If you post bail, can you also be required to follow release conditions?
by: Rjohnson • September 1, 2014 • one comment
I have a client charged with contempt in Washington County for failure to abide by the conditions of security release. The statutes are not artfully drafted, but I am convinced that he is not guilty, because there is no lawful basis to impose most release conditions for someone, like my client, who has posted bail. (As a possible corollary, the state can’t seize bail based on a violation of the release agreement). (In a later post, I’ll explain why violation of a release agreement is not contumacious for a person who has posted bail.)
The statutes appear at ORS 135.230 et seq. There are three ways for a person to be released prior to trial: personal recognizance, conditional release, and security release. ORS 135.230. As explained below, conditional release can carry a lot more conditions than security release.
“‘Personal recognizance’ means the release of a defendant upon the promise of the defendant to appear in court at all appropriate times.” ORS 135.230(6).
“‘Conditional release’ means a nonsecurity release which imposes regulations on the activities and associations of the defendant.” ORS 135.230(2). Permissible conditions for conditional release appear in ORS 135.260, and it includes restrictions on where the defendant can live and work and with whom the defendant can associate.
“‘Security release’ means a release conditioned on a promise to appear in court at all appropriate times which is secured by cash, stocks, bonds or real property.” ORS 135.230(12).
There is no provision permitting the court to impose conditional-release restrictions on a defendant who is released on bail. The closest provision is ORS 135.230(9), which defines ‘release agreement’ as “a sworn writing by the defendant stating the terms of the release and, if applicable, the amount of security.” That suggests that security release can include terms of release, just like conditional release can. But the only permissible terms are to require the defendant to attend trial. Sexson v. Merten, 291 Or 441, 448 (1981). That requirement will be read broadly, so in Sexson the defendant could be required to attend alcohol treatment because not being drunk made him more likely to go to trial. That’s dubious, but the court was very clear that the condition was only permissible for that reason.
ORS 135.280 provides that if a person fails to comply with the conditions of a release agreement, the court may order the forfeiture of the security. But the only conditions that can be attached to a security release agreement are those that will ensure the defendant’s appearance. Sexson, 291 Or 441. Accordingly, the court cannot seize the security as a sanction for failing to follow other release conditions.
The Court of Appeals held to the contrary in State v. Normile, 52 Or App 33, 42 (1981). The court in Normile upheld the forfeiture of the security deposit for a person released on bail who violated the security release in various respects, including the commission of a new crime and not including a failure to appear.
Normille is wrong. By approving security release conditions not related to subsequent appearance in court, it conflicts with Sexson. The Normille opinion does not cite or refer to Sexon, and it does not appear that such an argument was made.
One distinction between Sexon and Normille is that the former was a mandamus action to modify the release conditions before trial, and the latter was an appeal from a forfeiture order. It’s certainly a bad strategy to violate the release agreement and then argue that it was unlawful, but my clients often exercise bad judgment before I am involved, and sometimes even afterward. In my view, it is unlawful if the jail requires the defendant to agree to release conditions before the defendant can be released on bail; most criminal defendants are entitled to release on bail. Hanson v. Gladden, 246 Or. 494 (1967); Or Const, Art I, sec 14. I would advise a client to follow whatever conditions the jail imposes, and I could seek a trial-court ruling, and failing that a mandamus ruling, that the conditions are unlawful.
