R.I. CONST. art I, § 9: Right to Bail – Habeas Corpus
All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by imprisonment for life, or for offenses involving the use or threat of use of a dangerous weapon by one already convicted of such offense or already convicted of an offense punishable by imprisonment for life, or for offenses involving the unlawful sale, distribution, manufacture, delivery or possession with intent to manufacture, sell distribute or deliver any controlled substance or by possession of a controlled substance punishable by imprisonment for ten (10) years or more, when the proof of guilt is evident or the presumption great. Nothing in this section shall be construed to confer a right to bail, pending appeal of a conviction. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety shall require it; nor ever without the authority of the general assembly.
I. General Principles. The purpose of bail is to assure that the defendant will appear in court and keep the peace and be of good behavior.
II. Misdemeanors and Non-Capital Felonies:
1) There is a presumption of personal recognizance unless there is no reasonable assurance of appearance or the defendant presents a danger to the community.
2) If personal recognizance is not sufficient, further conditions shall be the least restrictive as possible to assure appearance and community safety. A release on conditions requires an order of the court.
3) Monetary conditions are allowed only if no other conditions will assure appearance or community safety. The court may not impose monetary conditions solely for the purpose of detention. Monetary conditions are a technique for release not detention, therefore the court shall consider the defendant’s financial ability to post bond.
4) Cash or surety bail may be imposed only if one or more conditions exist:
a. The court is reasonably satisfied defendant will not appear.
b. The court is reasonably satisfied defendant will engage in other criminal contacts.
c. The defendant is a bail, probation or parole violator or has outstanding warrants for failure to appear.
5) If cash or surety bail is required, the court shall state the reasons for such bail. The reasons shall be set forth on a document prepared by State Court administrator.
III. Capital Offenses.
1) The court shall proceed in accordance with Rule 5(a); RIGL § 12-13-1.1 and § 12-13-6 and Article I, Section IX of the R.I. CONST.
2) Where there is no opposition and the state does not object to bail, the court shall proceed in accordance with section II.
IV. Pre-release screening. The following information shall be provided to the Court:
1) Marital status
2) Name and address of dependents
3) Present employment
4) Under care of physician or medication
5) Physical or mental conditions affecting behavior
7) Prior criminal record and facts indicating danger to community
8) Prior court appearances or non-appearances
9) Ties to the community
10) Financial resources
V. Guidelines for Amount of Bail.
1) Cash or surety bail shall not exceed the guidelines provided below unless it can be shown that special circumstances exist.
• Bail shall not be pre-determined by the nature of crime but instead an individualized decision will take into account the special circumstances of each defendant.
• A defendant should not be required to post bail on each count in a multiple count complaint unless the charges could be severed for a trial.
a. Misdemeanors: $1000 w/ surety or $100 cash.
b. 5 year felonies: $5000 w/ surety or $500 cash.
c. 10 year felonies: $10,000 w/ surety or $1000 cash.
d. 20 year felonies: $20,000 w/ surety or $2000 cash.
e. 20+ year felonies: $50,000 w/ surety or $5000 cash
2) Whenever bail exceeds the guidelines, the court shall articulate reasons on the record (first, the reason for cash or surety bail and second the reason for exceeding). Reasons for departing from the guidelines include:
• Likelihood of conviction and likely sentence.
• Outstanding warrants or detainers.
• Previous record of non-appearance.
• Physical or mental condition affecting defendant’s behavior.
Primary Purpose of Bail
State v. Abbott, 322 A. 2d 33, 35 (R.I. 1974). “The primary purpose of bail, be it of the pretrial or the post-conviction variety, is to assure a defendant’s appearance in court at the appointed time.”
Mello v. Superior Court, 370 A.2d 1262, 1267 (R.I. 1977) (Dorris, J. dissenting). “The right to bail is a cornerstone of our criminal justice system. The practice of admission to bail as it has evolved in Anglo-American law is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.” Citing Stack v. Boyle, 72 S. Ct. 1, 5 (1951) (concurring opinion).
