State v. AndersonState v. Anderson
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The majority accurately sets forth the facts and procedural history in some detail. Lost in the thicket of the procedural history of this case, however, are several key points that are necessary for a full understanding of the claim of the defendant, Francis Anderson, that the imposition of a monetary bond under the circumstances of this case deprived him of his state constitutional right to bail. First, although the defendant had been released and transferred back to the Whiting Forensic Division of Connecticut Valley Hospital (Whiting) on a promise to appear on a previous felony assault charge at the time he allegedly committed his most recent assault, the trial court did not revoke the defendant’s release on the basis that he committed that assault while on pretrial release, which, under General Statutes § 54-64f (c),2 the court was authorized to do.3 Rather, the court imposed a monetary bond in the new case, and the defendant was transferred to the custody of the Commissioner of Correction because he could not afford to pay that bond. If the court had proceeded to revoke the defendant’s release pursuant to § 54-64f, the defendant would have been entitled to an evidentiary hearing prior to the revocation, at which the state would have been required to prove by clear and convincing evidence that the safety of others would be endangered by the defendant’s release. See General Statutes § 54-64f (c). Because the trial court imposed a monetary bond in the new case, however, no such hearing or proof of his dangerousness was required.
Moreover, because the defendant was committed at Whiting by virtue of his previous acquittal by reason of mental disease or defect, an order releasing him on a promise to appear—or, for that matter, any nonsurety bond—would have resulted not in his release into the community, but in his continued confinement at Whiting. Thus, as the trial court recognized, there was no risk that the defendant would fail to appear in court if released, and it is undisputed that a monetary bond was unnecessary to ensure the defendant’s appearance.
On appeal, the defendant claims that the imposition of a monetary bond for the purpose of ensuring that he would be detained pending trial based solely on the belief that he posed a threat to public safety violates his right to bail under article first, § 8, of the Connecticut constitution. For the reasons set forth hereinafter, I agree with this contention.5
Article first, § 8, contains two provisions pertaining to bail in criminal cases. First, like the eighth amendment to the United States constitution, article first, § 8, of the Connecticut constitution provides that excessive bail shall not be required. Although it had been argued that the prohibition on excessive bail under the eighth amendment implies that bail may not be denied,6 the United States Supreme Court rejected this view in United States v. Salerno, 481 U.S. 739, 755, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). In that case, the respondents challenged the constitutionality of the Bail Reform Act of 1984, which authorized the pretrial detention of a defendant if, after an evidentiary hearing, the court finds by clear and convincing evidence that ‘‘no condition or combination of conditions will reasonably assure the appearance of the [defendant] . . . and the safety of any other person and the community . . . .’’
In contrast to the eighth amendment, however, article first, § 8, of the Connecticut constitution expressly guarantees the right to bail in all but certain capital cases, providing that, ‘‘[i]n all criminal prosecutions, the accused shall have a right . . . to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great . . . .’’ Although we previously have not considered whether, in light of this additional protection, our state constitution prohibits the use of bail to protect public safety, we have concluded that a court may not deny bail outright except in cases falling within the exception expressly provided for in article first, § 8. See State v. Menillo, 159 Conn. 264, 269, 268 A.2d 667 (1970) (‘‘the bail provision of § 8 of article first of our constitution makes clear that it was intended that in all cases, even capital cases not falling within the exception, bail in a reasonable amount should be ordered’’). We also have recognized that the excessive bail clause of article first, § 8, ‘‘prevents a court from fixing bail in an unreasonably high amount so as to accomplish indirectly what it could not accomplish directly, that is, denying the right to bail.’’ Id. Thus, under our constitution, ‘‘[t]he right to be released on bail upon sufficient security is a fundamental constitutional right’’; State v. Olds, 171 Conn. 395, 404, 370 A.2d 969 (1976); and that right may not be denied except in the limited circumstances set forth in article first, § 8, itself. See, e.g., State v. Aillon, 164 Conn. 661, 662, 295 A.2d 666 (1972) (order) (following determination of United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 [1972], that death penalty as then imposed nationwide was unconstitutional, defendant, who had been charged in this state with murder, a capital offense as defined by statute, was no longer ‘‘being detained
Although the right to bail is guaranteed by our constitution, the administration of bail has long been governed by statute. The relevant procedures governing pretrial release are set forth in
