First Appearance Representation - The Law Favors Pretrial Release

It is time for defenders to maximize using federal constitutional rights and state legal protections to their fullest.

Defense lawyers are not accustomed to finding the law on their side.  Surely not at suppression hearings when they argue to exclude police obtained evidence, at sentencing when they face mandatory punishment, at discovery when the law often prevents obtaining vital information, nor at jury selection when they cannot ask questions needed to select an impartial jury, to name but a few essential stages.

Maybe that frequent lament explains why many defenders miss the opportunity to argue what the law of pretrial release presents.  They confuse judicial bail practices with the law's support for restoring clients' liberty at first appearances.

Take the United States Supreme Court's constitutional rulings in Stack v. Boyle, 342 U.S. 1 (1951) and Salerno v. United States 481 U.S. 739 (1987).  Stack affirms an accused's Eighth Amendment constitutional right to pretrial release and a non-excessive, reasonably calculated bail to defendants posing no significant risk of flight.  Decades later, the Salerno Court emphasized that bail may be denied “in carefully limited circumstances” where a judicial officer finds “clear and convincing” evidence of a defendant's “dangerousness” to support remanding without bail.  See, Salerno.  Where government cannot establish a defendant's dangerousness and its only interest is in preventing the defendant's flight, the Salerno Court affirmed Stack's holding that bail must be set by a court at a sum designed to ensure that goal and no more.  Salerno, at 754.  Chief Justice Rehnquist's majority 5-4 ruling emphasized the necessity of constitutional safeguards to protect an accused's liberty. "In our society, liberty is the norm and detention before trial or without trial is the carefully limited exception."

Since most people charged with non-violent crimes do not represent a danger to others' safety,  Salerno embraces the Supreme Court's earlier Eighth Amendment ruling that entitles an accused to pretrial release on recognizance or a non-excessive bail. Stack v. Boyle is worthy of reading and use at first appearance.

In Stack, the U.S. Supreme Court reviewed the "principles governing allowance of bail" and reversed a trial court ordering $50,000 bond for each of 12 defendants charged with membership in the Communist Party during the height of the "Red Scare" period known as McCarthyism.  Id. at 7.  The Court held that ordering $50,000 bail for every defendant was an "arbitrary act [that] would inject into our own system of government the very principles of totalitarianism which Congress was seeking to guard against." Id. at 6. The Court declared that an accused's constitutional right to a non-excessive amount was part of a defendant's "traditional right to freedom before conviction." The Stack Court concluded that "[u]nless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Id. at 4.

The high court's reference to an accused's traditional right to freedom before trial and to the presumption of innocence applies directly to poor and low-income defendants appearing today before a judicial officer at initial appearances.  Judicial officers are free to reject release on recognizance and to condition release on the defendant's compliance, including posting a money bond, but they must meet Stack's constitutional standard for determining the contours of excessiveness.  "Bail set at a higher figure than an amount reasonably calculated to fulfill this purpose [of appearing in court] is excessive under the Eighth Amendment.” Id. at 5.  Stack rejected the trial court's bail amounts.

Today's defenders must assist judicial officers' determination of a reasonably calculated amount.  They must avoid requesting a “reasonable” amount (oh how that makes me cringe!).  Instead, they should assist the judicial officer apply the “reasonably calculated” standard that takes into account a defendant's financial circumstances and arrives at an amount necessary to ensure future appearance.   Defenders should refer to Justice Robert Jackson's majority opinion that explained judges are "not free to make the sky the limit" or to choose an amount in order that the defendant "remain in jail."  While a defendant is not "entitled to such bail as he can provide,” Justice Jackson declared an accused “is entitled to an opportunity to make in a reasonable amount."  The Stack Court asked judicial officers to consider the individual's role in the offense charged, evidence of criminality, financial ability to give bail, character and reliability to return to court.
Consequently, defenders must give added attention to clients' financial ability to post bail.  Educating judicial officers about an accused's limited economic resources may be the single most important contribution toward achieving a reasonably calculated bail that ensures the indigent defendant's return and avoids ordering an excessive amount that bears little relation to an accused's reality.  For instance, a lawyer should make the judicial officer aware that ordering $5,000 bond and requiring payment of $500 represents two weeks net take home pay for an employed defendant earning $10 hourly who contributes to family support; for the unemployed or disabled defendant, the $500 bondsman's fee or cash deposit bond comprises one half of monthly benefits.

STATE LAW.  Defenders should refer to their own state's laws and Rules that typically favor pretrial liberty and require imposing the least onerous condition(s) of release.  Defenders' examination of relevant rules, statutes and cases will likely reflect the same protections found for Maryland defendants.

Maryland Rule 4-216 (c) “entitles” most defendants to pretrial release either on recognizance or on condition or combination of conditions.  Only when the judicial officer determines that NO condition of release will reasonably ensure the defendant's appearance or safety of the victim, another person and the community, can the defendant be denied bail.

Rule 4-216 (e) (3) explains that when a judicial officer determines that the defendant should be released other than on personal recognizance, the judicial officer shall impose on the defendant the least onerous condition(s) to ensure the defendant's appearance and safety to the alleged victim, another person or the community.

Indigent and low-income defendants typically find the non-financial condition the least onerous.  When given a financial bond, many will remain in jail because they cannot pay the necessary money or collateral.  Those able to pay the bondsman's non-refundable 10% fee may be using money designated for rent, utilities and food, thus incurring additional consequences of concern.

When a judicial officer orders financial bond, the lawyer should consider the unsecured bond as least onerous and appropriate for clients having strong community ties.  An unsecured bond does not require the posting of money or property but leaves defendants liable should they fail to appear.  Additionally, the 10% cash deposit bond allows for recovery of the collateral when the case concludes.

In sum, the law empowers judicial officers to order a less onerous condition for releasing defendants when not ordering personal recognizance.  When defending poor and low-income clients who represent no clear and compelling safety risk, defenders ought to advocate, when appropriate for 1) non-financial conditions, which include parental or court supervision, imposing curfews, etc.; and 2) the unsecured financial bond when a condition is required.  For most defendants, the 10% refundable cash deposit bond also will be considerably less onerous than paying the non-refundable, 10% bondsman fee.

Researching case law also may provide defenders with additional legal arguments.  In Wheeler v. State, 160 Md. App. 566 (2003), Maryland's highest court followed Salerno and remanded the defendant without bail following proof showing "clear and convincing" evidence that he represented a significant danger to the victim, other individuals and to the public's safety.  The evidence consisted of recovering from his home 62 pounds of gunpowder, 16,000 rounds of ammunition and 22 weapons.  The Court concluded that no condition or combination could “reasonably protect against the danger that the defendant presented to [individuals] or to the community.” 

Salerno's and Wheeler's “clear and compelling evidence” of the defendant's dangerousness supports the “carefully limited exception” to an accused's right to pretrial release on recognizance or on conditions.  Absent such strong evidence, defenders should rely on the law and legal options to show clients' eligibility for release on the least onerous condition(s).