Case Law on Release

Eighth Amendment: Excessive bail shall not be required, nor excessive fine s imposed, nor cruel and unusual punishments inflicted.

Stack v. Boyle, 342 U.S. 1 (1951) – Bail set at a figure higher than an amount reasonably calculated to assure a defendant’s appearance in court is excessive under the Eighth Amendment. The court also ruled that the setting of bail must be done on an individualized basis.

Pretrial detention and right to bail

• Grimaud v. Commonwealth of Pennsylvania, Supreme Court of Pennsylvania, No. 126 MAP 2002 (2005) – Upheld an amendment to the state’s constitution that expands the circumstances for which defendant can be held without bail to include offenses that include a maximum sentence of life, or where the court concludes that no condition or combination of conditions can reasonably assure the safety of the community.
• Lavallee v. Justices in the Hampden Superior Court, Massachusetts Supreme Judicial Court, SJC-09268 (2004) – On a showing that no counsel is available to represent an indigent defendant despite good faith efforts, such a defendant may not be held in pretrial detention more than seven days.
• People v. Purcell, Illinois Supreme Court, No. 92739 (2002) – Struck down as unconstitutional a provision of the state’s pretrial detention statute that puts on a defendant the burden of demonstrating proof that his or her guilt is not evident, stating that that burden must be placed on the prosecution.
• Mendonza v. Commonwealth, Massachusetts Supreme Judicial Court, SJC-06957 (1996) - Upheld the state statute allowing pretrial detention of defendants charged with certain crimes who are deemed to be dangerous.
• Westerman v. Cary, Washington Supreme Court, No. 60383-9 (1994) - Upheld a district court's order that all persons charged with a domestic violence offense be held without bail pending their initial appearance in court.
• State v. Blackmer, Vermont Supreme Court, No. 93-149 (1993) - The trial court has total discretion to grant or refuse bail in cases involving offenses that under the state constitution do not have a right to bail - those punishable by life imprisonment where the evidence of guilt is great.
• Simms V. Oedekoven, Wyoming Supreme Court, No. 92-97 (1992) - Ruled unconstitutional the trial court's refusal to set bail in a larceny case because that court found that no condition or combination of conditions could reasonably assure appearance.
• U.S. v. Salerno, U.S. Supreme Court, 481 U.S. 739 (1987) - Upheld Bail Reform Act of 1986 authorizing pretrial detention of arrestees charged with serious offenses who are found to be a danger to the community.

Citation release in lieu of custody arrest

• State v. Brown, Ohio Supreme Court, 99 Ohio St. 3d 323-Ohio-3931 (2003) - Evidence obtained from a person arrested and taken into custody on a jaywalking offense must be suppressed because state law requires that such persons be released on citation.
• State v. Bayard, Nevada Supreme Court, 119 Nev. Adv. Op. No. 29 (2003) - Evidence obtained from a person arrested and taken into custody on a minor traffic violation must be suppressed because there was no basis for believing that the defendant would not appear on the citation.
• Atwater v. City of Lago Vista, U.S. Supreme Court, 532 U.S. 318 (2001) – Fourth amendment does not prohibit full custodial arrest for a non-jailable misdemeanor, in this case failure to wear a seat belt.
• State v. Laurence, Montana Supreme Court, No. 00-421 (2001) – Evidence obtained from a person arrested and taken into custody on a charge of minor in possession of alcohol must be suppressed because no circumstances existed that would allow the officer to make a custodial arrest rather than issue a citation.
• Commonwealth v. Williams, Pennsylvania Superior Court, No. 1433 (1990) - While a citation is usually issued for the offense of urinating in public, the police officer who arrested the defendant did not abuse the discretion accorded by law.
• Anela v. City of Wildwood, U.S. Court of Appeals for the Third Circuit, No. 85-5455, (1986) - The overnight detention of six persons arrested for violating a municipality's noise ordinance constituted a violation of their federal civil rights, noting that New Jersey Supreme Court Bail Rules specifically call for the use of a summons in such cases.

