Analyzing The Factors Courts Look To When Deciding Whether To Grant A Defendant A Bond

Over the course of my career, I have often been asked how to craft an effective argument in order to secure a bond of some type.  Now admittedly, there is no one-size-fits-all solution to this question since each case is unique and involves a defendant that has particular characteristics, such as criminal history, ties to the community, family responsibilities, and so on.

However, I have always found it particularly helpful to begin the task of crafting an argument with identifying the legal structure by which this issue is addressed in Georgia courts.  With this goal in mind, below are some important considerations and legal doctrines that I hope you will find useful.

In 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.

"[W]e 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 indicate roots in the community. These factors include the defendant's length and character of residence in the community, employment status and history, past history of responding to legal process, and prior criminal record. [cite] 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." Id, (Emphasis supplied).

Ties to the community and low risk of flight.  Substantially identical factors are set forth in Lane v. State, 247 Ga. 387, 276 S.E.2d 644 (1981):

(1) Length and character of the defendant's residence in the community. 

(2) Employment status and history and his financial condition. 

(3) Family ties and relationships. 

(4) Reputation, character and mental condition. 

(5) Past history of response to legal process. 

(6) Prior criminal record. 

(7) Responsible members of the community who would vouch for his reliability. 

(8) 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.

Argue that the State cannot prove that pretrial detention is necessary.

Denying bond or setting bond higher than necessary to secure the Defendant's presence constitutes preventative detention. There are constitutional limits on when preventative detention may be imposed. These limits require that the state meet a significant burden of proof on rebuttal.

Preventative detention is justified 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. . . " Womack v. State, 223 Ga.App. 82, 476 S.E.2d 767 (1996).

The State's burden is heavy 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' 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 ABA 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" (Murder or felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery). Id. "[T]he law favoring release of persons prior to trial supports placing the burden of persuasion on the state in hearings on pretrial release in superior court. Because the trial court placed the burden of proof on [the defendant], rather than the state, we vacate the order denying bail.  " Ayala, supra, 425 S.E.2d at 285.

Argue that the defendant should be released on a minimal 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 his or her own recognizance on condition that no new offense be committed. This presumption may be overcome by finding that there is a substantial risk of nonappearance or a need for additional conditions [or preventative detention]." ABA Standards on Pretrial Release, Standard 10-5.1 (1985). This standard is in line with the Supreme Court's holding in Salerno and should be followed in this case.

Argue that special conditions can be used to address any fear of harm.

Concerns the court may have about the Defendant's criminal record should be addressed using special conditions and not an unreasonably high bond.

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 so it is improper to consider "what he did" before he is convicted of doing it.

"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. See Jones v. Grimes, 219 Ga. 585, 134 S.E.2d 790 (1964)." Rock v. Lowe, 893 F.Supp. 1573, 1582 (1995). The nature of the new charge is not even relevant, except to the extent that the potential sentence is so severe that the Defendant may flee.

Remember that a ruling on pretrial bail cannot be based on unreliable and uncorroborated evidence.

The goal of all judicial proceedings is to consider evidence that is reliable and relevant.  O.C.G.A.§ 24-1-1 states: "The object of all legal investigation is the discovery of truth.  Rules of evidence shall be construed to secure fairness in administration, eliminate unjustifiable expense and delay, and promote the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined."