Bail Flashcards
Bail Generally
8th amendment says that “excessive bail shall not be required.” This has been incorporated via 14th amendment so is thus applicable to states too.
Bail refers to the practice of requiring the defendant to put up something of value (money or property) to the court with the understanding that if the defendant fails to come back to trial then the court gets that property. This is supposed to incentivize defendants to come back.
Even if you get convicted but you come back to court each time you’re supposed to you get your property back.
If you fail to come to court, there’s usually a grace period. In NY, you have to appear and explain why. Usually get a grace period of 30 days.
Types of Bail
No bail - in NY, its ROR - release on recognizance - defendant promises to come back
Remand - typical in a murder case - no bail at all b/c incentive to flee is so strong can’t be trusted to come back
Cash - if its 1k, you put in 1k and you’re out
Bonds - appearance bond/unsecured bond in NY - piece of paper where defendant says if i don’t show up, ill pay X amount. Popular with defense attorneys but not judges b/c there’s no incentive to come back
Partially secured bond - if I don’t come back, ill pay 10k, but here’s a down payment of 1k.
Property bonds - defendant puts up a specified item or property.
Bail bonds -bail bondsman write bonds for defendant that says if defendant doesn’t come through ill pay his bond (frowned upon now). Are only allowed to charge a regulated rate and get to keep 3%. One of the better ways of getting loans for bonds. \
Bail also has non-monetary conditions - don’t have any weapons, no drugs/alcohol, sometimes required to enter a treatment program, curfews, have to live with a guardian/get an ankle bracelet/stay away from certain people/order of protection/this is all to ensure that they don’t get into more trouble and will be able to come back
Pre trial supervision - social service agencies that supervise defendants, that they’re going to school/work/reporting to pre trial services
Is bail fair?
Is it fair to punish someone by bail before they are convicted? Does this conflict with the presumption of innocence? How can you punish someone for something they might do?
NY Bail
In NY, it is not proper to consider future dangerousness when considering bail b/c it is inconsistent with the presumption of innocence (this is not the case on the federal level). Does not follow Salerno.
Courts are not supposed to consider danger to the community as a factor in
making a bail determination. However, judges are sensitive to political
pressure and public appearances. Other factors:
1. Seriousness of crime
2. Extent of criminal record
3. Strength of case
4. Personal background and ties to the community
5. Prior failures to appear
6. [in some states, not NY], potential danger to the community.
Bail Considerations
How serious is the crime? If the crime is really serious and carries a heavy penalty, then the defendant knows that if convicted, they will go to jail for a long time and has a greater incentive to run away, thus higher bail
Minor crime with no real risk of prison low bail or no bail
Defendant’s record. If the defendant has prior felony convictions, this increases the probability that they will get a higher sentence and thus higher bail. If first time offender, lower bail or release.
Strength of the case - prosecutors want to show that it is a strong case which increases the chance that the defendant will be convicted and will have bigger reason to run away, thus higher bail. Defense will argue that case is weak for certain reasons, doesn’t seem like the case is strong and will result to conviction, lower bail.
Prior failures to appear (as identified by bench warrants) high bail
No prior failures to appeal (low bail or no bail)
Roots in the community (if you have family/property/career in a palace, not likely to leave it all, but if no roots, much more likely to flee)
Fed court: issue of public safety/danger to others
Stack v. Boyle
RULE: Danger doesn’t matter here only risk of return. Bail has to be set by a case by case basis and amount has to be calculated so that the defense can return for trial, no more than needed
2 defendants all charged with violating Smith Act (advocating for communism). Court set bail for all of them at 50k (this was in the 50s so high high amount). No real showing of flight risk nor other factors. SCOTUS reverses and equates bail with presumption of innocence. Overruled by Salerno.
US v. Salerno
Rule: Federal courts can consider dangerousness to community when setting bail
Government must prove that the individual was potentially dangerous.
2. The Bail Reform Act permits the government to retain an arrestee
pending trial if it can demonstrate by clear and convincing evidence at
an adversary hearing that no release conditions reasonably will assure
the safety of another person or the community.
a. The government has a compelling interest in the safety of its
people.
indicted for a conspiracy to commit murders - held on public safety grounds. It is constitutional to hold someone under bail for the safety of the community - this is not a form of punishment but rather a regulatory measure to protect the community. Allows a judge to consider dangerousness.
Preventive detention
idea that we use bail to hold someone to prevent them from committing other crimes. For most people, crimes increase with each subsequent crime. Most people don’t go from 0 to murder.
Law Enforcement Perspective
Law enforcement thinkers - a person who has been charged with a serious case is not presumed to be innocent - if they’ve been indicted then there has been a finding of probable cause and the presumption of innocence is an issue for trial