Discretion to Set Bail
Witt v. Moran, 572 A.2d 261 (R.I. 1990). Setting bail is always within the courts discretion, regardless of the offense, and cannot be prohibited by statute.
“Bail and the revocation of bail are within the judicial sphere of government and cannot be entirely delegated to the Legislature. Even if bail may be denied, therefore, the trial justice must exercise his or her discretion in deciding whether to grant bail and consider the factors that we set out in Abbott. In deciding whether to grant bail, the trial justice must make findings of fact on the record that relate to the individual defendant’s dangerousness.” Id. at 265
Review of Decision
A District Court’s decision regarding bail is reviewable in Superior Court in a habeas corpus petition pursuant to R.I. GEN. LAWS § 10-9-19, as well as SUP.CT.R.CRIMINAL P. 46 (i), which governs the court’s general supervisory power over felony offenses. A Superior Court’s decision regarding bail is reviewable by the Supreme Court on writ of habeas corpus or certiorari.
Right to Speedy Hearing
Mello v. Superior Court, 370 A.2d 1262, 1266, (R.I. 1977). A person arrested and held without bail must be brought before a justice within forty-eight hours. If the court holds the defendant without bail, a bail hearing date must be set within ten business days, excluding weekends and holidays.
The court is required to make a two-tiered finding after a bail hearing:
Under tier one, the court must weigh the evidence, in the light most favorable to the state, without assessing credibility, to determine if `proof of guilt is evident or the presumption great` that a non-bailable offense was committed and that the defendant committed it. If the tier one is satisfied, the court may hold the defendant without bail unless discretion is exercised under tier two.
`Proof of guilt evident or presumption great` is a standard higher than probable cause and equivalent to reasonable satisfaction standard of a violation hearing.
• Massey v. Mullen, 366 A.2d 1144 (R.I. 1976).
“the standard of proof at a bail hearing was, for all intents and purposes, the same as that at a violation hearing. Id. at 1147.
“to interpret the words ‘when the proof of guilt is evident or the presumption great’ as signifying no more than probably cause would render Art. I, § IX meaningless, since in no event may an accused be lawfully imprisoned without a preliminary showing of probably cause.” Id. at 1148.
Under tier two, a court may exercise its discretion to set bail in light of defendant’s ties to the community, respect for the law, and the likelihood of conviction at trial.
• State v. Abbott, 322 A.2d 33, 35 (R.I. 1974). Sets out the types of evidence to be considered at bail hearings in general:
The habits of the individual regarding respect for the law in regard to whether the defendant’s release would pose a threat to the community.
Local attachments to the community by way of family ties, business, or investments.
The severity of the likely sentence imposed and the question of whether the defendant would remove himself or herself from the jurisdiction of the court.
• SUP. CT. R. CRIM. P. 46(c): Terms (of Release on Bail)
If the defendant is admitted to bail, the terms thereof shall be such as in the judgment of the court will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the financial ability of the defendant to give bail, the character of the defendant, and the policy against unnecessary detention of defendants pending trial.
Massey v. Mullen, 366 A.2d 1144 (R.I. 1976). A bail hearing, unlike a violation of probation hearing, is forward-looking; therefore, the state’s evidence must be admissible at trial.
“…the state must make out a case that demonstrates not only a factual probability of guilt but it must produce evidence that is legally sufficient to support a conviction.”
Id. at 1148.
Gillissie v. Vose, December 20, 1996 unpublished Supreme Court Order. The defendant may elect to call witnesses and introduce evidence on his own behalf.
“…The hearing justice may permit the petitioner to present such evidence as may be appropriate, including testimony of defense witnesses and any rebuttal thereto, to permit the hearing justice to exercise his discretion on the question of bail…
As a practical matter, a bail hearing can be an opportunity to conduct discovery and cross examine witnesses at a time before the State has had ample time to prepare their case. This record can be used at a subsequent trial to impeach the credibility of witnesses with inconsistent prior testimony. Also, an effective defense can have a positive impact on any potential resolution of the case. In short, a bail hearing should be construed as an opportunity to define your case and explore witness credibility at an early stage in the proceedings.
