Right to Bail

IDAHO CONSTITUTIONARTICLE I, SECTION 6

RIGHT TO BAIL -- CRUEL AND UNUSUAL PUNISHMENTS PROHIBITED. All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great. Excessive bail shall

not be required, nor excess fines imposed, nor cruel and unusual punishments inflicted.

UNITED STATES CONSTITUTIONBILL OF RIGHTS

ARTICLE VII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Idaho Bail ActStatement of Policy

The Idaho Legislature finds and declares:

• Bail, in criminal cases, is a constitutional right subject to certain limitations;

• The Act is intended to provide a uniform and comprehensive statewide process for the administration of bail in criminal cases to: – Ensure the appearance of defendants before the courts; – Protect a defendant’s constitutional right of defendants to bail; and– Ensure the protection and safety of victims, witnesses and the public.

Idaho Code § 19-2902

Limitations on Right to Bail

• Matter of Right:– Before a plea or verdict of guilty

• Except when the offense charged is punishable by death

• Discretionary with the court:– After guilty plea or verdict, before sentencing; – During the pendency of an appeal

• Except when the defendant has been sentenced to death or life imprisonment;

– In probation violation proceedings – Upon a finding of a violation of the conditions of release

Idaho Code § 19-2903

Conditions of Release

Objectives• Ensure the appearance of the defendant; • Ensure the integrity of the court process and Constitutional Rights; • Ensure the protection of victims and witnesses; and • Ensure public safety. Idaho Code § 19-2904Idaho Criminal Rule 46 (c)(10) permits the court to consider “What

reasonable restrictions, conditions and prohibitions should be placed upon defendant's activities, movements, associations and residences.”

Surrender of Defendant

• Prior to Forfeiture• Must be to the sheriff of the county where the

action is pending• Notice must be given to the Court and

Prosecuting agency within 5 days– If Properly made, Bail is exonerated

• May be by surety agent or defendantIdaho Code § 19-2913

Forfeiture of Bail

If defendant fails to appear without sufficient excuse, court shall immediately• Enter the defendant's failure to appear in the minutes• Order forfeiture of the bail• Issue a bench warrant for the arrest of the defendantClerk shall provide written notice to the person posting bail within five (5) business days

of the order of forfeiture• By first class mail• To the last known address If bench warrant is quashed within 180 days after the order is entered, the forfeiture

shall be set aside.The court shall notify the person posting bail that forfeiture has been set aside within

five (5) business days of the date the bench warrant was quashed and bail reinstated.Idaho Code § 19-2915

Voluntary Appearance

Court may set aside forfeiture• If the defendant appears in court• Defendant satisfactorily explains his failure to appearBefore bail may be reinstated, the court shall quash

any bench warrant and set aside any order of forfeiture of the bail. The court then must provide written notice of reinstatement of bail to the person posting bail within five (5) business days.

Idaho Code § 19-2916

Motion to Set Aside

Person posting bail may file a motion within one hundred eighty (180) days after an order of forfeiture to set aside the forfeiture.

The court may set aside the forfeiture in whole or in part.The court may impose conditions for setting aside

forfeiture as established by the Idaho Supreme CourtThe court must find that justice requires forfeiture to be

set asideIdaho Code § 19-2917

Supreme Court RulesIn deciding whether justice requires forfeiture to be set aside, the court must consider all

relevant factors, including but not limited to: • the willfulness of the defendant’s violation of the obligation to appear• the participation of the person posting bail in locating and apprehending the defendant• the costs, inconvenience, and prejudice suffered by the state as a result of the defendant’s

violation of the obligation to appear• any intangible costs• the public’s interest in insuring a defendant’s appearance• any mitigating factors• whether the state exhibited any actual interest in regaining custody of the defendant

through prompt efforts to extradite him• whether the bonding company has attempted to assist or persuade the defendant to

expedite his return to Idaho by exercising his rights under the Interstate Agreement on Detainers

• the need to deter the defendant and others from future violationsIdaho Criminal Rule 46(h).

Fry FactorsState v. Fry, 128 Idaho 50, 910 P.2d 164 (Ct. App. 1994)Question: did incarceration in another jurisdiction provide a sufficient excuse

for Fry’s failure to appear as a matter of lawCourt reiterated that forfeiture is discretionaryCourt identified several factors to consider: 1) willfulness of defendant's

violation of bail conditions; (2) surety's participation in locating and apprehending the defendant; (3) costs, inconvenience, and prejudice suffered by the state as a result of the violation; (4) any intangible costs; (5) public's interest in ensuring a defendant's appearance; and (6) mitigating factors

No per se rule excusing failure to appear based on incarceration in another jurisdiction

Court also has discretion to determine whether to forfeit all or part of the bail

Other Case Law

State v. Abracadabra Bail Bonds, 131 Idaho 113, 952 P.2d 1249 (Ct. App. 1998)

Court does not abuse its discretion by declining to forfeit bond based on inaccurate information explaining the defendant’s failure to appear

Decision to not forfeit based on Court’s perception that defendant has sufficient reason for failure to appear does not preclude court from forfeiting bond for later unexcused failure to appear

Bail undertakings are contractual in nature. Failure to pay the bond is enforceable by the prosecuting agency through a separate civil action – not contempt proceedings in the criminal case

State v. Quick Release Bail Bonds, 144 Idaho 651, 167 P.3d 788 (Ct. App. 2007)

If forfeiture of the bond would result in a “windfall to the state,” the Court can order partial exoneration

