Effective Bond Arguments
Throughout my career, I have often been asked how to craft a compelling argument to secure a bond for someone who is being held in custody in a case where bond has been denied. There is no one-size-fits-all solution to this question. Every case is different, and each defendant has their own unique characteristics to consider, such as their criminal history, community ties, family responsibilities, and other relevant factors.
The first step is to understand the legal structure by which this issue is addressed in Georgia courts. With this goal in mind, the following are some important considerations and legal doctrines that are particularly useful when analyzing what courts consider when deciding whether to grant a bond in any given case.
In the case Ayala v. State, 262 Ga. 704, 425 S.E.2d 282 (1993), the Georgia Supreme Court outlined the proper procedure and evidentiary burdens at a pretrial bond hearing. The Court held that:
"We conclude that the defendant has the burden of coming forward initially with evidence to show that he or she poses no significant risk of fleeing, threatening the community, committing another crime, or intimidating a witness. This burden of production means that a person must present evidence at the bond hearing on factors that demonstrate community roots. These factors include the defendant's length and character of residence in the community, employment status and history, history of responding to legal process, and prior criminal record. Once the defendant meets the burden of production, the state may present evidence to rebut it.
To protect the presumption of innocence, we hold that the state has the burden of persuasion in convincing the superior court that a defendant is not entitled to pretrial release. This requirement means the state has the burden of proving by a preponderance of the evidence that the trial court should deny bail either to secure the defendant's appearance in court or to protect the community."
In short, Georgia courts consider four different factors when deciding whether to grant a bond. They are the following:
The risk of danger the defendant may pose to people and/or property in the community.
The risk that the defendant will intimidate any witnesses or victims connected to the case.
The risk that the defendant will commit any felony offenses while out on bond.
The risk that the defendant will flee the jurisdiction while out on bond.
Ties to the Community and Low Risk of Flight
As the court in the Ayala case stated, courts also examine the ties a defendant has to the community. The court in Lane v. State, 247 Ga. 387, 276 S.E.2d 644 (1981), discussed various factors that courts should consider when analyzing this issue. They are the following:
Length and character of the defendant's residence in the community
Employment status and history, and his financial condition
Family ties and relationships
Reputation, character, and mental condition
History of response to legal process
Prior criminal record
Responsible members of the community who would vouch for his reliability
The nature of the current charge, the apparent probability of conviction, and the likely sentence, insofar as these factors are relevant to the risk of nonappearance
The State Must Prove That Pretrial Detention is Necessary
Denying bond or setting bond higher than necessary to secure the defendant's presence constitutes preventive detention. There are constitutional limits on when preventive detention may be imposed. These limits require that the state meet a significant burden of proof on rebuttal.
The court in the case Womack v. State, 223. Ga. App. 82 (1996), held that preventive detention is necessary to protect the community and the administration of justice only where the state can prove facts which support a finding that the defendant is likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice.
The state has a heavy burden because the arrestee is presumed innocent and has a fundamental right to liberty. The Supreme Court addressed the constitutional limits on pretrial detention in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), where it ruled on the constitutionality of the Federal Bail Reform Act of 1984:
"An individual's Liberty interest may, in circumstances where the Government's interest is sufficiently weighty, be subordinated to the greater needs of society. We think that Congress's careful delineation of the circumstances under which detention will be permitted satisfies this standard. When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, we believe that consistent with the Due Process Clause, a court may disable the arrestee from executing that threat... In our society, Liberty is the norm, and detention prior to trial or without trial is the carefully Limited exception. We hold that the provisions for pretrial detention in the Bail Reform Act of 1984 fall within that carefully Limited exception. The Act authorizes the detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to individuals or to the community, which no condition of release can dispel." Salerno, 107 S.Ct. at 2103, 2105.
Georgia's statute on bail, O.C.G.A. §17-6-1, tracks the language in the Bail Reform Act and the American Bar Association’s Standards on Pretrial Release. Like the Bail Reform Act, it requires a showing that the arrestee poses no significant threat to any person, to the community, or to any property in the community, poses no significant threat of committing any felony pending trial, and poses no significant risk of intimidating witnesses or obstructing justice. O.C.G.A. §17-6-1(e)(2)-(4).
The presumption is in the defendant's favor unless the charge is a serious violent felony. Under Georgia law, serious violent felonies include offenses such as murder or felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery.
The court in the Ayala case held that the Law favoring the release of persons prior to trial supports placing the burden of persuasion on the State in hearings on pretrial release.
Argue That Remedial Bond Conditions Are Appropriate Rather Than A Denial of Bond
Because the law favors the release of defendants pending determination of guilt or innocence, it should be presumed that a defendant is entitled to release on a pretrial bond, subject to the condition that no new offense be committed. Concerns the court may have about the defendant's criminal record should be addressed through special conditions, rather than an unreasonably high bond. Examples of different types of special conditions that should be suggested include supervision by a pretrial services officer, curfew, enrollment in a substance abuse treatment program, no contact with any named victim or witness in the case, electronic monitoring, and others.
Emphasize That the Facts of the Present Arrest Are Legally Irrelevant
The only issues to be decided are whether a bond is necessary to assure his presence and whether further restraints on his liberty are needed to protect the public or potential witnesses. The defendant is presumed innocent of the current charge; therefore, it is improper to consider the crime or crimes for which they are charged when determining the question of bond.
To further illustrate this point, the court in Jones v. Grimes, 219 Ga. 585, 134 S.E.2d 790 (1964) held that under Georgia law, evidence of the guilt or innocence of the person detained does not figure prominently in the judge's determination over whether to deny bail. The court in Rock v. Lowe, 893 F.Supp. 1573, 1582 (1995) also echoed this sentiment.
In short, the nature of the new charge is not relevant, except to the extent that the potential sentence is so severe that the Defendant may flee the jurisdiction and not return for any future court hearings.
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