crime in our city.”
After recounting for viewers a couple of cases in which magistrates set bonds that struck Grantham as inexplicable, including McFadden’s, she treated a police-endorsed conclusion as a question.
“It’s so arbitrary,” she said.
Jennings readily agreed: “Yes.”
Then, like some of her colleagues, Grantham turned to officer morale.
“The inconsistency is why CMPD Chief Johnny Jennings says his officers are frustrated,” she said. (Once more, the management of officers’ frustrations is not a proper consideration when setting bail.)
Responded Jennings, “We put hours into locating a violent criminal only to find out that criminal was given an unsecured bond or just was released back into our community. … As an officer, you’re feeling, ‘What am I doing this for?'” (Unsecured bonds help ensure future attendance at court by requiring the accused to pay a bond if he fails to attend. And promises to appear are exactly what they sound like and do not require any payments by defendants.)
A few observations:
First, no “violent criminal” is released on bond. Innocent people accused of crimes are released on bond.
Second, police officers ought to be asking themselves why they do what they do. Cops work in a broken system of state violence that gobbles up hundreds of billions of public dollars a year while inflicting countless indignities and outrages on people who are overwhelmingly poor, brown, or Black. Officers deserve a crisis of conscience.
Third, and most important, Jennings tipped his hand.
The chief’s pitch for higher bonds is built upon a small foundation of attention-grabbing, especially violent crimes. McFadden, an allegedly gun-wielding assailant who supposedly shot a cop and may be coming for you next, is Jennings’s poster child in this campaign.
But people like McFadden who stand accused of seriously violent crimes aren’t given unsecured bonds like those Jennings referenced. And they certainly aren’t released on promises to appear. Rather, magistrates offer those terms of pre-trial release to individuals accused of relatively minor crimes.
Hence a red flag: In a conversation supposedly about allegedly violent people like McFadden, Jennings is talking about individuals accused of petty offenses. His remarks tend to suggest to the public that we should think of McFadden and those like him when people accused of minor crimes are up for pre-trial release. Jennings is conflating the two groups and implicitly inviting us to do the same. If we accept his invitation, then we will be more easily persuaded to view as similar those accused of simple assault and those accused of attempted murder. From there, it’ll be an easy matter for law enforcement to convince us that we ought to treat the accused simple assaulter just as we would the alleged attempted murderer.
So while ostensibly aimed at keeping allegedly dangerous people like McFadden locked up before trial, the chief’s “bail reform” campaign defines dangerousness broadly and thereby seeks to justify the pre-trial detention of innocent people accused of committing relatively petty crimes — all in service to authoritarian instruments of state violence that possess a thirst not only for power, but for a reputation for power: Cops, if they are to retain their social standing, need to not only wield authority, but to be seen as wielding authority, and legitimately so. And they are made to be seen in this manner by telling self-aggrandizing stories about their own indispensability — stories that, simply by virtue of being told, become true, or at least get treated as true.
In a post-George Floyd world where law enforcement has seen its prerogatives publicly challenged in some quarters — remember the video in which Jennings lamented the negative opinion some have adopted regarding the police — the chief’s campaign constitutes a calculated effort to reassert law enforcement’s political and cultural clout. CMPD seeks to reap the perceived reputational benefits that arise from telling a civic tall tale about the need for carceral heroes to inflict punishment on powerless, marginalized people who would harm us but for the brave, resolute actions of men like Johnny Jennings.
But suppose we give the chief the benefit of the doubt. Suppose we assume that his intention really is to target for higher bonds and more pre-trial detention only those people he thinks count as especially violent alleged offenders.
No matter: This nation’s history of inflicting draconian criminal-justice outcomes while acting with purportedly good intentions counsels extreme caution.
After all, we’ve heard this bit before about the need to be protected from especially dangerous people.
To take but one example: A 1995 cover story written for The Weekly Standard by Princeton professor John DiIulio, Jr. describing the phenomenon of “super crime-prone young males” determined to inflict all manner of violence upon us:
“On the horizon, therefore, are tens of thousands of severely morally impoverished juvenile super-predators. They are perfectly capable of committing the most heinous acts of physical violence for the most trivial reasons (for example, a perception of slight disrespect or the accident of being in their path). They fear neither the stigma of arrest nor the pain of imprisonment. They live by the meanest code of the meanest streets, a code that reinforces rather than restrains their violent, hair-trigger mentality. In prison or out, the things that super-predators get by their criminal behavior — sex, drugs, money — are their own immediate rewards. Nothing else matters to them. So for as long as their youthful energies hold out, they will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”
We were told the proper personal response to these young men — really, just children — was fear, and the proper political response to adopt more “tough on crime” laws.
