UNITED STATES CONSTITUTION: EIGHTH AMENDMENT
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. [Emphasis added.]
CONSTITUTION OF THE STATE OF OHIO, ADOPTED MARCH 10, 1851
Section 9. Bailable Offenses; Of Bail, Fine, and Punishment. All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.
COMPREHENSIVE CRIME CONTROL ACT OF 1984BAIL REFORM ACT OF 1984
Section 3141. Release and detention authority generally
(a) Pending Trial. A judicial officer who is authorized to order the arrest of a person pursuant to section 3041 of this title shall order that an arrested person who is brought before him be released or detained, pending judicial proceedings, pursuant to the provisions of this chapter.
(b) Pending Sentence or Appeal. A judicial officer of a court of original jurisdiction over an offense, or a judicial officer of a Federal appellate court, shall order that, pending imposition or execution of sentence, or pending appeal of conviction or sentence, a person be released or detained pursuant to the provisions of this chapter.
Section 3142. Release or detention of a defendant pending trial
(a) In General. Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be:
(1) released on his personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of subsection (b);
(2) released on a condition or combination of conditions pursuant to the provisions of subsection (c);
(3) temporarily detained to permit revocation of conditional release, deportation, or exclusion pursuant to the provisions of subsection (d); or
(4) detained pursuant to the provisions of subsection (e).
(b) Release on Personal Recognizance or Unsecured Appearance Bond. The judicial officer shall order the pretrial release of the person on his personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person not commit a Federal, State, or local crime during the period of his release, unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.
(c) Release on Conditions. If the judicial officer determines that the release described in subsection (b) will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, he shall order the pretrial release of the person:
(1) subject to the condition that the person not commit a Federal, State, or local crime during the period of release; and
(2) subject to the least restrictive further condition or combination of conditions, that he determines will reasonably assure the appearance of the person as required and the safety of any other person and the community, which may include the condition that the person:
(A) remain in the custody of a designated person ***;
(B) maintain employment, or, if unemployed, actively seek employment;
(C) maintain or commence an educational program;
(D) abide by specified restrictions on his personal association, place of abode, or travel;
(E) avoid all contact with an alleged victim ***;
(F) report on a regular basis to a designated law enforcement agency ***;
(G) comply with a specified curfew;
(H) refrain from possessing a firearm ***;
(I) refrain from excessive use of alcohol, or any use of a narcotic drug ***;
(K) execute an agreement to forfeit upon failing to appear as required, such designated property including money ***;
(L) execute a bail bond with solvent sureties in such amount as is reasonably necessary to assure the appearance of the person as required;
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(N) satisfy any other condition that is reasonably necessary to assure the appearance of the person ***. The judicial officer may not impose a financial condition that results in the pretrial detention of the person. The judicial officer may at times amend his order to impose additional or different conditions of release.
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(e) Detention. If, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial.
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(f) Detention Hearing. The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) will reasonably assure the appearance of the person as required and the safety of any other person and the community in a case:
(1) upon motion of the attorney for the Government, that involves:
(A) a crime of violence;
(B) an offense for which the maximum sentence is life imprisonment or death;
(C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances import and Export Act (21 U.S.C. 951 et seq.), or section 1 of the Act of September 15, 1980 (21 U.S.C. 955a); or
(D) any felony committed after the person had been convicted of two or more prior offenses described in subparagraphs (A) through (C), or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) if a circumstance giving rise to Federal jurisdiction had existed; or
(2) upon motion of the attorney for the Government or upon the judicial officer's own motion, that involves:
(A) a serious risk that the person will flee;
(B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.
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(g) Factors to be Considered. The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning:
(1) the nature and circumstances of the offense charged, including whether the offense if a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including;
(A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings;
(B) whether, at the time of the current offense or arrest, he was on probation, a parolee, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
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(h) Contents of Release Order. In a release order issued pursuant to the provisions of subsection (b) or (c), the judicial officer shall:
(1) include a written statement that sets forth all the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person's conduct;
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(i) Contents of Detention Order. In a detention order issued pursuant to the provisions of subsection (e), the judicial officer shall:
(1) include written findings of fact and a written statement of the reasons for the detention;
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Section 3143. Release or detention of a defendant pending sentence or appeal
(a) Release or Detention Pending Sentence. The judicial officer shall order that a person who has been found guilty of an offense and who is waiting imposition or execution of sentence, be detained, unless the judicial officer finds:
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to section 3142(b) or (c); and (2) that the appeal is to for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
If the judicial officer makes such findings, he shall order the release of the person in accordance with the provisions of section 3142(b) or (c).
