Cash Bonds - Safety or Freedom

There are many opinions on the purpose and effectiveness of criminal bonds. Some cities have attempted to eliminate cash bonds all together. For sure, there is an innate unfairness to a cash bond. Just about everyone would agree, two people being given the same bond, for the same crime, makes sense. But, at the same time, the fact that one person goes home while the other stays in jail, just because of the size of their family’s bank account is unfair on its face.

Purpose of Criminal Cash Bail Bonds

The purpose of a criminal bond is two-fold: 1) To insure the person comes to their court dates, and 2) To insure the safety of the community. We have seen recently how having too low a bond allowed defendants with long violent criminal records to get back out on the street, only to commit more crimes and in some cases the death of innocent people. Judges have a difficult decision in balancing the constitutional rights of a defendant, who is innocent until proven guilty, and the safety of the public. The United States Supreme Court in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951), found it would be unconstitutional to fix excessive bail to assure that a defendant will not gain his freedom. In Bandy v. United States, 81 S. Ct. 197, 198, 5 L. Ed. 2d 218 (1960), the Court also said, “The wrong done by denying release is not limited to the denial of freedom alone. That denial may have other consequences. Imprisoned, a man may have no opportunity to investigate his case or earn money to hire private counsel.”

Oklahoma Criminal Cash Bail Bonds

In Oklahoma the case law runs parallel to the United States Supreme Court. “The purpose of an appearance bond is to guarantee that the accused will be available at such times as the court may direct. It should never be used for the purpose of punishing the accused.” Ex parte Sanders, 1955 OK CR 111, 289 P.2d 155. With that said, how do we make certain a person who has a history of violent crimes isn’t placed right back on the street to potentially harm other innocent people? This was addressed in Brill v. Gurich, 965 P.2d 404 (Okl. Cr. 1998), where the Oklahoma Criminal Court of Appeals said, “There are other legal means available to the court to insure the Defendant’s appearances that would not place the hardship on the Defendant that incarceration at the current amount places upon him.” These other legal means, such as GPS monitoring, or drug testing, are determined after examining what are commonly called the Brill Factors:

Brill Factors

The seriousness of the crime charged against the defendant, the apparent likelihood of conviction and the extent of the punishment prescribed by the Legislature –

The defendant's criminal record, if any, and previous record on bail if any –
His reputation, and mental condition –
The length of his residence in the community –
His family ties and relationships –
His employment status, record of employment and his financial condition –
The identity of responsible members of the community who would vouch for Defendant's reliability –
Any other factors indicating defendant's mode of life, or ties to the community or bearing on the risk of failure to appear. –

Most people would agree that detaining someone in jail, while they lose their job and their home doesn’t make sense. This is especially true when they have meager resources and the crime was non-violent. Let’s not confuse that with the argument of having a violent criminal let back out on the street.

What’s the Answer?

The answer seems simple on its face. If it is a non-violent crime then make their bond low enough to get them home, but high enough to make sure they come back to court. If the crime is defined as a violent offense, then they should be held without a bond. Seems simple, but this simple answer ignores one very important constitutional right. A person is presumed innocent until a jury of his/her peers has, beyond a reasonable doubt, found him/her guilty. So, is it fair to hold a person in jail on unchallenged evidence and testimony collected by the officers and a prosecutor who may have a motive beyond justice? This tug and pull is why anyone arrested needs a good attorney right from the beginning to argue every step of the process, even the setting of bond.

Author: Brian Boeheim

Brought to you by:

Boeheim Freeman Law