As The Marshall Project explained in Superpredator: The Media Myth That Demonized a Generation of Black Youth, DiIulio’s piece came just a few years after journalists’ fascination with a “wolfpack” of “wilding” male teenagers of color — four Black and one Hispanic — who were wrongly convicted of raping the Central Park jogger in New York.
An atmosphere of hysteria had prepared the public to embrace the infliction of maximum carceral violence on vulnerable populations — especially Black boys and men — without regard to the nation’s actual experience with crime, which began declining in the early 1990s and still remains low.
“The ‘super-predator’ theory, besides being a racist trope, was not borne out in crime statistics. Juvenile arrests for murder — and juvenile crime generally — had already started falling when DiIulio’s article was published. By 2000, when tens of thousands more children were supposed to be out there mugging and killing, juvenile murder arrests had fallen by two-thirds,” The Marshall Project wrote.
Notwithstanding the disconnect between DiIulio’s racist rhetoric and realities on the ground, the “super-predator” label took off. According to The Marshall Project, it appeared at least 300 times in news stories and other media accounts. (Then-First Lady Hillary Clinton also got in on the action, describing these children as having “no conscience, no empathy” and suggesting they were more animal than human.)
This racist, modern-day Grimm’s Fairy Tale about murderous Black teenagers rampaging through communities captured the public’s imagination the same way stories about crack cocaine did a decade earlier.
As with super-predators, the drug’s dangers — often personified by racist images and stories of so-called crack babies — rattled a nation eager to be afraid and resulted in the adoption of a host of mandatory-minimum sentencing laws that locked people up for decades because of the purported threat they posed.
Then there was the 1994 Crime Bill that we were told would meet our need for harsher sentences while paying for more cops to protect us from dangerous street criminals. (It’s always street crime we’re told to fear, never the devastating, society-wide crimes against homeowners, borrowers, workers, consumers, and the environment perpetrated by business executives like those who occupy Charlotte’s corporate skyscrapers. Why, we can rightly wonder, does Alex Giles not publish a standing weekly story on wage theft or other corporate wrongdoing?)
While the crime bill itself may not have caused our crisis of mass incarceration, it certainly didn’t help. (Another aside: The media coverage of Jennings’s work to keep more people in jail failed to mention even once that we already incarcerate more people per capita in this country than any other nation in the world. We’re jailing too many people in America, but to listen to Jennings tell it through the megaphone provided to him by Charlotte’s cadre of credulous, complicit journalists, we aren’t jailing nearly enough.)
So the chief’s message isn’t anything new: Cops, sheriffs, prosecutors, and other actors whose self-interest relies upon the continued existence of a robust carceral state and its cruel systems of arbitrary, inequitable punishment never tire of telling us about the next thing we ought to fear.
It is in this context that we should consider Jennings’s invitation to ignore the presumption of innocence and treat pre-trial detention as something other than the “carefully limited exception” it is supposed to be.
His efforts will succeed to the degree he can convince us that the presumption of innocence is someone else’s concern, not ours. That’s why the chief implicitly tells the public it needn’t worry itself with protecting due process of law because only violent criminals — a group that Jennings suggests doesn’t include any members of the public to whom he is addressing himself — seek shelter behind such legal niceties.
Without help, though, Jennings can’t persuade us to abandon our hard-earned, centuries-old legacy of liberty. He can suggest the fear that he hopes will take hold of our minds, but he cannot cultivate it alone.
Lucky for him, Grantham and Giles and Latos and Fogarty and their fellow propagandists for law enforcement are eager to be enlisted in his campaign.
At the close of her interview with Jennings, Grantham gave him a chance to assert without any factual basis that “there are probably thousands of personal stories out there [of people adversely affected by the pre-trial release of accused individuals], and I think they need to be heard.”
The camera then cut back to Grantham’s anchor desk in the studio, where she offered her best low-key imitation of Lewis Prothero:
“OK, so did you hear what Chief Jennings just said there? That he knows thousands of people out there, thousands of you, maybe you watching right now, have been impacted or hurt by someone let back out on the street because of a low bond when, in the chief’s mind, they could have still been in jail.”
While sharing the email address for CMPD’s public affairs office, Grantham, without hesitation, stepped into the role of police adjunct and encouraged viewers to submit their stories to law enforcement.
With our technically free press in such thrall to officialdom, it’s perhaps no wonder that we’re tempted to succumb to fear and surrender the constitutional presumption of innocence that is our civic birthright.