December 30, 2005
DENIAL OF BAIL TO CERTAIN VIOLENT OFFENDERS
By: Christopher Reinhart, Senior Attorney
You asked (1) whether the legislature could prohibit bail for people accused of certain crimes and (2) for the percentage of defendants who are accused of a violent felony who commit other violent offenses while out on bail.
It appears that the Connecticut Constitution prohibits the legislature from denying bail in cases involving people accused of crimes other than capital offenses. But the legislature has set procedures for courts to follow when granting bail, including authorizing the court to consider the safety of others when a person is charged with certain crimes. These statutes list criteria for the court to consider and list bail options but they do not limit the court's ability to decide what bail is appropriate. The current law is described below. Court rules also include similar provisions.
The Judicial Branch could not provide us with data on the percentage or number of defendants who are accused of a violent felony who then commit other violent felonies while released on bail. We are not aware of other sources for this information.
CONSTITUTION AND COURT RULINGS
The Connecticut Constitution provides that, “In all criminal prosecutions, the accused shall have the right…to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great.” It also provides, “…nor shall excessive bail be required…” (Art. I, § 8). The Eighth Amendment to the U.S. Constitution states that “Excessive bail shall not be required…”
The Connecticut Supreme Court has stated, “The defendant has a fundamental constitutional right to bail pending trial in all but certain capital offenses” (State v. Ayala, 222 Conn. 331 (1992)). It has also stated that the state constitution “guarantees bail in a reasonable amount in 'all cases, even capital cases not falling within the exception'” when the proof is evident or the presumption great (Ayala, citing State v. Menillo, 159 Conn. 264 (1970)).
Discussing the constitutional provision on excessive bail, the court stated that this “…prevents a court from fixing bail in an unreasonably high amount so as to accomplish indirectly what it could not accomplish directly, that is, denying the right to bail. But a reasonable amount is not necessarily an amount within the power of an accused to raise. It is an amount which is reasonable under all the circumstances relevant to the likelihood that the accused will flee the jurisdiction or otherwise avoid being present for trial” (Menillo).
RELEASE BY JUDICIAL AUTHORITY UNDER CGS § 54-64A
When an arrested person is presented to the court in bailable offenses, the court must promptly order his release on the first of the following conditions sufficient to reasonably assure his appearance in court:
1. written promise to appear without special conditions,
2. written promise to appear with non-financial conditions,
3. bond without surety in no greater amount than necessary, or
4. bond with surety in no greater amount than necessary.
The court, when it has reason to believe the person is drug-dependant and where necessary, reasonable, and appropriate, can order drug testing and participation in testing and treatment programs.
In determining the conditions of release to reasonably assure the person's appearance in court, the court can consider the:
1. nature and circumstances of the offense;
2. person's previous convictions;
3. person's record of appearances in court after bail; and
4. person's family ties, employment record, financial resources, character, mental condition, and community ties.
Additional criteria apply to assure that the safety of another person will not be endangered when the person is charged with a:
1. class A felony;
2. class B felony except 1st degree promoting prostitution and 1st degree larceny;
3. class C felony except 2nd degree promoting prostitution, bribing a juror, or bribe receiving by a juror;
4. class D felony for 2nd degree assault (with or without a firearm), 2nd degree assault or larceny of an elderly, blind, disabled, pregnant, or mentally retarded person (with or without a firearm), 3rd degree sexual assault, 1st degree unlawful restraint, 3rd degree burglary (with or without a firearm), reckless burning, 3rd degree robbery, or criminal use of a firearm or electronic defense weapon; or
5. family violence crime.
The additional criteria are the (1) number and seriousness of pending charges, (2) weight of the evidence, (3) person's history of violence, (4) person's previous convictions of similar offenses while released on bond, and (5) likelihood based on his express intentions that he will commit another crime while released.
If the court decides to impose non-financial conditions of release, it must order the least restrictive conditions reasonably necessary to assure the person's appearance in court and, if the person is arrested for one of the crimes listed above, that the safety of another person will not be endangered. Conditions can include:
1. supervision by a person or organization;
2. specific restrictions on travel, association, or place of abode;
3. not engaging in specific activities including using or possessing dangerous weapons, intoxicants, or controlled substances;
4. participating in the zero tolerance drug supervision program;
5. providing sureties of the peace under supervision of a bail commissioner;
6. avoiding contact with an alleged victim and potential witnesses who may testify;
7. maintaining employment or seeking employment;
8. maintaining or beginning an educational program;
9. electronic monitoring; and
10. other conditions reasonably necessary to assure the appearance of the person in court and that the safety of another person will not be endangered.
The court must state its reasons for any conditions on the record.