For defendants charged with most misdemeanors, § 54-64a (a) (1) still requires the court to impose the least restrictive conditions necessary to ensure the appearance of the defendant in court, and § 54-64a (a) (2) sets forth factors relating to that purpose that the court may consider when setting conditions of release. For defendants charged with most felonies, however, § 54-64a (b) (1) now provides that ‘‘[the] court shall, in bailable offenses, promptly order the release of [the defendant] upon the first of the following conditions of release found sufficient to reasonably ensure the appearance of the [defendant] in court and that the safety of any other person will not be endangered . . . .’’ (Emphasis added.) Section 54-64a (b) (1) further enumerates the conditions that the court may set, from least restrictive to most restrictive, as follows: (1) a written promise to appear without special conditions; (2) a written promise to appear with nonfinancial conditions; (3) a bond without surety in no greater amount than necessary; and (4) a bond with surety in no greater amount than necessary. Section 54-64a (b) (2) sets forth certain factors that the court may consider in determining what conditions will ensure the defendant’s appearance and the safety of other persons. In addition to identifying factors relevant to ensuring the appearance of the defendant, § 54-64a (b) (2) also authorizes the court to consider ‘‘[1] the number and seriousness of charges pending against the [defendant] . . . [2] the [defendant’s] history of violence,[3] whether the [defendant] has previously been convicted of similar offenses
On the basis of this statutory language, the trial court in the present case determined that, although a monetary bond was not necessary to ensure the defendant’s appearance in court, § 54-64a (b) (1) nevertheless authorized it to set a monetary bond for the purpose of ensuring the safety of other persons. The defendant claims, however, that courts may not set financial conditions of release solely to protect public safety. Rather, the defendant contends, the purpose of bail under the Connecticut constitution is to ensure the appearance of the accused, and the right to be released ‘‘upon sufficient security’’ pursuant to article first, § 8, mandates that a trial court may set a monetary bond only in an amount necessary to effectuate that end.9 The defendant maintains that, because the trial court set a monetary bond solely to protect the safety of Whiting patients and staff by ensuring that he would be detained pending trial, the imposition of a monetary bond in this case violated his right to bail under article first, § 8.
We last examined the purposes of bail in State v. Ayala, 222 Conn. 331, 610 A.2d 1162 (1992), which presented the issue of whether article first, § 8, precludes courts from revoking a defendant’s bail for violating nonfinancial conditions of release. In Ayala, the defendant, Enrique Ayala, was arrested on several felony charges. See id., 335. Ayala initially posted the monetary bond set by the court and was released subject to certain conditions, one of which was that he not commit any crime while on release. Id. Shortly after his release on bond, Ayala was charged with second degree assault, and, two days later, he was charged with threatening. Id. Although he again was released on bond in those cases, the state sought to revoke his bond in the first case, claiming that revocation was warranted under § 54-64f because he had committed crimes in violation of the conditions of his release. Id., 335–36. After a hearing, the trial court found probable cause to believe that Ayala had committed a crime while he was released on bond, and also found by clear and convincing evidence that the safety of another person, namely, the
On appeal, Ayala claimed, inter alia, that the right to bail under article first, § 8, prohibited the court from revoking his bail without setting a new bond. See id., 342. We rejected that claim, explaining that ‘‘[t]he fundamental right to bail guaranteed under our state constitution must be qualified by a court’s authority to ensure compliance with the conditions of release’’; id., 347; and that, ‘‘[w]hile released on bail prior to trial, a defendant is still within the constructive custody of the law. State v. Bates, 140 Conn. 326, 330–31, 99 A.2d 133 (1953). The trial court retains jurisdiction over the conditions of release . . . and possesses the inherent authority to exercise powers; to implement and enforce laws; to exact obedience.’’ (Citations omitted; internal quotation marks omitted.) State v. Ayala, supra, 222 Conn. 347. We further explained that Ayala’s ‘‘failure to abide by the conditions of his release resulted in a forfeiture of his right to release’’; id., 348; and that, ‘‘[b]ecause [Ayala] was initially released on bail, the requirements of article first, § 8 . . . were met.’’ Id., 348–49. We also expressly observed that this conclusion was ‘‘not inconsistent with our statement in State v. Menillo, supra, [159 Conn.] 269, that the fundamental purpose of bail is to ensure the presence of an accused throughout all proceedings.’’ (Internal quotation marks omitted.) State v. Ayala, supra, 349. As we explained, the revocation of a defendant’s bail for the commission of an offense while he is on release is consistent with the purpose of ensuring the defendant’s appearance because ‘‘[i]t is reasonable to suppose that a defendant who is arrested and charged with the commission of additional and serious crimes while on pretrial release might, as a result of these charges, more readily be tempted to flee the jurisdiction.’’ Id.; see also Mello v. Superior Court, 117 R.I. 578, 582, 370 A.2d 1262 (1977) (‘‘When one free on bail commits other crimes, the pressure to flee the court’s jurisdiction and fail to appear when summoned is apt to increase. Thus, bail may also be conditioned on the continuing good behavior of the accused.’’).
