Setting bail up to judges

Posted: Monday, June 09, 2003

Ever read through the police and court reports and wonder why people have different bail amounts?

Judges at the Kenai Courthouse often must decide what the bail amounts will be for defendants facing criminal charges, and it's a position not taken lightly.

If bail is set too high, a defendant's entitlement to bail might be breached, and if bail is too low, the victim or the community at large could be put at risk.

"A judge hearing bail has a lot of discretion," said Superior Court Judge Harold Brown.

"You always have to be concerned with balancing the risk to the community with a person's right to be released pending trial," he said.

Initially, when a person is arrested for a misdemeanor crime in the central Kenai Peninsula, he or she is taken to the Wildwood Pretrial Facility where correctional officers set an appearance bond amount based on a list of standard requirements for conditions of release.

For more serious felony crimes, no bail schedule is established.

The bail amount set at the jail is an appearance bond, meaning the defendant promises to appear at all future scheduled court appearances.

At the first court appearance, normally within 24 hours of the arrest, the defendant will come before a judge who then sets bail in the form of an appearance bond and a performance bond.

"An appearance bond assures the court of your appearance," Brown said. "That's typically what one buys from a bail bondsman.

"A performance bond guarantees a person will conform to all conditions of release."

In addition to setting dollar amounts for bail, courts may add a list of conditions a defendant must follow in order to be released pending trial, including obeying all local, state and federal laws and ordinances, notifying the court of any change in residence or mailing address and not having any direct contact with a list of persons who might have been involved in the crime.

In crimes involving alcohol or substance abuse, conditions of release also might include prohibiting the person from consuming alcohol or being where alcohol is sold or consumed.

Another common condition of release is that someone be appointed as a third-party custodian of the defendant. The custodian assures a defendant's appearance at all court hearings.

In determining conditions of release, Alaska statutes require the judge take into account a list of factors, including the nature and circumstances of the offense, the weight of the evidence against the person, the person's family ties, employment and financial re-sources, as well as the person's character and record of convictions.

Brown said the judge setting bail during the formal arraignment hearing usually has an opportunity to review the person's previous arrest and conviction record or lack of a record and will adjust the amount of bail originally set at the jail.

The appearance bond originally set at the jail might be $2,500, for instance, but after reviewing the person's record, the judge might set bail at $2,500 for appearance, plus an additional $5,000 performance bond.

"Usually a judge would in-crease bail because the judge has access to more information than the correctional facility officer," Brown said.

"It may be determined that the person is a flight risk, or the (district attorney), who has access to the police report, may have additional information that would require increasing bail," he said.

If the person resides in the area, meaning they are not considered to be a flight risk, and the person does not have any serious prior convictions, Brown said he orders their release on a $500 unsecured bond.

In the case of a driving-under-the-influence arrest, if a person is released on bail and wants to continue driving, he or she also may need to meet other requirements of the Alaska Department of Motor Vehicles.

"Sometimes, they may also have to post an SR-22 to the (Department of Motor Vehicles)," he said. An SR-22 is proof of future financial responsibility.

"If they wish to continue to drive after they're arrested, they must go to the DMV," Brown said.

In some cases, a person might be released on his or her own recognizance, meaning the defendant does not have to post bail.

"O.R. release is a naked promise to appear," Brown said.

He said a person could even be released on his or her own recognizance in some felony cases, "for example if it is a nonviolent crime, the person has lived in the community all his or her life, is represented by an attorney and has no prior record."

More often, however, O.R. release occurs in misdemeanor cases.

Special circumstances also govern release on bail for such alleged offenses as those involving controlled substances, cases involving stalking, domestic violence and sexual assault.

While bail most often is considered pending trial, a person also may be entitled to bail after being convicted of an offense if the person has filed an appeal to the verdict.

However, Alaska statutes provide that a person may not be released either before sentencing or pending appeal if the person has been convicted of an unclassified felony such as murder or kidnapping, a class A felony such as robbery, or a class B felony if the person has been previously convicted of an unclassified felony or class A felony.

While bail is an entitlement protecting a defendant's rights, it also protects the community and the victim, Brown said.

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