Risk Assessment: a tool used to quantify a defendant’s risk for release

• Alberti v. Sheriff of Harris County, 406 F.Supp (Southern District of Texas) (1975) – The court ordered local judges to adopt an objective point system so that their denial of release on recognizance would not be based on a “hunch.”

Bail setting hearing

Timing of the hearing

• Oviatt v. Pearce , U.S. Court of Appeals for the 9 th Circuit, No. 90-35146 (1992) – Affirmed a civil jury’s verdict against Multnomah County for failure to establish procedures to prevent pretrial defendants from “slipping through the cracks” despite evidence that ants were remaining detained for long periods of time before their initial court appearance.
• Riverside County et al., v. McLaughlin et al., U.S. Supreme Court, 500 U.S. 44 (1991) - A person arrested without a warrant must be brought before a judicial officer for a probable cause hearing within 48 hours of arrest.

Initial appearance by video

• Commonwealth of Kentucky v. Ingram , Kentucky Supreme Court, No. 1998-SC-1090-CL (2001) – Upheld the use of a “properly functioning video arraignment system.”
• Larose v. Superintendent, Hillsborough County Correction Administration, Vermont Supreme Court, No. 96-740 (1997) - Teleconferencing of arraignments and bail hearings does not violate a defendant's due process rights under the U.S. and Vermont Constitutions.

Conditions of pretrial release

Limits on setting conditions

• Minnesota v. Stenger, Minnesota Court of Appeals, A05-1629 (2006) – Courts must tie pretrial release conditions to assuring court appearance and public safety. In this case, the defendant was ordered as a condition of release not to possess or use drugs or alcohol and not to possess firearms. The court found that there was noting in the record to show why these conditions were necessary.
• Colorado v. Rickman, Colorado Court of Appeals, No. 04CA0501 (2006) – A pretrial program cannot set conditions of pretrial release, only a court can.
• Williams v. Alaska, Court of Appeals of Alaska, No. A-9139 (2006) – Struck down as unconstitutional a law that says that defendants charged with domestic violence cannot return to the residence of the alleged victim while the defendant is on pretrial release.
• Ex Parte Jean Romero, Court of Appeals of Texas, No. 05-05-01398 (2005) – A judge cannot order, as a condition of pretrial release, that a defendant provide child care for her granddaughter.
• Martell v. The County Court of Summit, Colorado Court of Appeals, No. 91CA1521 (1992) – Ruled that defendant charged with domestic violence could not be ordered to participate in a domestic violence counseling program as a condition of pretrial release. Also ruled that the condition that the defendant “and his agents” were to have no contact with the victim or witnesses prevented the defendant’s attorney from investigating the case, and was therefore an impermissible condition.
• Gray v. Superior Court, Court of Appeal of California, First District, Division Three, A107367 – A trial court violated a physician’s due process rights by prohibiting him from practicing medicine as a condition of pretrial release without prior notice or the opportunity to be heard.

Drug testing

• U.S. v. Scott , U.S. Court of Appeals for the 9 th Cir,. No. 04-190090 (2005) – Drug testing as a condition of pretrial release was not reasonable without evidence showing that drug use is related to higher risk of failure to appear in court.
• Hernandez v. Roth, Florida Court of Appeals, No. 3D04-869 (2004) – Drug testing as a condition of pretrial release is reasonable.
• Reyes v. McCray, Third District Court of Appeal of Florida, No. 3D04-806 (2004) – The court had no authority to order a defendant to submit to an immediate drug test and then revoke his bond when the test was positive.
• Steiner v. State of Indiana, Court of Appeals of Indiana, Fifth District, No. 47A05-1003-CR-123 (2002) – A trial court cannot impose random drug testing as a condition of pretrial release without individualized suspicion that the defendant will use drugs while on pretrial release.
• Grant v. United States, Court of Appeals for the District of Columbia, 734 A. 2d 174 (1999) - A defendant with a condition of pretrial release to report twice a week for drug testing can he held in contempt of court for violating that condition by testing positive or missing testing appointments.
• Oliver v. U.S., Court of Appeals for the District of Columbia, No. 95-CO-434 (1996) - Upheld the constitutionality of drug testing as a condition of pretrial release.
• In re York, California Supreme Court, No. S032327 (1995) - Imposition of random drug testing as a condition of pretrial release does not violate the defendant's rights against unreasonable search and seizure.