In addressing Ayala’s argument that the revocation of his bail based on the commission of a crime conflicted with the fundamental purpose of bail under the state constitution, we also looked to the history of the right to bail in Connecticut. See State v. Ayala, supra, 222 Conn. 349–51. We noted that, prior to the adoption of the right to bail provision in the 1818 constitution,10 the right to be admitted to bail was protected by statute as early as 1672, and was incorporated into the 1750 revision of the statutory declaration of rights.11 Id., 350. The relevant provision of the 1750 declaration of rights provided that ‘‘no man’s person shall be restrained, or imprisoned, by any authority whatsoever, before the
In Ayala, although we did not have occasion to consider whether a trial court may set a monetary bond as a means of detaining a dangerous defendant solely in the interest of public safety, we strongly suggested that courts are not authorized to set financial conditions of release for that purpose. See id., 351. Rather, we explained that ‘‘[c]onditioning pretrial release on a defendant’s ability to meet a financial bond set by the court emphasizes the appearance aspect of bond,’’ whereas ‘‘[t]he use of nonfinancial conditions of release in addition to or in lieu of bond has broadened the focus of the purposes of bail to recognize . . . that bail is a method for ensuring a defendant’s good behavior while on release.’’ (Emphasis added.) Id. In other words, a trial court, pursuant to its authority over a defendant who has been released on bail, also may impose nonfinancial conditions to ensure the defendant’s good behavior while he is awaiting trial, and the court may enforce such conditions by revoking bail in the event that the defendant fails to comply with them. This does not mean, however, that a court may set a monetary
Moreover, the history of the right to bail in Connecticut belies any claim that our constitution allows courts to set financial conditions of release as a means of detaining a defendant for the protection of the public. That history reveals, rather, that the sole legitimate purpose for requiring a defendant to post a monetary bond before being admitted to bail is to ensure his appearance in court.13 We previously have recognized that the 1818 constitution, and the declaration of rights contained in article first of that constitution in particular, did not establish new or additional rights but, rather, incorporated into our founding document certain fundamental rights that already were protected by statute or the common law. See, e.g., Dowe v. Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946); see also W. Horton, The Connecticut State Constitution (2d Ed. 2012) pp. 3–4; C. Collier, ‘‘The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,’’ 15 Conn. L. Rev. 87, 96 (1982). Consistent with this view, when interpreting provisions of our constitution, we have observed that, ‘‘[t]o understand the intent of the instrument it is often necessary to have recourse to the form of government as it had existed before, and did exist at the time of, the adoption of the [1818] constitution.’’ Dowe v. Egan, supra, 119; see, e.g., State v. Stoddard, 206 Conn. 157, 164–65, 537 A.2d 446 (1988) (reviewing history of right to counsel in Connecticut in concluding that state constitution requires that suspect in custody be informed of efforts by counsel to render legal assistance). Thus, in determining whether the right to be released on ‘‘sufficient sureties’’ within the meaning of article first, § 14, of the 1818 constitution; see footnote 10 of this opinion; included the right to a monetary bond in an amount no more than necessary to ensure the defendant’s appearance, we must examine the statutes and case law leading up to the adoption of the 1818 constitution to ascertain the purpose of bail as it was understood at that time.
