If you're going to set bail, it has to be reasonable and can't be excessive so $3.3 million won't work

 State v. Carter (ICA March 6, 2024)

Background. Samuel Carter was indicted for attempted murder in the second degree and firearms offenses. He was held in jail without bail. About four months later, Carter filed a motion for supervised release or, in the alternative, a motion to set bail. Carter argued that there had been no findings supporting the decision to hold him without bail. The prosecution opposed and attached a letter to the Circuit Court noting that there had been no bail report because of the no-bail determination. According to the pretrial services intake center, it would not assess Carter’s eligibility for supervised release unless and until the court sets bail first.


At the hearing on the motion, Carter asked that bail be set at $100,000. The prosecution objected and argued that there was a rebuttable presumption of detention, Carter posed a danger to the community, and there was a flight risk. The prosecution did maintain that even though he could be held without bail, bail should be set so that a bail study could be made by pretrial services. The circuit court—with the Honorable Judge Ronald G. Johnson presiding—set $3.3 million bail.


Carter filed another motion for supervised release or, in the alternative, a reduction of bail to $100,000. This time, pretrial services had a report that did not recommend supervised release because Carter did not have a stable residence, no verifiable employment, had a criminal record, and scored a “high risk.” A second report was file a month later stating that “supervised release sponsors” did not agree to take on Carter.


At the hearing on Carter’s motion, Carter testified and submitted exhibits. The circuit court denied the motion. Carter appealed pro se.


A note for appellate lawyers. The ICA treated Carter’s appeal from the orders denying his motions as an exception to the final judgment or order rule. First, Carter filed his notice of appeal before the actual orders denying his motions were issued. This makes it a premature notice of appeal and has the effect of being timely once the actual orders are issued. Hawai'i Rules of Appellate Procedure Rule 4(b)(4). Second, while the order was not a final order or judgment, the ICA found that the order met the collateral order exception. State v. Johnson, 96 Hawai'i 462, 470 n. 12, 32 P.3d 106, 114 n. 12 (App. 2001) (orders denying pretrial motions to reduce bail are appealable under collateral order exception). And so the ICA had jurisdiction to hear Carter’s appeal.


Hawai'i’s bail statutes and the Constitution. Criminal defendants are usually entitled to pretrial bail. “Any person charged with a criminal offense shall be bailable by sufficient sureties; provided that bail may be denied where the charge is for a serious crime.” HRS § 804-3(b). Pretrial bail for defendants who are not charged with a serious crime is “a matter of right and under the least restrictive conditions required to ensure the defendant’s appearance and to protect the public[.]” HRS § 804-4(a). Bail means a “security such as cash, a bond, or property[.]” Black’s Law Dictionary, 167 (10th ed. 2014).


When the court can set no-bail status. A court can hold a person in jail without bail for a “serious crime” if the court finds one of “serious risks” enumerated in HRS § 804-3(b):

(1) There is a serious risk that the person will flee;

(2) There is a serious risk that the person will obstruct or attempt to obstruct justice, or thereafter, injure, or intimidate, a prospective witness or juror;

(3) There is a serious risk that the person poses a danger to any person or the community; or

(4) There is a serious risk that the person will engage in illegal activity.

A crime is a “serious crime” means murder or attempted murder, any class A or B felony other than forgery in the first degree and failing to render aid under section 291C-12. HRS § 804-3(a).


The statute also has a series of rebuttable presumptions that determine when a person poses one of the “serious risks.” HRS § 804-3(b). Finally, the court, after a hearing, may hold a person without bail when it “finds that no condition or combination of conditions will reasonably assure the appearance of the person when required or the safety of any other person or community[.]” HRS § 804-3(d).


The circuit court’s findings supported the no-bail status. First, the ICA upheld the circuit court’s analysis supporting its no-bail status order. The circuit court found that Carter was charged with “serious crimes,” posed a serious flight risk and posed a serious risk of danger to persons and the community, and applied the rebuttable presumptions in HRS § 804-3(c). The circuit court then conducted the risk-mitigating analysis in HRS § 804-3(d). The ICA upheld the circuit court’s analysis and agreed that it had the discretion to hold Carter without bail.


Once the court exercised its discretion to set bail, the amount must be “reasonable” under HRS § 804-9 and not “excessive” pursuant to the Constitution. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” Haw. Const. Art. I, Sec. 12. When the court sets bail in a monetary amount, it must be “reasonable” and based on “all available information, including the offense alleged, the possible punishment upon conviction, and the defendant’s financial ability to afford bail.” HRS § 804-9.


The amount itself “should be so determined as not to suffer the wealthy to escape by payment of a pecuniary penalty, nor to render the privilege useless to the poor.” HRS § 804-9. According to the ICA, this meant that the statute ensures that courts do not “discriminate against indigent defendants and advantage defendants with financial means” when setting bail.


The ICA held that once the circuit court opted to set bail, it had to follow HRS § 804-9 and the excessive bail clause. The amount must be “reasonable” under the statute and not “excessive” under the Constitution. According to the ICA, it abused its discretion when it set bail at $3.3 million.


Carter was indigent and could not afford a lawyer. He had an income of $861 a month through Social Security benefits and owed $543.35 in unpaid rent. The circuit court did not analyze Carter’s financial abilities and failed to explain how $3.3 was “reasonable” and “based upon all available information” required by HRS § 804-9.


The ICA held that the circuit court erred by assessing the risks posed by Carter’s release when setting the bail amount. The risk analysis goes toward the question of whether to hold Carter without bail. It is “distinct and different from the financial circumstances analysis required under HRS § 804-9.” This amounted to an abuse of discretion. The ICA vacated the orders denying Carter’s motions and remanded the case for further hearings.


Graham said…
Bail may be denied where the charge is for a serious crime and there is a serious risk that the person will engage in illegal activity. It appears that the Judge could have just kept the defendant on a No Bail status. The only way for the law to have any meaning is to require that bail must be set or any Judge can just find a serious risk the person will engage in illegal activity, as most are charged with "B" felonies or higher and the State can always over charge to ensure that a person is denied bail in any amount.

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