Bail Reform

The Following is from my report that I gave at the second reading of H.503, a bill to reform bail.

H.503 Report

The Right to bail is guaranteed by the Vermont Constitution. Ch. II, § 40.

Bail may be withheld only in the following circumstances:

(1) The defendant is charged with an offense for which the punishment is death or life imprisonment, and the evidence of guilt is great.

(2) The defendant is charged with a felony involving an act of violence against another person, the evidence of guilt is great, and the court finds by clear and convincing evidence that the person’s release poses a substantial threat of physical violence to any person and that no conditions of release will reasonably prevent the physical violence.

Unless a person is held without bail for these reasons, the Court should release the person on personal recognizance.

The Court may also require execution of a performance bond, in other words, it may require bail. The decision on whether to require a person to post bail depends on the risk that the individual will flee the jurisdiction or will fail to appear in court for trial. If there is a risk of flight or nonappearance, bail is imposed. Setting bail provides a motivation for a person to appear in court because if he or she does not the bail may be forfeited to the state.

If the court does not believe that bail itself will ensure the person will show up, it may also impose conditions of release to ensure appearance in court. The Court may also impose conditions of release to protect the public.

Pre-conviction imprisonment is costly and potentially unfair to those without the financial means to post bail. Individuals can be held because they cannot afford bail. Being detained for lack of bail can have a number of negative consequences. An individual so held can lose his or her job or housing. The individual will be at a disadvantage in building his or her defense. In certain circumstances, a person unable to post bail may enter a plea agreement simply to get out of jail. In addition, detaining individuals imposes substantial costs to the state.

In light of these issues, the House Judiciary Committee has spent significant time assessing how to reform Vermont’s bail laws.

The result, H.503, would restrict the use of bail in certain limited circumstances and would reform the use of bail in the context of violations of conditions of probation.

I’ll first address the context of pretrial bail and then will discuss reforms to probation.

When a person is suspected of a crime by law enforcement, there are two possibilities. He or she may be arrested and detained before a judge decides whether there is probable cause to continue the case. Or, that person may be issued a citation to appear at the probable cause hearing. That is called “being cited into court,” and the defendant is not taken into custody.

If the person is cited into court, at the probable cause hearing a prosecutor may argue that bail should be posted based on criminal history or past nonappearances in court. H.503 would provide that an individual who is cited into court and, in fact, appears at the probable cause hearing cannot be required to post bail. Being cited into court rather than arrested shows that law enforcement has made the judgment that the person does not present a risk to public safety. The officer did not think it was necessary to arrest and lodge the person. If the person has made his or her initial appearance, this alleviates the concern regarding future nonappearance.

H.503 also changes the law related to individuals who are on probation and have violated their conditions of probation.

  • “Probation” means a procedure where a person found guilty of a crime upon verdict or plea is released by the court, without confinement, subject to conditions imposed by the court and subject to the supervision of the Commissioner of Corrections. 28 V.S.A. § 201.

Under current law, if a probationer violates the terms of probation, a corrections officer may arrest that person. H.503 would provide that the corrections officer may cite the probationer into court rather than arrest and detain the probationer in prison. It also expands the opportunity for the probationer to be released on conditions of release and/or after posting bail.

These changes will allow a decrease in detention of individuals. It will free up prison beds and will allow cost savings in the criminal justice system while also continuing to protect public safety.

Section-by-section summary of H.503, An act relating to bail

Sec. 1 – Cited misdemeanors

  • Prohibits the imposition of cash bail in cases where a person was cited for a misdemeanor.
  • Subsection (b) of 13 VSA 7551 provides that “No bond may be imposed at the initial appearance of a person charged with a misdemeanor if the person was cited for the offense in accordance with Rule 3 of the Vermont Rules of Criminal Procedure. This subsection shall not be construed to restrict the court’s ability to impose conditions on such persons to reasonable ensure his or her appearance at future proceedings or to reasonably protect the public in accordance with section 7554 of this title.”

Sec. 2 – Violations of probation

  • The bill’s change to subsection (2) of section 28 VSA 301 clarifies that a correctional officer may cite a person, instead of arresting him or her, if they suspect that person has violated a condition of his or her probation.
  • In determining whether the probationer should be cited or arrested, the officer should consider whether issuance of a citation will reasonably assure appearance and protect the public.
  • Taken together, subsections 4 and 5 modify when a court can release a probationer after violations of conditions of probation.
  • Currently, a probationer has no right to bail or release, unless the person is on probation for a nonviolent misdemeanor or nonviolent felony and the probation violation did not constitute a new crime. Subsection (4) deletes the requirement that the probation violation did not constitute a new crime. This deletion works in tandem with new subsection 5(A).
  • Subsection (5)(A) expands the opportunity for a probationer to be released back into the community if the court can set bail or conditions of release that will reasonably ensure the probationer’s appearance at future proceedings and conditions of release that will reasonably protect the public.
  • If these preconditions are met, the Court shall release a probationer who is on probation for a nonviolent misdemeanor or nonviolent felony
  • If these preconditions are met, the Court may release a probationer who is on probation for a violent misdemeanor or violent felony. Again, the release may occur only if the court finds that conditions of release will reasonably protect the public.

Sec. 3 – Pretrial communications

  • Requires the Court Administrator, State Attorneys, Defender General, and the Vermont Chapter of the ACLU to work together and with other interested parties to examine options for facilitating pretrial communication between the courts and defendants. The goal of this effort is to find options that reduce the risk of nonappearance by defendants.
  • During testimony, we learned that states that have implemented notification systems have decreased nonappearance at court hearings. We determined, however, that further analysis of pretrial communication improvements or notification systems was necessary before we take any action on such an initiative.
  • The group is to report its recommendations to the Committees on Judiciary by 10/15/17.

On average, our prisons are holding, pretrial, 380 to 400 individuals daily. 75 to 100 of these individuals are being held for violations of probation. This bill takes a step toward reducing these numbers in situations where public safety can be ensured and the risk of nonappearance has been addressed.