Significantly, statutory provisions enacted both before and immediately after the adoption of the 1818 constitution suggest that the purpose of bail was to
Although there is no case law at or around the time of the adoption of the 1818 constitution that squarely addresses the issue, several cases from that time support the view that the purpose of bail was to ensure the appearance of the defendant. For example, in Dickinson v. Kingsbury, 2 Day (Conn.) 1 (1805), in which this court, in a memorandum decision, held that a sheriff may take bail from a defendant who could not post bail at the time he was put to plea, the court reasoned that ‘‘[t]he personal liberty of the subject is to be favored, as far as practicable and safe, until conviction. Bail for his appearance at the court, in which his guilt or
In sum, contemporaneous statutes and case law indicate that, when the 1818 constitution was adopted, it was well understood that the sole purpose of bail was to ensure the appearance of the defendant. As one author put it in a comment containing an in-depth review of the history of bail in Connecticut that was published just after the enactment of the 1990 bail reform legislation, ‘‘[t]he only permissible object of bail since 1818 has been to assure a defendant’s appearance before the court at a later date. . . . [T]he meaning of bail established in the state constitution not only refers to the right of those accused of noncapital offenses to be released before trial, but also to the notion that the only valid state interest in conditioning the accused’s release is assuring his appearance before the court.’’ M. Mann, comment, ‘‘Overlooking the Constitution: The Problem With Connecticut’s Bail Reforms,’’ 24 Conn. L. Rev. 915, 941 (1992).
This understanding is consistent with the common-law origins of our bail system. Cf. State v. Joyner, 225 Conn. 450, 489, 625 A.2d 791 (1993) (Berdon, J., dissenting) (‘‘it is clear that in the colonial days and into the time of [Zephaniah] Swift’s writings, Connecticut jurists relied [on William] Blackstone as a source of the common law’’); State v. Geisler, 222 Conn. 672, 687–88, 610 A.2d 1225 (1992) (discussing English common law in course of deciding scope of protections under article first, § 7, of Connecticut constitution). Under English common law, a ‘‘bail’’ was a person who promised to ensure that the accused would appear before the court, and, upon such promise, the accused would be ‘‘delivered . . . into the custody of his bail, to be forthcoming
Although bail generally was denied in capital cases, there is no suggestion that this was due to concerns over the dangerousness of the accused. To the contrary, these authorities make clear that bail was not allowed in capital cases because a person charged with a capital offense would be more likely to flee than to appear and stand trial, and it was believed that ‘‘the public [was] entitled to demand nothing less than the highest security that can be given, [namely, in the form of] the body of the accused; in order to ensure that justice shall be done upon him, if guilty. Such persons therefore . . . have no other sureties but the four walls of the prison.’’ 4 W. Blackstone, supra, p. 298; see also id., pp. 296–97 (‘‘[I]n . . . offences of a capital nature, no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit, to save his own life?’’); L. Tribe, ‘‘An Ounce of Detention: Preventive Justice in the World of John Mitchell,’’ 56 Va. L. Rev. 371, 401 (1970) (explaining that ‘‘the underlying assumption seems to have been that certain classes of offenders, particularly those whose lives were at stake, ought to be detained simply to assure their presence at trial,’’ both because of ‘‘the greater temptation to flee’’ and ‘‘the fear that persons guilty of especially atrocious offenses might well be killed before they could appear for trial’’).
That the right to bail under article first, § 8, prohibits courts from setting a bond solely on the basis of a defendant’s perceived dangerousness is further evidenced by the consistency with which our legislature and courts have indicated that bail is to be conditioned
Although Connecticut’s bail statutes have been amended several times throughout the state’s history, language providing that bail must be set solely in order to ensure the defendant’s appearance remained in effect until the 1990 bail reform effort resulted in the current language. Indeed, for more than 150 years after the adoption of the 1818 constitution, no Connecticut statute authorized a court to consider public safety in determining whether to release a defendant on bail until the current language was added in 1990. The long history of legislative enactments requiring courts to set bail to ensure the appearance of the accused, and the absence of any language suggesting that courts may consider public safety concerns when setting bail, provides support for the conclusion that the state constitutional right to bail cannot be squared with the imposition of a monetary bond solely for the purpose of detaining a defendant on the ground that he poses a danger to others.