Violating conditions

• Weaver v. Kentucky, Supreme Court of Kentucky, No. 2003-SC-0353-DG (2005) – A defendant on home detention as a condition of pretrial release can be charged with escape after violating the condition.
• State Ex Rel. Jacobus v. State, Wisconsin Supreme Court, No. 94-2995 (1997) - Wisconsin statutes allow the state to prosecute an individual for bail jumping because he violated a condition of bond.
• U.S. v. Baxley , U.S. Court of Appeals for the 9 th Circuit, No. 90-10620 (1992) – A person who was ordered to reside in a halfway house as a condition of pretrial release was not “in custody” for purposes of the Federal escape statute.

Financial bail

Excessive bail

• Stack v. Boyle, 342 U.S. 1 (1951) – Bail set at a figure higher than an amount reasonably calculated to assure a defendant’s appearance in court is excessive under the Eighth Amendment. The court also ruled that the setting of bail must be done on an individualized basis.

Limits on use of non-financial bail

• Florida v. Raymond, Supreme Court of Florida, No. SC03-1263 (2005) – Struck down a law that limited judges from setting only financial bail at first appearance for defendants charged with specified “dangerous crimes.”

Discretion in bail-setting

• Clark v. Hall, Court of Criminal Appeals of Oklahoma, 2002 OK CR 29 (2002) – Ruled unconstitutional a statute that set bail at a pre-determined, non-discretionary amount and disallowed non-financial release in prostitution cases.

Setting “cash-only” bail

• Vermont v. Hance , Vermont Supreme Court, No. 2006-255 (2006) – Struck down as unconstitutional a law that permitted imposition of “cash-only” bails.
• Fragoso v. Feil, Arizona Court of Appeals, Division Two, 2 CA-SA-2005-0001 (2005) – Under Arizona law, a bail-setting judge has the authority to set a “cash-only” bail if it is deemed necessary to reasonably assure the defendant’s appearance in court.
• People v. Hooper, Colorado Court of Appeals, Div. A, No. 04CA1794 (2005) – Upheld the decision of the trial court to impose a “cash-only” bail, stating that the trial court had made a detailed finding of facts to support the decision.
• Smith v. Leis, Ohio Supreme Court, 106 Ohio St3d 309 (2005) – When a bail is set, the defendant has the option of which type of bail to post.
• Ex Parte Singleton, Court of Criminal Appeals of Alabama, CR-03-1981 (2004) – Setting a “cash-only” bail does not violate the state constitutional requirement to bail by “sufficient sureties.
• Smith v. City of Hammond, U.S. Court of Appeals for the 7 th Circuit, No. 04-1260 (2004) – Threw out a suit by a bail bondsman alleging that the trial court was violating the bondsman’s constitutional rights by setting cash-only bails.
• State v. Briggs, Supreme Court of Iowa, No. 43 / 01-1914 (2003) – Notwithstanding the “sufficient sureties” wording in the state constitution, a defendant does not have a constitutional right to obtain a commercial surety bond; the court may impose a “cash-only” bail.
• State v. Brooks, Minnesota Supreme Court, 604 N.W.2d 345 (2000) - When a court sets a financial bail, the court may not limit the posting of that bail to a "cash-only" option.

Bail bondsmen

• Kansas v. Burhans, Kansas Supreme Court, No. 90,441 (2004) – A bail bondsman does not have the right to enter the home of a third party in search of a fugitive without permission unless there is reasonable basis for believing that the fugitive is present.
• Commonwealth v. Ray, Massachusetts Supreme Judicial Court, No. SJC-08546 (2001) – Bail-setting judges may set one bail amount if the bond is posted by a bail bondsman and another amount of the bond is posted by case.