But parole and probation are not the same thing. They actually describe two different punishments and processes -- one carried out by the traditional criminal justice system, and the other by the correctional system.
Plus, only parole, by definition, involves jail.
This is because probation is actually an alternative to jail. Though a judge may order a defendant to serve probation in addition to prison time, it's often served alone.
On the other hand, parole is a conditional release from prison. A defendant is ordinarily sentenced to jail "with the possibility of parole." After serving a designated percentage of his sentence, he can ask the parole board to grant him early release. If he meets the requirements -- good behavior, usually -- he is paroled.
Unlike with probation, there is no judge involved.
Despite these differences, parole and probation do share one major similarity. Both probationers and parolees are subject to a list of conditions. They must meet with a supervising officer; attend counseling and rehab; hold a job; and/or not break the law. If they fail to comply with the rules of parole or probation, they can be sent to jail.
Still, in the end, it is a judge that revokes probation, and a parole board that revokes parole. Both parole and probation may ultimately have the same effect, but they do operate in slightly different spheres. In Rhode Island, a failure to keep the peace and be of good behavior can result in the State filing a 32(f), which theoretically puts the probationer on notice that the State is alleging they failed to abide by the conditions of their sentence. If a Judge is “reasonably satisfied” that the probationer has failed to keep the peace, their sentence can be violated and they can be sentenced to serve all or a portion of the time that is hanging over their head.
Rhode Island tends to utilize unusually long periods of probation, which puts the probationer at great risk to serve a lengthy jail sentence if they are violated under these circumstances. Of course, the probationer is entitled to a hearing, and the rules of evidence apply (although not in their stricture).
Probation violations are adjudicated in District Court and Superior Court, and it is often possible that adjudication in one Court can affect the relative outcome in the other Court if a Defendant is on both District Court probation and Superior Court probation. There exists no right to a jury trial because these hearings are civil in nature; however a finding of no violation can be favorably dispositive of the actual charges if and when they occur.
In light of the fact that the Judge has an enormous amount of discretion in these cases, it is best advised to have an experienced attorney negotiate the matter and raise all possible legal issues if in fact the matter is litigated pursuant to a hearing.
The following article was recently featured on Libby Kirwin’s real estate blog, “Living with Libby.” Click here to view the post on Libby’s site.
“Men We Love: Kevin Hagan, Esq.”
“After spending four years at the office where I began Libby Kirwin Property Management, I was happy to turn over the keys to my office at 105 Memorial Blvd to Attorney Kevin Hagan, as he began his new venture as a solo law practitioner.
“Of course, I knew that Libby would be able to secure me the perfect spot,” said Kevin. “I love the office on Memorial Boulevard as much as she did and we all know that location, especially in Newport, is paramount.”
After attending Providence College, Kevin earned his law degree from Roger Williams Law School and later served on the university’s Alumni Board. Having recently gone the route of a solo practitioner, Kevin enjoys a broad spectrum of practice areas including family court cases, criminal cases and accident cases of every variation.
“It has been an exciting and rewarding experience to live and work in Newport with my wife Domenica and son Thomas.” Newport is a city that has captivated Kevin since the time he used to visit as a child. Having the opportunity to represent the legal interests of others that also live in Newport County was spawned as a young prosecutor in the Newport Office of Attorney General, and prior to that, as a Newport Superior Court Law Clerk.
Kevin feels he has been fortunate to learn this job from the ground up. He trained to be a trial lawyer with some of the greatest litigators that have practiced in this region. However, his transition into private practice began with the most important consideration of all – finding the perfect office!
Kevin serves as an adjunct professor of Legal Studies at the Community College of Rhode Island, and he was recently appointed by the Chief Judge of the Rhode Island District Court to serve as a Justice of the Peace and Bail Commissioner in Newport County.
Newport enjoys a close knit bar, and Kevin says it has truly been a privilege to be able to serve the residents of Newport County and try a few cases along the way!”