Saturday, December 24, 2016

Presumptive Bail

State v. Kane, 2016 VT 121

By Amy E. Davis

Hell hath no fury like a woman denied bail. In 2014, Defendant pled guilty to custodial interference and was sentenced to 2-5 years, all suspended except one year. In August 2016, her probation officer filed a probation violation complaint alleging that Defendant had failed to meet with her PO, notify her PO of a change in address, obey a curfew, etc. Also, Defendant had made some statements to an Easter Seals worker to the effect of, “What happened with Jody Herring is understandable.” (I assume most of our reader base also reads the news, so I won’t tell that story here). Defendant also made some suicidal statements to the Sheriff’s department.

The next day, Defendant was arraigned on the probation violation complaint where the State requested she be held without bail pending a revocation hearing. The State argued that she was a risk of flight and posed a risk of harm to herself and to the community. Defendant, however, claimed that she was attempting to comply with her probation conditions, and she had always attended court, so she was not a risk of flight. The court ordered her held without bail.

On September 1, 2016, the Chief Justice issued an unpublished entry order affirming the trial court’s decision to hold Defendant without bail. The order stated that a probationer does not have a right to bail, so release is subject to the court’s discretion. Defendant asked the entirety of the SCOV to review her denial of bail.

Now before 2010, a probationer charged with a violation had no right to bail. But, in 2010, the legislature amended the statute to allow for bail or release when the person is on probation for a nonviolent misdemeanor or nonviolent felony and the probation violation is not a new crime.

Here, Defendant was convicted of a non-violent felony, and her probation violation is not a new crime. Following the plain language of the statute, the SCOV concludes that the statute was enacted to remove the presumption against bail for people just like Defendant. Thus, people like Defendant have a right to bail. So, if the court is going to hold a defendant held without bail, it must consider factors in this statute. The SCOV directs the trial court to, on remand, determine conditions of release for Defendant pending the probation-violation hearing.

Everyone at the SCOV signed off on this one, except the Chief Justice, who dissents, probably because he issued the first single-justice opinion.

Back to the trial court it goes.

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