Help Me, I'm Poor

One dollar will not be enough for bail.

State v. Pratt
2017 VT 9

By Amy Davis

When a person gets charged with a crime, the defendant’s initial court appearance in Vermont is his/her arraignment. (Some other states hold a probable cause hearing prior to arraignment. In Vermont those proceedings are handled simultaneously.) At this first appearance, the judge also decides what conditions of release are appropriate, or in some cases, decides to hold the defendant on monetary bail or without bail pending trial. The court has, what we call, “broad discretion” in deciding what to set. Meaning judges can pretty much do whatever they want as long as their decision mostly justified.

Judges look at a variety of factors when deciding what conditions to set or what bail to impose. Judges look at the seriousness of the offense, the defendant’s previous record, whether the defendant has missed court hearings in the past, the defendant’s ties to the community, etc. There are a bunch of factors. One factor, as the SCOV decides does not apply in this case, is whether the defendant can actually pay the bail imposed.

In this case, defendant is arrested in August 2016 for some bad charges like domestic assault and attempted sexual assault. The court imposes a $10,000 secured appearance bond, with $2,000 down. Defendant posts bond through a bail bondsman and gets out of jail. Well then, in October 2016, he picks up some new charges like burglary and violating conditions of his release. This time, the court sets bail at $25,000.

Defendant files a motion to review the bail, arguing that the State did not provide evidence that the defendant could meet the bail requirement, and that the court needed to make specific findings that the risk of flight justified the amount of bail set. The court wonders whether a defendant, who does not have the financial resources to obtain private counsel and is therefore appointed a public defender, would ever be able to meet a bail requirement. The court then subsequently dismisses the motion to review bail on the basis that it was protecting the public from further risk of violence and physical harm due to defendant’s escalating behaviors. The court held a hearing o the matter and came to the same conclusion, but changed the bail to $25,000 with a ten percent deposit. Defendant cannot pay this and remains incarcerated pre-trial.

Defendant appealed the trial court’s decision to single justice of the SCOV on the basis that the amount set was unconstitutionally excessive and not the least restrictive means to guarantee his appearance in court. Defendant also argues that the court must make findings on a defendant’s ability to pay.

The SCOV disagrees with Defendant, holding that the trial court does not need to make findings on a defendant’s ability to pay. The SCOV then recites language from the Vermont and U.S. Constitutions, and Vermont’s bail statutes. I would recite them here, but it’s unnecessary because there’s nothing in any of those three sources that says anything about a defendant’s ability to pay. The constitutions do talk about excessive bail, but bail is not excessive just because the defendant cannot pay.

The one glimmer of hope is that the SCOV cautions that trial courts should be wary about setting bail at a level that a defendant cannot meet, but does not outright bar trial courts from doing the same. While defendants are presumed innocent until they plead guilty or are convicted by a jury of their peers, the SCOV notes that holding a defendant before one of those two events cuts against that.

In previous cases, the SCOV has vacated high cash bail requirements in cases where there is little evidence of risk of flight. The SCOV has also ruled that a cash-only bail is unconstitutional.

The SCOV leaves dangling the idea of whether monetary bail to secure a defendant’s appearance is even a good policy. It also leaves unaddressed whether our bail statutes should be modified to require the court to set bail at a level the defendant can pay.

Unfortunately, Mr. Pratt’s case falls into the category where the SCOV says the trial court did not abuse its discretion, and leaves the bail amount in place.