What's in a Bond (Hearing)?

The setting of a bond is one of those things prosecutors and defense attorneys skirmish over all the time. Should the Pitcairn Axe Murderer get a bond? No. Should someone charged with a first-time reckless driving misdemeanor because of speed get a bond? Almost certainly, yes.  But what about the serial shoplifter who goes to various stores and walks out with a pack of gum one day and an Enquirer the next week and Snickers bar the week after that? These are the cases all us attorneys get together and conspire to give judges migraines over.

Those of you who watch a lot of TV hear "bail" talked about all the time. In a Virginia court you'll almost never hear that word. Instead you'll always hear "bond" talked about. For the sake of clarification, here are the basic definitions. Bail means being on pretrial release. Bond is the amount of money paid to get released. As a practical matter the word "bond" has been used to mean both of these things wherever I've practiced in Virginia (your mileage may differ) so you will hear me, other Virginia attorneys, and frequent fliers saying things like "he's on bond."

CONSTITUTIONS: To begin any discussion of this sort of topic we must look to the constitutions. It does not appear that the federal constitution's requirement that "Excessive bail shall not be required" has been applied to the States, although it is probable that all States have adopted similar requirements under their constitutions. Virginia adopted the a very similar constitutional provision - only leaving out the "shall." In Article I section 9 it states "That excessive bail ought not to be required." Both of these are lifted from the English Bill of Rights of 1689 which stated "that excessive bail ought not to be required." Note that this was not intended to declare a universal right to bail; it was meant to close loopholes used to keep those entitled to bail from being able to exercise that right. There is not and never has been a universal right to bail.

Beyond all that, Virginia's constitution demands more balance than the federal constitution. Article I section 8-A states that victims have "The right to protection from further harm or reprisal through the imposition of appropriate bail and conditions of release.

Once you get past the generalities and purpose of the constitutional provisions there must be a manner in which they are applied. There's a two part test in Virginia. First, a judge must decide if the defendant should be on bond. Second, if a judge decides that bond is appropriate he must decide what conditions of pretrail release are appropriate.

SHOULD THERE BE A BOND?:  Under 19.2-120, a person is entitled to bond unless (1) the judge finds that there is probable cause: (a) the defendant is unlikely to appear, or (b) the defendant is likely to hurt himself or others, or (2) the defendant is charged with any of a number of offenses listed in the statute (in the main violent and sexual charges, being already on bond for a felony charge, as well as the second time dealing a schedule I/II drug). In the second case a defendant can still get a bond, but he must overcome a presumption against bond (presumably to a preponderance standard).  (2)(c) The factors which the General Assembly has laid out to use in deciding whether the presumption has been overcome are: (i) nature and circumstances of the charge, (ii) the history and characteristics of the person, and (iii) danger to the community upon release.  Also note that there are similar presumption against bond provisions for illegal aliens under 19.2-120.1.  My experience has been that while some judges hold harder to the rebuttable presumption than others, all will decide that it has been overcome at some point.

WHAT KIND OF BOND SHOULD THERE BE?:  (A)  Conditions:  If a judge does decide to let a defendant out on bail there are several conditions he can set per 19.2-123, but the only ones that really mean anything are (1) the amount of bond to be posted, and (2) the possible imposition of pretrial services. The first of these is by far the more significant as pretrial services really can't stop someone from shoplifting or going to beat up a witness or running away to Oklahoma City; the bars of the jail can.  (B) Requirement: In setting conditions the judge is required to accomplish two things: (1) Assure the defendant comes back to court, and (2) insure the defendant is on good behavior prior to trial.  19.2-121.  (C) Considerations: In setting these conditions the judge is to consider (1) nature and circumstances of the crime, (2) use of a firearm, (3) weight of the evidence, (4) ability of the defendant to pay bond, (5) character of the defendant including (a) family ties, (b) employment, and (c) if she's in school, (6) length of residence in the community, (7) criminal record, (8) any prior failures to attend court, (9) whether the defendant is likely to try to obstruct justice, and (10) other factors.  19.2-121.

All the factors in setting a bond make sense except (4) above (19.2-121(iv) in the statute).  That one is problematic. On the one hand, it is arguably a sound consideration in determining if a bond is excessive for that individual. On the other hand, there is nothing in Virginia's constitution (or the 8th Amendment) that says "excessive for that individual."  Let's assume a defendant stands charged with malicious wounding and judge first decides that there has been a rebuttal of the presumption against bond then decides based upon all the other factors that an objectively appropriate bond is $10,000 (secured by cash or property).  If the defendant protests that he can only make $5,000 bond and the judge lowers it to $5,000, isn't he violating both (1) the requirements of the statute and (2) the requirements of Art. I sec 8-A of the Virginia constitution? After all, he has set the bond which he objectively believes will assure appearance in court and good behavior prior to trial - which would include protecting the victim from further harm or reprisal as required by the Virginia constitution. Lowering that bond because of the defendant's financial situation can only lessen the the assurance of appearance, lessen the probability of good behavior pretrial, and lessen the protections guaranteed for the victim. Sure the judge can write on a piece of paper "no contact", but we all know how useful that piece of paper is at 3 a.m. when the defendant shows up at the victim's house. The same goes for pretrial services. It can do weekly check-ins and drug screens, but it isn't a lot of good during that 3 a.m. confrontation either. This part of the statute really should be excised and if it's not, it should be the  very least of the factors considered by the judge.