BAIL BASICS GENERAL SESSIONS JUDGES CONFERENCE SEPTEMBER, 2016

• BY: ANDY BRIGHAM

• STEWART COUNTY GENERAL SESSIONS COURT

• STEWART COUNTY IS THE GATEWAY TO THE

LAND BETWEEN THE LAKES AND HOME TO THE SCREAMING EAGLES, 101ST AIRBORNE (AIR ASSAULT) DIVISION (THE WATCHERS ON THE WALL)

FUNDAMENTAL RIGHT • “Bail is a basic component of the American

judicial system and is predicated on the principle ‘that a person accused of [a] crime shall not, until … finally adjudged guilty in the court of last resort, be absolutely compelled to undergo imprisonment or punishment’.” • State v. Burgins, 464 S.W.3d. 298, 2015 Tenn. LEXIS

285 (Tenn. 2015)

Right to Bail • Release from Custody and Bail Reform Act of 1978. Tenn.

Code Ann. 40-11-101, et. Seq.

• All defendants have a right to bail prior to trial for all offenses except for “capital offenses where the proof is evident or the presumption great.” Tennessee Constitution and statute.

• There is no right to a speedy bail determination. Fields v. Henry County, Tennessee, 701 F.3d 180, 185 (6th Cir. 2012).

• Bail may not be excessive. U.S. Constitution and Tennessee Constitution.

Purposes of Bail • To secure the presence of the defendant in court

• To protect the public safety

• Not to be used to punish the defendant

Who Sets?

• Committing Magistrate, any judge of the circuit or criminal court, or the clerk of the circuit or criminal court.

Making Bail • First Choice: Release on Recognizance or

Unsecured Appearance Bond.

• Defendant is released on promise to appear in court.

• Factors for magistrate to consider – Tenn. Code Ann. 40-11-115(b).

• Factors used to assess likely presence in court.

Making Bail, cont. • Second Choice: Release on Nonfinancial

Conditions.

• Conditions are to be least onerous to secure presence in court.

• Release to “qualified person” • Reasonable restrictions on activities. • Any other reasonable restriction.

Making Bail, cont. • Third Choice: Release on Secured Bail Bond

• Factors in Setting – same as for O.R. bond except

to consider safety of public.

• Magistrate may place reasonable restrictions on defendant’s activities

Making Bail, cont. • If defendant is arrested for a traffic offense

which results in death or serious bodily injury:

• And has no driver’s license, and • No evidence of insurance coverage, and • Is not lawfully present in the United States, then

• May be deemed a flight risk • 40-11-118(e)

Domestic Violence C.O.R. • Domestic Violence, Violation of OP, Stalking, Agg.

Stalking, Esp. Agg. Stalking

• Magistrate must consider threat to victim, public, as well as flight risk

• Specific conditions may be ordered (standard DV conditions)

Domestic Violence, cont. • Twelve hour hold “shall” be ordered unless

magistrate finds defendant is not a threat

• Same conditions, including 12 hour hold, for abuse of impaired adult

• GPS or electronic receptor device may be ordered

Driving Offenses Conditions • Vehicular Assault, Vehicular Homicide while

intoxicated, Agg. Vehicular Homicide, or DUI: Magistrate shall consider special conditions:

• Ignition interlock devices • Transdermal monitoring devices • Electronic monitoring with random screens • Pretrial residency in rehab. facility

Driving Offenses, cont. • Vehicular Assault, Vehicular Homicide while

intoxicated, Agg. Vehicular Homicide

• If prior alcohol related conviction

• On or after July 1, 2015

• Magistrate shall order transdermal device

Clerk’s Limits • $1,000 – misdemeanor

• $10,000 – felony, not against person

• $50,000 – felony, against person

• $100,000 - homicide

Cash Bonds • Allowed, but must be given option for secured

bond also

• Can be used to pay costs/fines

• All persons depositing cash must agree for release to pay costs/fines

Real Estate • Land with unencumbered equity 1 ½ times the

amount of the bond

• Deed of Trust required

• Title search and appraisal necessary?

Non-professional Sureties • Bail may be satisfied by at least two “sufficient”

sureties approved by the magistrate or officer

• May not be professional bondsmen or attorneys

• Stewart County practice: 2 landowners, bond less than $5,000

New Charges • When a defendant incurs new charges while free

on bail, the new bail must be double the “customary” amount

• Magistrate “shall consider” special conditions if pending charge is Vehicular Assault, Vehicular Homicide while Intoxicated, or DUI, and defendant is charged with a subsequent such offense

Changes to Bail

• Defendant may motion the court for change in bail or conditions

Violations of Conditions of Release

• Non-Domestic Violence Cases:

Court may declare forfeiture Court may issue arrest warrant – charge would be contempt Court may revoke bond (using procedures discussed below)

Violations of Conditions of Release • Domestic Violence Cases

• Defendant subject to immediate arrest • Defendant may be charged with contempt • Defendant may be charged with Class A

Misdemeanor if activity also constitutes violation of order of protection

• Court may revoke bond (using procedures discussed below)

Revocation of Bond • Procedures outlined in State v. Burgins, 464

S.W.3d 298, 2015 Tenn. LEXIS 285 (Tenn. 2015) • Analysis of Tenn. Code Ann.§ 40-11-141(b) • Proper procedures:

• Initiation of proceeding: judge or state • Notice: written notice of grounds, date, time,

place of hearing • Hearing Requisites: disclosure of evidence;

meaningful opportunity to be heard and to present evidence;

Revocation of Bond, cont. • Right to confront and cross examine; right to

make arguments • Conduct of hearing: evidentiary hearing; state

has burden of proof; standard of proof is preponderance of evidence

• Evidence: rules “somewhat flexible” - reliable hearsay allowed; corroboration required of documentary proof

• Note: no explicit right to counsel at this hearing, but best practices would dictate

Revocation of Bond, cont. • Findings:

• Violation of condition of release, or • Committed a criminal offense while released on

bond, or • Engaged in conduct resulting in the obstruction of

the orderly and expeditious progress of the trial or other proceeding

Revocation of Bond, cont. • Disposition factors court must consider:

• Court must consider general bail factors at 40-11-

118

• Court must consider whether additional bail or conditions would assure appearance of defendant and protect the public

Revocation of Bond, cont. • Disposition options:

• Revoke bail and hold defendant until trial

• Continue bail with possibility of additional

conditions or increase in bail

Surrender of Defendant • Surrender must be for “good cause”

• Violation of contract • Belief that defendant will FTA • Forfeit, conditional or final has been issued • FTA • Arrested • Other

Surrender, cont. • Defendant entitled to hearing within 72 hours of

surrender to determine “good cause”

• Arrest may be “at any place either in or out of the state”

• Bondsman must have a certified copy of the “undertaking” – if served by an agent, must be endorsed by bondsman

Surrender, cont. • Good cause:

• Violation of contract • Belief that defendant may fail to appear • Conditional or final forfeiture entered • Failure to appear • Defendant arrested • Other good cause

Exoneration of Bondsman • Surrender with good cause

• Disposition of charge

• Conviction • Acquittal • Guilty plea • Agreement with the state • Diversion • Retirement

Exoneration, cont. • If defendant is incarcerated in another

jurisdiction, bond is good until detainer is placed • Bondsman remains liable for expenses incurred

in transporting defendant • If detainer is refused, or defendant is released

notwithstanding detainer, bondsman is entitled to exoneration if appropriate documents are shown

Questions