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Crime and Punishment: Not for Bail Bonds

Thursday, February 9, 2012

Bail Bond GavelDo you fully understand the bail bond process?  Do you understand the role that bail plays in the criminal justice system?  According to our research the majority of people don't understand these things.  The purpose of bail is to do one thing and one thing only, and that is guarantee that the defendant shows up for all of their scheduled court dates.  Bail is about "appearance" it is not about punishment.  In fact, the eighth amendment states that there can be no "excessive bail"... loosely translated, that means that bail cannot be used as a punishment to prevent someone from being released.  It has to be reasonable and based on the severity of the accused crime, the history of the defendant and the current situation of that defendant. Do they live in the area? Do they have a job?  Do they have family nearby...are their strong ties to the community.  All of these questions must be considered in setting the amount of a bail bond.  While this is the intended purpose of bail, it is not always the reality.  

Recently in Durham North Carolina, Mayor Bill Bell is trying to establish a minimum 300,000 bail bond amount for anyone accused of illegally firing a gun in the city's limits.  Is this an example of "excessive bail" or bail being used as a punishment? Some lawyers think so for sure.  

Written by: Eric Granof

Read the recent article below from the Herald Sun.

Lawyers pan Bell’s $300K bail proposal
By Ray Gronberg

DURHAM – Mayor Bill Bell’s call this week for a law establishing a $300,000 minimum bond for people accused of illegally firing a gun in the city limits is running into the flak he expected from local defense attorneys.

The proposal, offered Monday in Bell’s annual State of the City address, drew criticism from two lawyers who noted that bond under the law only allowed to ensure that a person accused of a crime shows up for his or her trial.

“The mayor may be quite skilled at managing local government, but he is out of his field with respect to judicial matters,” said Bill Thomas, a lawyer who’s criticized Bell’s handling of the issue before. 

John Fitzpatrick, the president of Durham’s criminal defense bar, shared Thomas’ unhappiness.

He faulted Bell for failing to consult the group before floating the idea, even if only to gather information.

“Often whenever there is a violent crime, there is a bash on bonds,” Fitzpatrick said via email. “Magistrates do not have crystal balls, nor do [district attorneys] or defense lawyers. What we do have is our current law and Constitution that makes it clear that bonds are not to be used as punishment.”

Bell in offering the proposal on Monday was returning to a theme he’s hit on before, usually when there’s been a spate of headline-making violence in the city.
The question of bonds figured prominently in Bell’s 2008 State of the City speech, and the mayor raised it again last August after a man who was out on bond on a murder charge was accused of a bank robbery.

The mayor’s argument, consistently, has been that high bonds in gun-related cases send a crime-deterring message that violence won’t be tolerated in Durham.
But Fitzpatrick and Thomas said there’s another message to consider, namely that authorities with some regularity have trouble proving the guilt of those they accuse of crimes.

Fitzpatrick pointed to a 2010 shooting case that garnered attention because two men were charged with firing weapons at Police Chief Jose Lopez as they and the chief were driving in the South Roxboro Street corridor.

The shooting was the product of a gun battle the men were allegedly having with the occupants of another car. 

Both suspects were arrested in July 2010, and remained in jail until September of last year under steep bonds.

But after reviewing the case file, forensic reports and ballistics evidence, prosecutors wound up dismissing the case for lack of evidence. 

Lopez said he recognized one of the men as his assailant, but the chief wasn’t able to identify him in a photo lineup.

Fitzpatrick said city officials in that case had made a point of boasting about “how they caught the two guys and justice would be served.” 

But a “year-plus goes by and … the charges were quietly dismissed and the individuals were released,” he said. “No media publicity on that release [and] no apology to them for losing almost a year and a half of their life.”

Thomas echoed the point, without alluding to a specific case.

“Witnesses are mistaken, evidence is wrongly gathered, investigations are flawed,” Thomas said. “To have a blanket bond for people who are presumed innocent is bad policy.”

He added that a $300,000 minimum in his view would be an “excessive bond” that could invite a legal challenge were officials to impose it.

The Bill of Rights to the U.S. Constitution says “excessive bail shall not be required.” The North Carolina constitution echoes that word for word.
In his speech Monday, Bell said he wants City Attorney Patrick Baker to draft proposed legislation for the council to present to Durham’s N.C. General Assembly delegation.

But one of the legislators who’d have to get behind the idea, state Sen. Floyd McKissick, D-Durham, on Wednesday said he’d like hear opinions not just from the mayor but the full City Council, Durham’s senior judges and likely the County Commissioners too.

“I always believe in being inclusive,” McKissick said. “The mayor, I appreciate his advocacy. At the same time, I want to hear from others who are involved with the criminal justice system day in and day out, on the front lines.” 

He added that the chances of the mayor’s proposal gaining traction in the General Assembly are “yet to be determined,” as legislators would likely want to gauge its “full and complete implications,” not just for Durham, but also for other communities. 

Read Original Article: Lawyers pan Bell’s $300K bail proposal