CULLMAN COUNTY – In response to our readers’ questions concerning bail bonds, specifically how amounts are determined, we dug into the matter and will present a four-part series. In this first part, we present an overview, drawn from the Alabama Rules of Criminal Procedures (ARCP) and other documents. Look for part 2: law enforcement, part 3: courts and part 4: legislative to follow soon.
What is a bail bond?
Bail is an amount of money paid, or property pledged to a court to secure the release of an accused person prior to hearings or trials. It is given to help guarantee that the defendant shows up at court when he or she is supposed to do so. Bonds can take three main forms:
- Recognizance bond – For cases in which the bail amount might be very low and the defendant is considered to be a low flight risk, that person might simply sign a pledge to pay a certain fine if the court date is missed.
- Property bond – The defendant or others acting on his or her behalf sign over interest in real property of a given dollar value to secure the defendant’s release. Think of it as a temporary mortgage to the court. These are often set with high dollar amounts.
- Cash bond – The defendant or others acting on his or her behalf must deposit actual money with the court. This is where bail bondsmen often come in. These bonds are often much lower than property bonds, but can be more difficult to procure, since they require actual money in-hand.
Upon completion of the case, the money is returned or property reverts to the owner’s control. If the defendant fails to appear in court on the set date, cash money is forfeited and property can be seized.
Who has a right to bail?
The 8th Amendment contained in the Bill of Rights of the United States Constitution reads:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Article 1, sec. 16 of the 1901 Constitution of the State of Alabama reads:
“That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.”
Section 7.2 of the ARCP begins:
“Any defendant charged with an offense bailable as a matter of right may be released pending or during trial on his or her personal recognizance or on an appearance bond unless the court or magistrate determines that such a release will not reasonably assure the defendant’s appearance as required, or that the defendant’s being at large will pose a real and present danger to others or to the public at large.”
Defendants have a right to be released on bond pending hearings and trials, unless they are charged with capital offenses or the judge/magistrate considers them to be flight risks or threats to the community.
Judges are given wide leeway in assigning bail amounts. To a degree, it’s a judgment call (no pun intended) on their part, but it’s an educated judgment call informed by numerous factors.
Fair vs. excessive bail
So how does the system determine what is fair and what is excessive? The ARCP sets forth guidelines to be considered when imposing bail:
1. The age, background and family ties, relationships and circumstances of the defendant
2. The defendant’s reputation, character and health
3. The defendant’s prior criminal record, including prior releases on recognizance or on secured
appearance bonds, and other pending cases
4. The identity of responsible members of the community who will vouch for the defendant’s reliability
5. Violence or lack of violence in the alleged commission of the offense
6. The nature of the offense charged, the apparent probability of conviction, and the likely sentence, insofar as these factors are relevant to the risk of nonappearance
7. The type of weapon used, e.g., knife, pistol, shotgun, sawed-off shotgun
8. Threats made against victims and/or witnesses
9. The value of property taken during the alleged commission of the offense
10. Whether the property allegedly taken was recovered or not; damage or lack of damage to property allegedly taken
11. Residence of the defendant, including consideration of real property ownership, and length of residence in his or her place of domicile
12. In cases where the defendant is charged with a drug offense, evidence of selling or pusher activity should indicate a substantial increase in the amount of bond. (More on this later)
13. Consideration of the defendant’s employment status and history, the location of defendant’s employment, e.g., whether employed in the county where the alleged offense occurred, and the defendant’s financial condition
14. Any enhancement statutes related to the charged offense
These considerations lead to a few examples. In cases of similar offenses:
- A defendant who is young and healthy may get a higher amount than an elderly or ill defendant.
- A defendant who lives or has significant connections outside the state may get a higher amount than one whose roots are local.
- A repeat offender with a history of criminal behavior may get a higher amount than a first-time offender whose prior reputation was positive.
- A defendant with personal access to substantial financial resources may get a higher amount than a defendant who is poor.
- A defendant in a drug distribution or trafficking case is likely to get a higher amount than defendants in cases of other crimes within the same felony class. (More on this later.)
