19 February 2015

How Far Does Bail/Bond Extend?

Last week, I saw a bondsman answering a show cause.  The defendant had been found  guilty, sentenced, and given a delayed date to self report to the jail.  Shockingly, he did not follow through on his promise to self-incarcerate.  The judge called the bondsman to court to answer why the bond should not be forfeited to the court. The bondsman showed up with a lawyer (which was tres unusual and why I started paying attention) and the lawyer argued that after the sentencing the bond no longer existed and therefore could not be forfeit.  The judge looked on quizzically and then did what judges always do in show causes against bondsmen - he set the case off for a number of months to see if the fugitive could be found.

I was left wondering when exactly a bondsman's obligation ends, so I went and looked.  To begin with one of the conditions which a judge must consider in setting a bond is whether a defendant "will not appear for trial or hearing or at such other time and place as may be directed."  I suspect the "such other time and place as directed" is probably meant to cover things like reporting to pre-trial services for pre-trial monitoring (drug tests, etc.), but it is language broad enough to include reporting to jail at an ordered time. However, this is just information the judge is supposed to use to determine the defendant's bond not a description of the bond itself. Va. Code secs. 19.2-120 and 121.

You have to go back to the definitions to actually resolve this question.  Per  Va. Code sec 19.2-119, bail is "pretrial release" and bond is the posting of a sum of money as a condition of bail. Thus, it seems the bondsman's attorney was correct. Once the trial was over there was no bail and therefore no bond as a condition of bail.

The next question which came to my mind was whether bail extends from the period of the guilt/innocence part of the trial and the sentencing hearing (typically 2-3 months later). It's something of an ambiguity under the sections on bail - particularly since the General Assembly put trial under Chapter 15 of 19.2 and sentencing under Chapter 18.  However, a little more research finds a specific addendum to bail requirements under 19.2-298 "Pronouncement of Sentence": "Pending pronouncement, the court may commit the accused to jail or may continue or alter the bail except that in those cases where the accused is convicted of a murder in the first degree, the court shall commit him to jail and he shall not be allowed bail pending the pronouncement of sentence." Thus, even if the sentencing is not part of the trial a defendant can have bail pending it.

A more interesting question might be whether a judge or magistrate can authorize bail prior to a probation violation hearing under 19.2-306.  People on probation generally end up in jail one of two ways prior to their probation violation hearing. First, they are arrested by their probation officer under the old parole board powers (PB15); locally this is usually quickly replaced by a capias (bench warrant) and the PB15 is lifted. Second, they abscond  and have a capias issued for them to be brought before the judge. The Supreme Court of Virginia has been clear in stating that probation hearings are post conviction proceedings, not under the same rules as a criminal trial.  See Henderson v. Commonwealth.  I can find no statute specifically authorizing bail for someone facing a probation violation hearing.

Another approach to looking at the possibility of bail for a person with a capias for a probation hearing would be to look to the rules which apply to capiases. 19.2-234 and 19.2-80 require an officer who arrests someone per a capias to bring that person in front of a judicial officer for a hearing as to bail.  The judicial officer must then either admit the accused to bail or send him to jail.  Thus, it appears that it is from the capias which the defendant receives relief when a bail is given. This is the best explanation which I can find for the manner in which bail is currently given when a capias is served on someone for a probation violation.

However, the capias is not the basis for decision making in setting a bail. All that it does is order the person taken into custody and brought before the judge.  It can be for an indictment (which culminates in a trial), indirect contempt of court (which culminates in a trial), or a probation violation hearing (which culminates in a post trial hearing). Thus, there is no pre-trial release in a probation violation hearing and therefore no bail available. Thus, no judicial officer should grant a bail/bond on a capias for a probation violation.

Is this the way it works in the real world? Nope. Magistrates and judges put people charged with violating probation on bail all the time.  Maybe they know some of some statute I could not find authorizing it.  Maybe they just do it because everyone always has and no one has bothered to look at the statutes before.

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