Bail: Guidelines, Hearings & Revocation

This is the first of several blog entries dealing with the right to bail in Rhode Island Courts. Reference to a client’s right to bail should always be made in connection with relevant Rhode Island cases and statutes on the subject. Bail is an extremely important part of the criminal process because it enables a suspect to contribute to their defense in a manner that is quite simply impossible when they are held pending hearing or trial.

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.

Bail Guidelines

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
6) Education
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.

Evidentiary Standard

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.