Additional factors to consider:• whether the State exhibited any actual interest in regaining

custody of the defendant through prompt efforts to extradite him

• whether the bonding company has attempted to assist or persuade the defendant to expedite his return to Idaho by exercising his rights under the Interstate Agreement on Detainers

• need to deter the defendant and others from future violations

Recent unpublished opinions suggest:Deportation is not a per se “sufficient reason”

excusing failure to appear – person posting bond must take some action to notify the court and state of pending deportation

Voluntary flight to Mexico is not a “sufficient reason” excusing failure to appear – state has interest in preserving ability to prosecute defendant and failure to request extradition is not evidence of state’s disinterest in procuring defendant; court can consider the “assumption of the risk” by the surety

Other Considerations• Actual notice of forfeiture governs – if notice has a clerical error such

as date or case number, the error does not invalidate the notice• Court cannot grant extension of time of 180 day time period• What risk was undertaken – Idaho’s bailbonds are appearance

bonds; violations of terms and conditions of release may require exoneration

• Has there been a change in condition – did Court authorize defendant to travel outside the jurisdiction, resulting in Defendant’s flight

• Defendant’s arrest in another jurisdiction – can surety secure defendant’s presence in Idaho; does State initiate timely extradition proceedings

Interstate Agreement on DetainersThe Interstate Agreement on Detainers is an interstate compact authorized by Congress to provide a cooperative agreement between party states on detainers. The Agreement establishes procedures for the transfer of a prisoner incarcerated in one state to temporary custody in a second state for disposition of charges pending there. It also provides that a prisoner against whom a detainer has been lodged due to charges pending in another jurisdiction may compel adjudication of those pending criminal charges by delivering a "request for a final disposition" to the jurisdiction that lodged the detainer. When such a request is properly presented, the defendant must be brought to trial on the pending charges within 180 days or, absent a showing of good cause for a continuance, the charges must be dismissed.

The Agreement addresses concerns that untried charges pending in other jurisdictions cause difficulties in securing speedy trial rights and disrupt rehabilitation efforts.

The Agreement does not apply unless the receiving state has filed a written detainer with the sending state.

Pretrial detainees cannot use the Interstate Agreement on Detainers.

Persons incarcerated in a jail cannot invoke the procedures set forth in the Agreement.

The Agreement does not apply to probation violation proceedings.

Exoneration of BailBail shall be exonerated if:

• Defendant has appeared for all court proceedings as ordered and all charges for which the bail has been posted have been resolved by acquittal, dismissal or sentencing;

• Written notice of the court's order of forfeiture was not mailed to the person posting bail within five (5) business days of the order

• Written notice of the court's order to set aside the order of forfeiture and reinstating bail was not mailed to the person posting bail within five (5) business days of the order

• Defendant has been surrendered or has surrendered himself to the sheriff of the county where the action is pending before forfeiture and the certificate of surrender has been filed with the court

• Defendant has appeared before the court within one hundred eighty (180) days of the court's order of forfeiture

– When the person posting bail has not caused the defendant to be returned to the sheriff of the county where the action is pending, exoneration may be conditioned on payment of any costs incurred by state or local authorities arising from the transport of the defendant to the jail facility of the county where the charges are pending

– Costs may not exceed the amount of the bail posted• Court has revoked bail and has ordered that the defendant be recommitted.

Idaho Code § 19-2922

Fugitives

In a fugitive warrant case, the court may set bond in such sum as he deems proper– conditioned for defendant’s appearance before the

court at a time specified– for defendant’s surrender to be arrested upon the

warrant of the governor of this stateIdaho Code § 19-4516

You are not posting bond for his appearance in the other jurisdiction.

Other IssuesCredit bondsSupreme Court recently stated:• “The bail agent has a financial incentive to assure the defendant's appearance, typically because the surety

requires the bail agent to reimburse the surety for sums it pays on forfeited bonds. Whether or not the bail agent is willing to trust the defendant to pay the premium after posting bail is of no concern to the court.”

Two Jinn, Inc. v. District Court of Fourth Judicial Dist., 150 Idaho 647, 249 P.3d 840 (2011).• Court does not know how much a defendant has to pay to get out of custody

– Unpredictable– Bond as set may not mean the same thing for court, state and bail agent

Regulation of agentsCourts may have authority to limit ability to write bonds

Post Two Jinn supra, idaho Code § 19-2918 amendedIf the administrative district judge has reasonable cause to believe that a bail agent has committed any of the actions that could form the basis for a suspension of the bail agent’s license, the court shall immediately refer the matter to the director of the department of insurance for appropriate disciplinary action. The administrative district judge may also enter an order that the sheriffs and clerks of all counties in the judicial district shall not accept bail bonds submitted by that bail agent until the director has rendered a decision as to whether to suspend the bail agent’s licenseThe director shall immediately notify all judicial district trial court administrators of such decision.

Idaho Department of Insurance regulates bail agentsDOI must provide due process hearing under 41-1329A

Director must determine whether bail surety “intentionally, or with such frequency as to indicate a general business practice, fail to pay a claim for forfeiture after liability for payment has become reasonably clear.”Liability to pay forfeiture is “reasonably clear” when:

• Defendant has not appeared or has not been brought before the court within 180 days• motion to set aside the forfeiture, in whole or in part, has not been filed with the court within five (5) business days after

the expiration of the 180 day period

Penalty• Up to $10,000 administrative penalty

AND/OR• Refuse to continue or suspend or revoke an insurer's certificate of authority (may be in lieu of a fine)

• Authority to determine extradition boundaries• Conditions of Release