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Section 3145. Review and appeal of a release or detention order
(a) Review of a Release Order. If a person is ordered released by a magistrate, or by a person other than a judge of court having original jurisdiction over the offense and other than a Federal appellate court:
(1) the attorney for the Government may file,. . . a motion for revocation of the order or amendment of the conditions of release; and
(2) the person may file, with the court having original jurisdiction over the offense, a motion for amendment of the conditions of release.
The motion shall be determined promptly.
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OHIO REVISED CODE, TITLE 29: CRIMES - PROCEDURE
Section 2937.23 Amount of bail. In cases of felony, the amount of bail should be fixed by judge or magistrate; in cases of misdemeanor or ordinance offense it may be fixed by judge, magistrate, or clerk of the court and may be in accordance with schedule previously fixed by judge or magistrate or, in cases when the judge, magistrate, or clerk of the court is not readily available, bail may be fixed by the sheriff, deputy sheriff, marshal, deputy marshal, police officer, or jailer having custody of the person charged, shall be in accordance with a schedule previously fixed by the judge or magistrate, and shall be taken only in the county courthouse, or in the municipal or township building, or in the county or municipal jail. In all cases it shall be fixed with consideration of the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his appearing at the trial of the case.
Determination of What Constitutes Excessive Bail
STACK v. BOYLE, Supreme Court of the United States (1951), 342 U.S. 1, 72 S.Ct. 1
FACTS:
The twelve defendants were indicted for violating the Smith Act, 18 U.S.C. sections 371 and 2385 which involved advocating the overthrow of the government of the United States and conspiracy to do the same. Shortly after their arrest in New York, the court set bail at amounts ranging from $2,500 to $10,000. One of the petitioners successfully moved for a reduction in bail prior to his removal to California. Upon the prosecution's request that the amounts of bail be increased, the bail was eventually set at $50,000 each.
The petitioner filed a motion for a reduction in bail on the basis that the amount as determined violated the excessive bail prohibition of the Eighth Amendment. In support of the motion for bail reduction, the petitioners cited their varying financial situations, family relationships, health, prior criminal records, and other information. The prosecution argued that since other persons previously convicted of violating the Smith Act had jumped bail, a high bail was absolutely necessary for these defendants.
The District Court denied the motion to reduce bail and denied a motion for a writ of habeas corpus. The two decisions were affirmed by the Court of Appeals and were presented to the Supreme Court which granted certiorari.
PROCEDURAL QUESTION:
In a federal prosecution must the determination of the amount of bail take into consideration the minimum amount of security that will cause the defendant to appear and stand trial and submit to sentence if found guilty?
HELD: Yes.
RATIONALE:
Mr. Chief Justice VINSON delivered the opinion of the Court.
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From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, the present Federal Rules of Criminal Procedure, Rule 46(a)(1), 18 U.S.C.A., federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, (1895) 156 U.S. 277, 285, 15 S.Ct. 450, 453, 39 L.Ed. 424. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.
The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex parte Milburn, (1835) 9 Pet. 704, 710, 9 L.Ed. 280. Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is "excessive" under the Eighth Amendment. See United States v. Motlow, 10 F.2d 657 (1926) (opinion by Mr. Justice Butler as Circuit Justice of the Seventh circuit).
Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. The traditional standards as expressed in Federal Rules of Criminal Procedure are to be applied in each case to each defendant. In this case petitioners are charged with offenses under the Smith Act and, if found guilty, their convictions are subject to review with the scrupulous care demanded by our Constitution. Dennis v. United States, (1951) 341 U.S. 494, 516, 71 S.Ct. 857, 870, 95 L.Ed. 1137. Upon final judgment of conviction, petitioners face imprisonment of not more than five years and a fine of not more than $10,000. It is not denied that bail for each petitioner has been fixed in a sum much higher than usually imposed for offenses with like penalties and yet there has been no factual showing to justify such action in this case. The Government asks the courts to depart from the norm by assuming, without the introduction of evidence, that each petitioner is a pawn in a conspiracy and will, in obedience to a superior, flee the jurisdiction. ...
If bail in an amount greater than that usually fixed for serious charges of crimes is required in the case of any of the petitioners, that is matter to which evidence should be directed in a hearing so that the constitutional rights of each petitioner may be preserved. In the absence of such a showing, we are of the opinion that the fixing of bail before trial in these cases cannot be squared with the statutory and constitutional standards for admission to bail.
