Why Was Joseph Duncan On The Streets?

This is a partial transcript from "The O'Reilly Factor," July 5, 2005, that has been edited for clarity.

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KASICH, GUEST HOST: Continuing now with our coverage of this unbelievable story out of Idaho. 42-year-old Joseph Duncan (search) has been charged with kidnapping Shasta Groene (search). But why was this convicted sex offender out on the streets anyway?

Here's his criminal history. In 1980, when he was just 16-years old, Duncan was convicted of abducting and sexually assaulting a 14-year-old boy. He served 14 years in prison in Washington state.

In 1997, he returned to prison for violating his parole. And just this past March in Minnesota, he was charged with criminal sexual conduct for approaching two kids at a playground, pulling down the pants of a 7- year-old boy, and touching him.

But one month later, Judge Thomas Schroeder (search) set bail at $15,000. And Duncan was back out on the street. Here's what the judge had to say about that decision.

(BEGIN VIDEO CLIP)

THOMAS SCHROEDER, MINNESOTA DISTRICT JUDGE: He was going to be out here. And you have limited information. And so you set it in an amount that you think is appropriate.

UNIDENTIFIED MALE: Were you aware that he was a level three sex offender before you set the bail?

SCHROEDER: I don't recall what I recall because I don't exactly recall setting the bail. I mean, looking back, it probably would have been quite a bit higher.

(END VIDEO CLIP)

KASICH: With us now is FOX News senior judicial analyst Judge Andrew Napolitano, author of the book "Constitutional Chaos."

Judge, this is impossible.

ANDREW NAPOLITANO, JUDGE, FOX NEWS SENIOR JUDICIAL ANALYST: It sounds as though it's a real breakdown in the system. This judge must have been ignorant of Duncan's background. A 20-year sentence for raping and sodomizing a 14-year-old boy, of which he served 14 years.

There's no way you would give a $15,000 bail for a similar sexual crime.

KASICH: All right. Well, wait a minute.

NAPOLITANO: That shouldn't (INAUDIBLE).

KASICH: Let's forget about the earlier one. Let's just start on this one.

NAPOLITANO: He should have known...

KASICH: This one — but wait a minute. I'm going to get to the other one. But let's start on this one. Here's a guy assaulting a 7- and a 9- year-old and they give him $15,000 bail? Forget the last one...

NAPOLITANO: I agree with you. The bail is way too low. The bail should have been so high as to guarantee that he was not out to do this again.

But let me tell you, the prosecutor only asked for $2,500.

KASICH: That’s, I mean...

NAPOLITANO: Just as crazy. The prosecutor should have asked for 10 times that amount.

KASICH: Why would the prosecutor not ask for, you know, $500,000?

NAPOLITANO: I suspect because it was another state, the prosecutor and the judge, the judge that you just showed in the clip, were ignorant of the prior crimes.

KASICH: All right, but wait a minute.

NAPOLITANO: And they can't be in this system.

KASICH: Look, when I came in today to do "The Factor," I was thinking, OK, people make mistakes. Right? Maybe this judge made a mistake.

But here's the problem with that. You know, it's not like these sex crime problems haven't been front page in headlines for the last year. I mean, if somebody comes to your courtroom, right? And they say, well, this guy was assaulting a 7- and a 9-year-old boy, wouldn't the first question be, what's his record?

NAPOLITANO: Right. You have to know the record. And knowledgeable of that record, you wouldn't have given any bail. You would have known that this human being is so dangerous, he is not entitled to bail, because no number, even if he could meet it, would assure his return.

His compulsion to commit these horrific crimes is beyond his ability to control them. So he cannot be freed.

KASICH: Judge, you know, we looked at — we had Lunde (search), we had Lunsford (search).

NAPOLITANO: Yes.

KASICH: It's like every week I've got another story about this going on. And it's just keep happening. Are there so many of these people that are, you know, going through the cracks in the system? What's going on?

NAPOLITANO: It seems like there is. But here's what should have happened. If the judge asks for the criminal history and doesn't get it, he doesn't fix bail.

KASICH: Right.

NAPOLITANO: He sends the prisoner back to jail until he gets it.

KASICH: But he didn't even ask.

NAPOLITANO: Well, he should have asked. And the prosecutor should have given it to him.

The prosecutor has an interest in maintaining public safety. He wants bad guys locked up. He obviously — we're looking at the judge, not the prosecutor — he obviously did not know of this guy's priors or he wouldn't have asked for just $25,000.

KASICH: Well, you know what? I don't know that. You know, I think we're getting information. We should have the judge come on and say.

But look, I think we have information where they're saying no, no, he did have an idea. Now maybe he didn't. We'll give him the benefit of the doubt.

NAPOLITANO: Well, but...

KASICH: But there's no excuse for not finding out what this guy's record is. (INAUDIBLE).

NAPOLITANO: Correct. And let's take the worst case scenario. If he knew about the background...

KASICH: Yes.

NAPOLITANO: ...and fixed the bail at $15,000, he's not worthy to be fixing bails. He should try small claims cases, because he set a monster free. And the monster struck again.

KASICH: Is part of this, you know, look, I got out of politics, judge, because frankly you can be in it too long. You left the bench. You can be in it too long.

NAPOLITANO: Right.

KASICH: Do these people just get in and get in and stay in? I mean, that's what happens, isn't it? It's the casualness.

NAPOLITANO: He's been re-elected four times.

KASICH: Ninety-nine percent of the vote.

NAPOLITANO: Right. He runs for office every four years. It's obviously nobody opposes him.

Now he may have done wonderful good as a judge, but a chain is as strong as its weakest link. He allowed this monster out. The monster struck, apparently killed young Dylan because the bail was too low. It's unforgivable.

KASICH: Are we just going to keep reporting on this? When are we going to get some answers to this? I mean, look, there's sex offenders living in all these neighborhoods. People don't know about it. They move from state to state. I mean, what's it going to take?

NAPOLITANO: Right.

KASICH: You can't do it state by state, can you?

NAPOLITANO: Well, I think it's going to be done state by state. I don't think the Feds wants to spend the money.

There are some states — Florida and New Jersey are now requiring the monitoring for the rest of your life. For violent sex offenders, you know, there's violent and nonviolent, this obviously is the highest degree of violence, rape, sodomy and murder. If he had had that bracelet, I don't know that this would have happened. If it happened, we would have caught him before six weeks.

KASICH: Well, look judge, they just passed this highway bill. Do you know what pork is?

NAPOLITANO: Oh, sure.

KASICH: And that's all they do. They put billions of dollars into pork down there, but not a dime to take care of this kind of a problem?

NAPOLITANO: On the "Big Story" earlier tonight, we reported about Martha Stewart (search) and her ankle bracelet. The government had better monitoring of Martha Stewart than it did of this monster. And their crimes don't compare at all.

KASICH: See, I think at the end of the day, you're going to have to have colonies. You're going to have to have the GPS band. And you're going to have civil confinement. Where if they are a level 6, they never get released.

NAPOLITANO: Unfortunately, it's coming to that. Because I mean, we don't seem to be able to control it any other way.

KASICH: Thank God it's coming to that.

NAPOLITANO: I say unfortunately. It's going to cost a fortune, but we have to do it.

KASICH: Well...

NAPOLITANO: Because the children have to be protected.

KASICH: The government has to have some priorities. If they cut out the pork, believe me, there's plenty of money to help take care of this. Judge, I want to thank you.

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