Of course, this court also has expressed the view that the purpose of requiring a monetary bond is to ensure the appearance of the accused. As I previously noted, in State v. Menillo, supra, 159 Conn. 265, this court stated that ‘‘[t]he fundamental purpose of bail is to ensure the presence of the accused throughout all proceedings, including final judgment.’’ Id., 269. In explaining that the excessive bail clause of article first,
In State v. Bates, supra, 140 Conn. 326, this court, in the course of addressing whether a person who is released on bail is considered in custody such that his failure to deny an accusation of guilt may not be admitted against him as an adoptive admission,15 indicated that ‘‘[t]he object of requiring bail is to compel the presence of [the] defendant in court, to the end that justice may be administered. . . . Its purpose is to secure [at trial] the presence of the person charged with [a] crime . . . and to force him to submit to the jurisdiction and the punishment imposed by the court.’’ (Citation omitted; internal quotation marks omitted.) Id., 330; see also State v. Hedge, 297 Conn. 621, 671–72, 1 A.3d 621 (2010) (in prosecution for failure to appear in violation of condition of bail, evidence that defendant was free on bond, that bond was forfeited, and that defendant was rearrested after failing to return to court was deemed sufficient to support inference that appearance in court was term of bond because ‘‘it is a matter of common knowledge that bonds and bail are posted as a condition of release for the purpose of ensuring the presence of an accused for all court proceedings pertaining to the charged offense’’); cf. State v. Sheriff, 301 Conn. 617, 626, 21 A.3d 808 (2011) (when accused released on bond fails to appear, surety may be discharged ‘‘only when appearance at trial is made impossible by an act of God, an act of the state, or pursuant to law’’ because, ‘‘[b]y posting bond for the accused, the surety willingly takes custody of the accused in place of the state and insures the state against the risk of flight by accepting responsibility for the consequences thereof’’ [emphasis added]). Throughout the history of Connecticut jurisprudence, there is not a single case in which a Connecticut court has indicated that a monetary bond may be set in a criminal case for the purpose of protecting public safety.
This long held view of the purpose of bail carries additional weight in light of the fact that the framers of the 1965 constitution adopted article first, § 8, without any indication that they intended to depart from this state’s prior understanding of the right to bail. Although we generally have focused on how constitutional provisions were understood in 1818 when interpreting those provisions that were readopted in similar or identical form in the 1965 constitution; see, e.g., State v. Lamme, 216 Conn. 172, 178–81, 579 A.2d 484 (1990); we occasionally have looked to the state of the law in 1965 to understand how protections contained in the
It also bears noting that the 1965 constitution was adopted amidst a nationwide push for bail reform, during which the constitutionality of preventive detention was the subject of active and widespread debate. See D. Freed & P. Wald, Bail in the United States: 1964, pp. vii–viii, 9–21 (discussing initiatives aimed at reforming bail system and reviewing studies concerning bail systems in various jurisdictions published between 1924 and 1963); C. Foote, ‘‘The Coming Constitutional Crisis In Bail: I,’’ 113 U. Pa. L. Rev. 959, 961–65 (1965) (discussing efforts to reform bail system). Shortly before the adoption of the 1965 constitution, the Department of Justice sponsored the National Conference on Bail Reform and Criminal Justice, a highly publicized effort aimed at addressing deficiencies in the bail system. See Proceedings and Interim Report of the National Conference on Bail and Criminal Justice (April, 1965) pp. xiii–xvii. One of the chief concerns addressed by the conference was the propriety of using a high monetary bond as a means of detaining defendants prior to trial, and the resulting report indicated that ‘‘[a] substantial body of opinion supports the view that setting high bail to detain dangerous offenders is unconstitutional.’’ Id., p. xxix. A short time later, the American Bar Association issued proposed standards for the administration of bail, which provide in relevant part that ‘‘[t]he sole purpose of money bail is to assure the defendant’s appearance. Money bail should not be set to punish or frighten the defendant, to placate public opinion or to prevent anticipated criminal conduct.’’ Project on Minimum Standards for Criminal Justice: Standards Relating to Pretrial Release (A.B.A., Approved Draft 1968) § 5.3 (b), p. 58; see also id., § 1.2 (c), p. 26 (‘‘money bail . . . should be required only in cases in which no other condition will reasonably ensure the defendant’s