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The Court concludes that bail has not been fixed by proper methods in this case and that petitioner's remedy is by motion to reduce bail, with right of appeal to the Court of Appeals. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded to the District Court with directions to vacate its order denying petitioner's applications for writs of habeas corpus and to dismiss the applications without prejudice. Petitioners may move for reduction of bail in the criminal proceeding so that a hearing may be held for the purpose of fixing reasonable bail for each petitioner.
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By Mr. Justice JACKSON, whom Mr. Justice FRANKFURTER joins.
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The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense. To open a way of escape from this handicap and possible injustice, Congress commands allowance of bail for one under charge of any offense not punishable by death. Fed. Rules Crim. Pro. 46(a)(1) providing: "A person arrested for an offense not punishable by death shall be admitted to bail..." before conviction.
Admission to bail always involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice. We know that Congress anticipated that bail would enable some escapes, because it provided a procedure for dealing with them. Fed. Rules Crim. Proc. 46(f).
In allowance of bail, the duty of the judge is to reduce the risk by fixing an amount reasonably calculated to hold the accused available for trial and its consequence. Fed. Rules Crim. Proc. 46(c). But the judge is not free to make the sky the limit, because the Eighth Amendment to the Constitution says: "Excessive bail shall not be required. . . ."
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Notes
1. In Stack, the possibility of bail existed under federal law. As a consequence, the courts had to determine the appropriate level of bail. Hypothetically, what factors could you suggest which would vary the amounts of bail for each of the defendants? Hypothetically, what factor(s) would cause you as a judge to deny bail to one of the defendants?
2. Traditionally, in arriving at a bail determination, judges have looked to the defendant's relationship to the community, including business, family, and religious ties. Consideration is given to the seriousness of the crime, the penalty, if convicted, the strength of the prosecution's case, whether the defendant would intimidate potential witnesses, prior bail history, if any, relative wealth of the defendant, and the chance that the defendant would commit new crimes while on bail. At best, the decision concerning whether or not to grant bail and determining the amount is a calculated attempt to foretell the defendant's conduct in the future.
Attempts at Bail Reform Do Not Violate Equal Protection
SCHILB v. KUEBEL, Supreme Court of the United States (1971), 404 U.S. 357, 92 S.Ct. 479
FACTS:
In Belleville, Illinois, appellant Schilb was charged with two criminal counts involving motor vehicle violations. Pursuant to the Illinois bail statutes, Schilb paid $75 in cash to secure his pretrial release. The complete bail was $750 of which only 10% had to be paid. The disposition of the traffic cases entitled Schilb to the return of his $75 bail deposit minus 10% of the deposit (1% of the total bail of $750.).
Distressed with losing $7.50, Schilb initiated a class action suit attacking the Illinois bail system on Fourteenth Amendment Equal Protection and Due Process grounds. John Schilb contended that the 1% retained by the state was imposed only on one segment of the class of defendants gaining pretrial release; that it was imposed only on the poor and non-affluent and not on the rich and affluent; and that its imposition on a defendant later found innocent amounts to a court cost assessed against an innocent person. The trial court upheld the constitutionality of the bail reform statute and the Supreme Court of Illinois affirmed. The Supreme Court of the United States granted certiorari.
PROCEDURAL QUESTION:
Where pretrial release may be secured by personal recognizance, execution of a full amount completely refundable secured bond, or a 10% payment of the bond of which 10% will be retained by the state, does such statutory procedure violate either or both the equal protection and/or due process clause of the Fourteenth Amendment?
HELD: No.
RATIONALE:
Mr. Justice BLACKMUN delivered the opinion of the Court.
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Prior to 1964 the professional bail bondsman system with all its abuses was in full and odorous bloom in Illinois. Under that system the bail bondsman customarily collected the maximum fee (10% of the amount of the bond) permitted by statute ... and retained that entire amount even though the accused fully satisfied the conditions of the bond. See People ex rel. Gendron v. Ingram, 34 Ill2d 623, 626, 217 N.E.2d 803, 805 (1966). Payment of this substantial "premium" was required of the good risk as well as the bad. The results were that a heavy and irretrievable burden fell upon the accused, to the excellent profit of the bondsman, and that professional bondsmen, and not the courts, exercised significant control over the actual workings of the bail system.
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II
Article 110 of the 1963 Code, as it read at the time Schilb was arrested and charged, provided that an eligible accused could obtain pretrial release in one of three ways:
(1) Under Section 110-2 he may be released on his personal recognizance.
(2) Under Section 110-7 he may execute a bail bond an deposit with the clerk cash equal to only 10% of the bail or $25 whichever is the greater. When bail is made in this way and the conditions of the bond have been performed, the clerk returns to accused 90% of the sum deposited. The remaining 10% (1% of the bail) is retained by the clerk "as bail bond costs."
