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Article 1, Section 8 of the Connecticut Constitution states:
In all criminal prosecutions, the accused shall have a right … to be released on bail upon sufficient security… nor shall excessive bail be required…
The Eight Amendment to the United States Constitution states:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Despite this, the bonds imposed by local judges have grown at a tremendous rate. The numbers being thrown about these days are just… well…excessive. Take, for example, the recent tragic shooting at Wesleyan. When arrested, the police set bond on the defendant at $10 million, already an astronomical amount.
Apparently that wasn’t enough. Perhaps in a show of force for the public and/or media, the judge raised the bond to $15 million. Now, I know nothing about the financial circumstances of the defendant here, but I find it hard to believe that there are people who can post bond in the amount of $10m, but not $15m. That’s entirely silly and nothing more than appearances. (One might argue that it doesn’t make a difference because he couldn’t post $10 million anyway, so who cares if it’s $15 million or $30 million. I care, that’s who.)
So at what point does a bond become “excessive” and thus in violation of either the State or Federal constitutions? The point of bond (or bail) isn’t to ensure that the defendant cannot post it, but rather to ensure that he has enough invested in the posting of that bond that it provides an incentive for him to return to court and thus avoid forfeiting that amount.
Now, this isn’t a jurisprudential hot topic, so cases on point are relatively few and far between. But there is some guidance. Starting with the Constitutional import of bail, in State v. Ayala¹, the CT Supreme Court reiterated that the Constitutional provisions:
guarantee[] bail in a reasonable amount in all cases, even capital cases not falling within the exception . . . The defendant has a fundamental constitutional right to bail pending trial in all but certain capital offense.
[In Ayala, though, the Court ruled that this Constitutional provision doesn't prohibit a judge from revoking bail if the defendant commits a new crime while on release and the judge is not required to impose a new bond amount. Fmr. Justice Berdon argues in a dissent - and convincingly so, in my opinion - that the Constitutional provisions aren't vague and that bond must be set in every case at all times. He didn't get any support. So much for the Constitution.]
Onto the question of what bail is excessive: Certainly if the reasoning behind bail provisions is to ensure the appearance of the defendant in Court, then one cannot circumvent the Constitutional mandate by setting a bond so high that the defendant cannot reasonably post it. Indeed, the State Supreme Court recognized as much in State v. Menillo²:
The fundamental purpose of bail is to ensure the presence of an accused throughout all proceedings, including final judgment. If an accused were kept locked up in jail from the time of his arrest, there would be no question as to his availability at all times. But the bail provision of § 8 of article first of our constitution makes clear that it was intended that in all cases, even capital cases not falling within the exception, bail in a reasonable amount should be ordered. This is reinforced by a further provision in the same section of our constitution prohibiting a requirement of “excessive bail”, which thus prevents a court from fixing bail in an unreasonably high amount so as to accomplish indirectly what it could not accomplish directly, that is, denying the right to bail.
In State v. McDowell³, the Connecticut Supreme Court wrote that
To impose a financial requirement which is beyond [a defendant's] means is unreasonable and, of course, makes the determination of eligibility [for bail] purposeless.
But does this mean that a judge always has to set an amount that the defendant can make? No, and it doesn’t have to be that way. Again, going back to the reasonableness of bond, from Menillo:
But a reasonable amount is not necessarily an amount within the power of an accused to raise. It is an amount which is reasonable under all the circumstances relevant to the likelihood that the accused will flee the jurisdiction or otherwise avoid being present for trial. See 2 Swift, Digest, p. 395.
But, going back to the question I posed half-jokingly above, what difference does it make if the defendant can’t post even half the bond that is set? An argument can be made that setting such excessive bonds constitutes a form of preventive detention that carries along with it a presumption of guilt. Why else would such a big bond need to be set, unless everyone suspected that the guy was guilty as sin. Justice Berdon puts it more eloquently, from the dissent in Ayala:
The framers of our state constitution placed a high priority on the right to be free pending a determination of guilt. By drafting article first, § 8 of our constitution, which has its roots in our first constitution; see Conn. Const. of 1818, art. I, § 14; 6 the framers obviously recognized that more than liberty is lost when bail is denied. It is well documented that “[p]retrial detention lessens [the presumption of innocence] because an accused is now treated as a convict before trial. An accused individual loses time and liberty, jobs frequently disappear, family and friend relationships are disrupted. The physical appearance of an accused is affected during this period of detention. This impedes upon the ability to prepare an effective defense. As a result, an accused individual is more likely to be convicted and there is a greater likelihood that a severe sentence will be imposed. This violates due process since an accused individual loses liberty during pretrial detention prior to an adjudication of guilt at trial.” Comment, “United States v. Salerno: A Reduction of Individual Rights,” 15 New Eng. J. on Crim. and Civ. Confinement, 147, 161-62 (1989).
The lesson to be learned, I believe, is that bond must be imposed only as necessary and only after great consideration of the facts and circumstances of each case and in no event must be imposed or raised only for the sake of appearances.
When the amount of bond set in a case seems ridiculous, it probably is excessive.
1. 222 Conn. 331 (1992)
2. 159 Conn. 264 (1970)
3. 241 Conn. 413 (1997)
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