The ARCP continues with a schedule of recommended ranges for various charges:
- Capital felony $50,000 to No Bail Allowed
- Murder $15,000 to $ 150,000
- Class A felony $10,000 to $ 60,000
- Class B felony $ 5,000 to $ 30,000
- Class C felony $ 2,500 to $ 15,000
- Drug manufacturing and trafficking $ 5,000 to $1,500,000
- Class D felony $1,000 to $ 10,000
Misdemeanors (not included elsewhere in the schedule):
- Class A misdemeanor $ 300 to $ 6,000
- Class B misdemeanor $ 300* to $ 3,000
- Class C misdemeanor $ 300 to $ 1,000
- Violation $ 300 to $ 500
Municipal Ordinance Violations $ 300 to $ 1,000
- DUI $ 1,000 to $ 7,500
- Reckless driving $ 300 to $ 1,000
- Speeding $ 300 to $ 500
- Other traffic violations $ 300 to $ 500
The schedule is, according to explanatory notes in the ARCP, only a guideline except in cases where the law assigns a specific amount. Judges may even impose amounts above or below the range, though they are cautioned, “courts should exercise discretion in setting bail above or below the scheduled amounts.”
The drug issue
Why do people charged with drug distribution/trafficking face such high bond amounts?
First, let us define “trafficking.” Drug trafficking involves possession of large amounts of a drug with intent to sell or distribute, and carries substantially higher penalties than simple possession. It is based on amounts: the justice system assumes that possession of very small amounts would be for personal use. On the following table from the Code of Alabama section 13, the amounts shown are the minimum amounts of each drug that would lead to a trafficking charge. Many drugs are included in the Code; those common in the Cullman area are included here.
- Marijuana/Cannabis…………………………………….1 kilo/2.2 pounds
- Cocaine………………………………………………….28 grams/.99 ounces
- Opiates, including Morphine and Heroin……………….4 grams/.14 ounces
- Amphetamines………………………………………….28 grams
- Methamphetamine………………………………………28 grams
The Code and ARCP both note that persons arrested for trafficking who are found to be in possession of a firearm at the same time will face additional penalties, as will those arrested for distribution to minors or distribution within 3 miles of a school or public housing facility. These issues might also figure into bond considerations.
Statistics concerning drug defendants
Below are a few facts about drug defendants (those arrested but not yet convicted) from the Federal Bureau of Justice Statistics, that might shed some light on the system’s particular targeting of accused drug dealers for high bond amounts.
On average, more than 30 percent of defendants who are released while awaiting trial on drug charges will commit another similar offense before they go to trial.
Almost one in four federal drug defendants fail to show at scheduled court appearances.
Released drug defendants have the highest re-arrest rate of any defendant category.
Almost one-third of persons arrested for drug-related offenses will commit the same or a similar offense while awaiting trial. The commission of a second crime while out on bail can lead to the right to bail being revoked, and may possibly result in bail paid or pledged being forfeited to the court. Therefore, high bail amounts for drug cases not only increase the chances of defendants showing up for court, they also encourage those most likely to repeat their offense to obey the law while they wait.
Based simply on the documentary information presented here, the following comparison could be drawn:
- A 60-year old man, who is a Cullman County native and lifelong resident, is found in possession of an ounce of homemade meth. He has only a minor mark on his previous record, and no income other than SSI Disability. His bail will probably be fairly low on the scale, unless other issues are found.
- A 40-year old woman is arrested after injuring her child in a fit of rage. She too is a lifelong area resident, and has a history of mental illness for which she recently changed medications. She may also receive a low bond amount; however, the child might be temporarily removed from the home and the suspect assigned to psychiatric evaluation.
- A 25-year old man who lives out of state, is caught in Cullman County with 3 pounds of marijuana. The pot is high-grade, indicating that it was probably imported from a Central American producer. He has a pistol in his car when he is stopped by police. Based on his out-of-state and possible out-of-country connections (flight risk) and the additional issues, his bail will likely be much higher than the first two suspects.
Note: If the first two suspects are assigned property bonds and the third a cash bond, then the first two amounts might be higher than the third, but still easier to procure.
Each case is unique, with circumstances distinct even from other similar cases; and each must be considered individually.
In parts 2-4, we will hear from Cullman County Sheriff Matt Gentry, Cullman County District Attorney Wilson Blaylock and Rep. Corey Harbison, R-Good Hope on the issue of bail bond amounts.
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