Around the same time, federal courts expressed the view that setting bail for the purpose of preventing the accused from committing additional crimes was contrary to the purpose of bail under the eighth amendment to the United States constitution. In 1950, Justice Robert H. Jackson, acting as a Circuit Justice in connection with an application by the government to revoke the bail of several members of the Communist Party whose convictions for conspiring to overthrow the government had been upheld by the Second Circuit Court of Appeals, rejected the government’s contention that bail should be revoked because the defendants posed a danger to the public as ‘‘difficult to reconcile with traditional American law . . . .’’ Williamson v. United States, 184 F.2d 280, 282 (2d Cir. 1950). As Justice Jackson wrote, ‘‘[i]mprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted.’’ Id., 282–83. A little more than one year later, the United States Supreme Court concluded that bail set at $50,000 for twelve petitioners charged with conspiring to overthrow the government was excessive under the eighth amendment in light of the lack of evidence tending to show that the petitioners were a flight risk. See Stack v. Boyle, 342 U.S. 1, 3, 5–6, 72 S. Ct. 1, 96 L. Ed. 3 (1951). The court noted that ‘‘[t]he right to release before trial is conditioned [on] the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty’’; id., 4; and that ‘‘[b]ail set at a figure higher than an amount reasonably calculated to fulfill this purpose is ‘excessive’ under the [e]ighth [a]mendment.’’ Id., 5. Justice Jackson wrote separately and emphasized that, although he disagreed with the court’s disposition of the case on procedural grounds, the government’s argument that bail may be ‘‘fixed not as a reasonable assurance of [a defendant’s] presence at the trial, but also as an assurance [that he] would remain in jail’’ was ‘‘contrary to the whole policy and philosophy of bail.’’ Id., 10 (Jackson, J.). Against this backdrop, the fact that the framers of the 1965 constitution retained the right to bail without any suggestion that bail may be used as a means of detaining a defendant on grounds of dangerousness suggests that they intended to maintain the understanding of the purpose of bail that had been embedded in Connecticut law for close to two centuries.
In accord with this view, courts in several states have concluded that their respective constitutions do not allow the use of financial conditions of release as a means of ensuring that a defendant remains detained pending trial. For example, in People ex rel. Sammons v. Snow, 340 Ill. 464, 173 N.E. 8 (1930), the petitioner was charged with vagrancy but had a history of convictions for violent offenses, as well as pending indictments for other offenses. Id., 465–66, 468. The trial court set bail at $50,000, indicating that the purpose was to ensure that the petitioner could not obtain release. Id., 469. On appeal, the Illinois Supreme Court concluded that setting bail for purposes of preventive detention violated the right to bail under the Illinois constitution:18 ‘‘[The petitioner’s criminal] record may be taken into consideration in fixing the amount of bail which would be reasonably sufficient to [e]nsure his attendance to answer this comparatively minor charge. But bail to answer this charge cannot be fixed with reference to securing his appearance to answer [for] the other crimes with which he is charged, or at an unreasonable amount for this charge, merely to detain and imprison him. His record, his character and his criminal activities and tendencies may well be taken into account to increase the amount of bail which should be required of him over that which would be required of an ordinary offender but do not justify fixing the bail on this charge of vagrancy for the purpose of keeping him in jail. . . . The amount of $50,000 could have no other purpose than to make it impossible for him to give the bail and to detain him in custody, and is unreasonable.’’19 Id., 468–69.