(3) [Full amount cash, bond, or stock bail.]
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III
The Court more than once has said that state legislative reform by way of classification is not to be invalidated merely because the legislature moves one step at a time. "The prohibition of the Equal Protection Clause goes no further than the invidious discrimination." Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). "Legislatures are presumed to have acted constitutionally ... and their statutory classifications will be set aside only if no grounds can be conceived to justify them. ... With this much discretion, a legislature traditionally has been allowed to take reform 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.'" McDonald v. Board of Section Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969). ...
Bail, of course, is basic to our system of law, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951); Herzog v. United States, 75 S.Ct. 349, 351, 99 L.Ed. 1299, 1301 (1955) (opinion of Douglas, J.), and the Eighth Amendment's proscription of excessive bail has been assumed [although never decided] to have application to the States through the Fourteenth Amendment. (Citations omitted.)
IV
With this background, we turn to the appellants' primary argument. It is threefold: (1) that the 1% retention charge under Section 110-7(f) is imposed on only one segment of the class gaining pretrial release; (2) that it is imposed on the poor and nonaffluent and not on the rich and affluent; and (3) that its imposition with respect to an accused found innocent amounts to a court cost assessed against the not-guilty person.
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A. It is true that no charge is made to the accused who is released on his personal recognizance. We are advised however, that this was also true under the old (pre-1964) system and that "Illinois has never charged people out on recognizance." ...
There is also, however, no retention charge to the accused who deposits the full amount of cash bail or securities or real estate. Yet the administrative costs attendant upon the 10% deposit and that upon the full deposit are, by the stipulation, "substantially the same" with, indeed, any higher costs incurred with respect to the full deposit.
This perhaps is a more tenuous distinction, but we cannot conclude that it is constitutionally vulnerable. One who deposits securities or encumbers his real estate precludes the use of that property for other purposes. And one who deposits the full amount of his bail in cash is dispossessed of a probative asset throughout the period of the deposit; presumably, at least its interim possession by the State accrues to the benefit of the State.
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B. The poor-man-affluent-man argument centers, of course, in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and in the many later cases that "reaffirm allegiance to the basic command that justice be applied equally to all persons." Williams v. Illinois, 399 U.S. 235, 241, 90 S.Ct. 2018, 2022, 26 L.Ed.2d 586 (1970).
In no way do we withdraw today from the Griffin principle. That remains steadfast. But it is by no means certain, as the appellants suggest, that the 10% deposit provision under Section 110-7 is a provision for the benefit of the poor and the less affluent and that the full-deposit provision of Section 110-8 is one for the rich and the more affluent. It should be obvious that the poor man's real hope and avenue for relief is the personal recognizance provision of Section 110-2. ... The affluent, more aware of and more experienced in the marketplace, may see the advantage, in these days of high interest rates, in retaining the use of 90% of the bail amount. A 5% or greater return on this 90% in a short period of time more than offsets the 1% retention charge. In other words, it is by no means clear that the route of Section 110-8 is more attractive to the affluent defendant than the Section 110-7 route. The situation, therefore, wholly apart from the fact that appellant Schilb himself has not pleaded indigence, is not one where we may assume that the Illinois plan works to deny relief to the poor man merely because of his poverty.
C. The court-cost argument is that the person found innocent but already "put to the expense, disgrace and anguish of a trial" is "then assumed a cost for exercising his right to release pending trial." ... Certainly Section 110-7 is not subject to attack for vagueness or for lack of standards. ... Instead, Section 110-7 authorizes retention of the 1% as "bail bonds costs." This is what that description implies, namely, an administrative cost imposed upon all those, guilty and innocent alike, who seek the benefit of Section 110-7. This conclusion is supported by the presence of the long-established Illinois rule against the imposition of costs of prosecution upon an acquittal or discharged criminal defendant.
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VI
We refrain from nullifying this Illinois statute that, with its companion sections, has brought reform and needed relief to the State's bail system. The judgment of the Supreme Court of Illinois is affirmed.
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Notes
1. The Illinois legislature felt that the bail system would be better served if the practice of bail with private bondsmen were reduced. In an effort to finance the program, the state retained some of the money as administrative costs. Does the Illinois bail scheme discriminate against poor persons? Would a wealthy defendant choose to pay or pledge the full amount? Would circumstances dictate the choice of method of financing bail? What about discrimination based on wealth where virtually all poor persons chose the state plan whereby some of the money was always retained as administrative costs?
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