At least two Jackson County judges and its district attorney apparently do not believe there is an issue with jail overcrowding, if their actions and statements over a bail issue are any indication. The more important question is whether they believe in fairness.

At least two Jackson County judges and its district attorney apparently do not believe there is an issue with jail overcrowding, if their actions and statements over a bail issue are any indication. The more important question is whether they believe in fairness.

The issue arose when a Central Point man, Ken Gutches, posted bail for his son, who had been arrested on sexual assault charges. To his chagrin, Gutches discovered after the trial that the court would not return his bail money, even though his son had complied with all aspects of the bail agreement.

This is no small financial matter: Ken Gutches posted $40,000; his brother, $50,000; and the defendant, $10,000. The money in question is the $90,000 posted by the father and uncle and why the state would even consider penalizing family and friends who step forward to bail defendants out of jail.

In the case of Gutches' son, Brad Gutches, judges Phil Arnold and Dan White have ruled that the court will keep the money until any potential civil litigation is resolved. In a hearing last week, Judge Ron Grensky seemed to support his fellow jurists and was dismissive toward the arguments that Ken Gutches should not be made to pay for his adult son's crimes. No one should confuse the bail question with the issue of the guilt or innocence of the defendant. None of the arguments over the bail suggests that Brad Gutches does not deserve the full penalties of the law for his confessed raping of two women (he was convicted and is currently in prison, serving an 11-year sentence). But 90 percent of the money being impounded does not belong to Brad Gutches; it belongs to family members.

In some ways, this strikes at the very heart of a staple of American jurisprudence: You are innocent until proven guilty. At the time bail is posted, the accused is still considered innocent in the eyes of the law, and in most cases family or friends are not privy to the details of the investigation. All they know is that a loved one or friend needs their help, and they feel confident enough that the accused will not flee that they post the bail amount. They have not posted bail for a guilty defendant, because that guilt or innocence has not yet been determined.

Oregon does not allow bail bondsmen, another argument for returning bail funds posted by others. Because the state does not allow private bondsmen to post bail, the bail must be raised by acquaintances. Truth is, no bail bondsman would post bail in a state where the money could be seized by the court even if the defendant met all the requirements of the court. So Oregon sets a higher standard for private individuals than other states do for bail bond companies.

We — and the court system — should be alarmed at this turn. Would you post bail, potentially hundreds of thousands of dollars — for a close friend or even a relative if you thought the court could seize it, or at a minimum tie it up for months or years? Not likely. That means defendants who are not flight risks will fill jail cells, while the usual procession of people accused, or even convicted, of drug and property crimes will walk in the front door of the jail and all too quickly walk out the back door, because of overcrowding.

Beyond that — and above that — is the simple matter of fairness. Brad Gutches is a 27-year-old adult, long emancipated from his family. Why is his father, or anyone else for that matter, expected to pay for his crimes?

It's not fair and it's not right. If the courts plan to continue this sad miscarriage of justice, the Legislature should step in and put an end to it.