The Supreme Court of Missouri came to the same conclusion in State ex rel. Corella v. Miles, 303 Mo. 648, 262 S.W. 364 (1924). At that time, the Missouri constitutional provisions guaranteeing the right to bail and prohibiting excessive bail were essentially identical to that of our 1818 constitution. Compare Mo. Const. (1875), art. II, §§ 2420 and 25,21 with Conn. Const. (1818), art. I, §§ 13 and 14. Relying on both provisions of the Missouri constitution, the Supreme Court of Missouri recognized that ‘‘[t]he purpose of giving bonds is to secure the appearance of the defendant at trial, and when the [c]onstitution forbids excessive bail it means that bail shall not be more than necessary to secure that attendance.’’ State ex rel. Corella v. Miles, supra, 651. ‘‘Since the only purpose of bond is to secure the appearance of the defendant at the trial, any bail fixed at more than is necessary to secure that appearance is excessive within the meaning of [the constitutional prohibition on excessive bail].’’ Id., 651–52. The court further observed that ‘‘[t]he bail bond must be fixed with a view to giving the prisoner his liberty, not for
Finally, it is highly questionable whether the legislature, in amending § 54-64a, intended to authorize courts to set a monetary bond as a means of detaining a defendant solely on the basis of public safety concerns. As I noted previously, when the United States Supreme Court concluded in Salerno that the preventive detention scheme established by the federal Bail Reform Act of 1984 (act) did not violate substantive due process, the court emphasized that, because of the procedures required before a defendant may be detained under the act, including the requirement that the government prove by clear and convincing evidence that no conditions of release could adequately protect the safety of the public; see
In Connecticut, the bail reform legislation that resulted in the current version of § 54-64a was enacted just three years after the United States Supreme Court issued its opinion in Salerno. Nevertheless, in authorizing courts to set conditions of release for public safety purposes, the General Assembly did not provide for any procedural protections comparable to those that the United States Supreme Court had relied on in upholding the constitutionality of the act. Our legislature did, however, provide for similar protections before a court may revoke the bail of a defendant who violates the conditions of his release, as authorized by this court in State v. Ayala, supra, 222 Conn. 346–50. See
For all of the foregoing reasons, I agree with the defendant that the imposition of a monetary bond for the sole purpose of ensuring the safety of others deprived him of his right to bail under article first, § 8, of the Connecticut constitution. Although the majority attempts to support its contrary conclusion with certain historical facts, the majority’s evidence falls well short of its mark.
For example, the majority notes that, in Ayala, we indicated that the right to bail provision contained in the preconstitutional declaration of rights suggests that ensuring a defendant’s good behavior while released during the pretrial period was a legitimate purpose of bail at that time, and that ‘‘[t]here is no evidence . . . that the framers of the 1818 constitution intended to abandon’’ that purpose. (Internal quotation marks omitted.) Part I of the majority opinion, quoting State v. Ayala, supra, 222 Conn. 351. The majority reasons that, because courts customarily had the authority, when setting bail, to ensure a defendant’s good behavior while the defendant was on pretrial release, the trial court in the present case properly ‘‘considered the need to ensure the safety of others, regardless of whether the defendant was a potential flight risk,’’ and then set a monetary bond ‘‘as a means to ensure the safety of other persons.’’ As I explained previously, however, in Ayala, we were not asked to decide whether article first, § 8, permits a court to set a monetary bond as a means of protecting public safety. In that case, rather, we were concerned with whether the constitution allows the court to set nonfinancial conditions of release to ensure the defendant’s good behavior and to revoke bail when a defendant fails to comply with those conditions. See State v. Ayala, supra, 333–36. Our conclusion that a court may revoke the bail of a defendant who endangers public safety by committing a crime in violation of the conditions of his release does not mean that a court may set a monetary bond for the sole purpose of preventing a defendant from obtaining release in the first instance, and we expressly indicated as much in Ayala by clarifying that we were not endorsing preventive detention as a constitutionally permissible practice. See id., 352–53.
