Oregon's Bail Requirements Violate the Constitutional Right to Bail
by: Rjohnson • September 29, 2011 • no comments
Historically, bail referred to a deposit of money or property with the court to ensure attendance at a future court date. That's it. It included a promise to appear in court, but no other promises. It did not permit seizure of bail other than for failure to appear, so bail could not be applied to fines, costs, violation of a release agreement, or unrelated judgments. Modern bail includes various other requirements, and those requirements may violate Oregon constitutional guarantees.
Article I, section 14, of the Oregon Constitution, provides:
"Offences, except murder, and treason, shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong."
Further, Article I, section 16, of the Oregon Constitution provides that "excessive bail shall not be required." The provision from section 14 creates a right to bail similar to what was available the constitution was originally adopted. Knutson v. Cupp, 287 Or 489 (1979). Knutson sets out text from the mid-nineteenth century Deady Code, which, the court holds is instructive as to what the framers meant by Article I, section 14. The old statutory text is just about providing property to court, or a surety, in exchange for release. There's nothing about giving up drinking, moving out of your house, not touching firearms or small children, or peeing into a cup.
In light of what Knutson says about the right to bail, I don't think the court can require both a security agreement and bail; I think it's one or the other. The statutes, however, are an awful morass, and the few cases don't help.
ORS 135.255 provides:
Release agreement. The defendant shall not be released from custody unless: the defendant files with the clerk of the court in which the magistrate is presiding a release agreement duly executed by the defendant containing the conditions ordered by the releasing magistrate OR deposits security in the amount specified by the magistrate in accordance with ORS 135.230 to 135.290. (formatting added.)
That makes it look like one or the other. But ORS 135.265 provides:
Security release. (1) If the defendant is not released on personal recognizance under ORS 135.255, or granted conditional release under ORS 135.260, or fails to agree to the provisions of the conditional release, the magistrate shall set a security amount that will reasonably assure the defendant's appearance. The defendant shall execute the security release in the amount set by the magistrate. (2) The defendant shall execute a release agreement and deposit with the clerk of the court before which the proceeding is pending a sum of money equal to 10 percent of the security amount, but in no event shall such deposit be less than $25.
So I think that says that, even if released with bail, i.e., security, the defendant has to sign a security release. Knutson says so, although it's about somewhat different former statutes. But Knutson does not address any constitutional issues about requiring release agreements along with bail, or discuss what conditions may be included in the release agreement. Finally, the manner of construing constitutional issues has evolved. See Priest v. Pearce, 314 Or 411 (1992) and Rico-Villalobos v. Giusto, 339 Or 197, 208 (2005) (interpreting the right to bail from Article I, sec 14 of the Oregon Constitution).
ORS 135.280 lets the court seize the security if the defendant violates the release agreement, and it requires seizing the security to pay child support. That is more onerous than the classic bail requirements explained in Knutson. And it's not just a matter of the defendant paying his own debts; the old system clearly contemplates other people providing security for the defendant. Under the Deady Code, the third party would be guaranteeing the defendant's appearance in court and bearing the risk that he didn't appear. Under the new system, the third party also has to guarantee, or pay, the defendant's other debts, gambling on the defendant's willingness to obey a no-drinking condition or whatever other condition the court imposes. That is more onerous than the bail requirements under the Deady Code and therefore, those requirements violate the right to bail under Article I, section 14.
The current statutes have at least one other issue, too. Shortly after Measure 11 was enacted, the legislature passed a statute forbidding release unless the court found that the defendant would not commit more crimes while on release. That provision was found unconstitutional in State v. Sutherland, 329 Or 359 (1999), but there are similar, less-onerous requirements in ORS ch. 135, such as forbidding release if the court finds that the defendant will commit new crimes while on release. That sounds like an awfully hard finding to make, but, assuming the court could make the finding using constitutionally-adequate evidence, it does not sound like a lawful basis to deny release under Knutson.
Bail issues are hard to raise, and a release decision of any sort could easily moot out before an appellate court would take action. You can seek mandamus or habeas, but that probably requires an exceptional client, a wealthy family willing to provide bail or pledge property, or an unusually long delay before trial. Some issues relating to bail do not moot out at conviction. For example, some counties will charge violation of a release agreement as contempt. (I don't think that's contumacious, because there is no order by a judge, but it's debatable.) In addition, the statutes provide for forfeiture of bail if the defendant violates the release agreement. A conviction or a bail forfeiture would be a non-moot injury that could be appealed in the ordinary course.
The alleged violation can also have other effects, like canceling court dates, which might affect speedy-trial issues. A defendant who signs a release agreement might be held to it regardless of whether his signature was extracted by illegal release conditions. It is worth arguing, at the release hearing or afterward, that the release agreement is invalid if the defendant has provided bail. Actually resolving that issue would probably require habeas or mandamus. Or, more plausibly, a client who signs the release agreement and the violates it. That sort of client provides the opportunity to make all sorts of creative arguments.
