The Supreme Court has played semantics to justify technically what it must know violates the spirit of our criminal law. As a former assistant attorney general for the state of Florida, I know that prolonged pretrial detention without bail is always imprisonment without trial or proof of guilt, regardless of the label (e.g. a "regulatory" act aimed at public safety) the court attaches to the incarceration.

There is an understandable (and dangerous) reason, however, why jurists stretch language and logic to reach certain results: nothing else is solving a serious problem.

Here, the court was faced with an undisputed fact: many crimes are committed by defendants awaiting trial. If defendants were brought to trial more quickly, and serious offenses were not plea-bargained down and convicted inmates were not released early, there certainly would be fewer dangerous people on the streets, and the court would not have been faced with making a decision on pretrial incarceration.

Still, the court was wrong here. Jurists should never abridge constitutional guarantees, regardless of personal or societal frustration. Expedient decisions often erode the necessary foundations of freedom.

But next time we get angry at a court, we should also look behind its official opinion to discern the societal failures that led to the judicial "creativity." That goes for both conservative and liberal judicial activism.