The majority’s reliance on the language of the preconstitutional statutory right to bail is similarly misplaced. First, as I previously explained; see footnote 13 of this opinion; a comparison of the preconstitutional provi-
For similar reasons, statutes authorizing courts to require sureties of the peace or good behavior do not support the view that courts may impose a monetary bond as a means of detaining a defendant prior to trial solely on the basis of the court’s belief that the defendant would pose a danger to the public if released. These so-called ‘‘peace bond’’ statutes authorized justices of the peace—and now authorize judges of the Superior Court—upon finding that a person posed a specific and imminent threat, to order that person to refrain from engaging in the threatened conduct during a defined period of time and to provide financial security that may be forfeited upon his failure to refrain from such conduct in accordance with the order. See, e.g.,
Moreover, despite this court’s past description of peace bond statutes as ‘‘criminal in . . . nature’’; In re Bion, 59 Conn. 372, 383, 20 A. 662 (1890); that characterization is somewhat misleading. Peace bond statutes plainly do not define a criminal offense, as they authorize courts to order a person to provide sureties of the peace and good behavior regardless of whether the person is charged with a crime. Thus, whereas bail was used as a means of ensuring the appearance of a defendant charged with the commission of a criminal offense, peace bonds were a limited mechanism used only when there were grounds to believe that a person posed a specific threat of future harm in that they imposed a risk of financial loss if the person failed to keep the peace for the duration of the bond.25
Finally, even if the existence of the peace bond statute had some arguable relevance to the meaning or scope of the right to bail under article first, § 8, it hardly provides sufficient support for the conclusion that a trial court may set bail solely for the purpose of ensuring that a defendant remains preventively detained pending trial due to future dangerousness. Because it has long been understood that the purpose of bail is to ensure the court appearance of a person charged with a crime, whereas the purpose of a peace bond is merely to pro-
I emphasize that I am not unmindful of or unsympathetic to the concerns expressed by the trial court and the state regarding the need to protect the public from dangerous individuals. When a defendant who is not a flight risk is found to pose a particular threat to public safety, and when, in light of available resources, that threat can be addressed most readily by pretrial incarceration, it may seem reasonable for the court to effectively deny bail by setting a monetary bond that the defendant cannot meet and to order the defendant detained pending trial. Our law, however, provides other mechanisms—mechanisms that do not run afoul of the constitution—that courts may use to protect the safety of the public when confronted with a potentially violent defendant. For example, as this court concluded in Ayala, courts have the authority to impose nonfinancial conditions of release and to revoke bail if a defendant fails to comply with those conditions. See State v. Ayala, supra, 222 Conn. 347–52. Indeed, it appears that the trial court in the present case, following the appropriate procedures, could have revoked the defendant’s bail for his commission of a crime in violation of the conditions of his release. See General Statutes § 54-64f. Moreover, if the people of Connecticut believe that courts should have the authority to effectively deny bail solely to protect public safety, they may wish to follow the lessons of other states and to amend the constitution to reflect that view. See footnote 17 of this opinion. As our constitutional history demonstrates, however, the right to bail guaranteed by article first, § 8, simply does not allow a court to order a defendant detained prior to conviction, whether by refusal to set bail or by the imposition of an excessive monetary bond, based exclusively on the likelihood that the accused will commit further crimes if released. Because the trial court in the present case imposed a bond for the sole purpose of ensuring that the defendant, who is undisputedly not a flight risk, would be removed from Whiting and incarcerated pending trial because of his perceived dangerousness, he was denied his constitutionally protected right to bail. Accordingly, I respectfully dissent.
‘‘(b) If the court, after an evidentiary hearing at which hearsay or secondary evidence shall be admissible, finds by clear and convincing evidence that the defendant has violated reasonable conditions imposed on the defendant’s release it may impose different or additional conditions upon the defendant’s release. If the defendant is on release with respect to an offense for which a term of imprisonment of ten or more years may be imposed and the court, after an evidentiary hearing at which hearsay or secondary evidence shall be admissible, finds by clear and convincing evidence that the defendant has violated reasonable conditions of the defendant’s release and that the safety of any other person is endangered while the defendant is on release, it may revoke such release.
‘‘(c) If the defendant is on release with respect to an offense for which a term of imprisonment of ten or more years may be imposed and the court, after an evidentiary hearing at which hearsay or secondary evidence shall be admissible, finds by clear and convincing evidence that the safety of any other person is endangered while the defendant is on release and that there is probable cause to believe that the defendant has committed a federal, state or local crime while on release, there shall be a rebuttable presumption that the defendant’s release should be revoked.
‘‘(d) The revocation of a defendant’s release pursuant to this section shall cause any bond posted in the criminal proceeding to be automatically terminated and the surety to be released.’’
This understanding is consistent with the circumstances surrounding the adoption of the 1818 constitution. Although we acknowledged in Ayala that ‘‘[t]he constitution adopted in 1818 did not create a government but gave to that which had already been established the sanction of the people and, in very general language, formulated its framework’’; (internal quotation marks omitted) State v. Ayala, supra, 222 Conn. 351; we did so in suggesting that, in the absence of some express indication to the contrary, the framers of the 1818 constitution intended to incorporate the same understanding of the right to bail as that expressed in the 1750 statutory declaration of rights. As I explained, however, the meaning of the bail provisions contained in the 1818 constitution can be understood only upon review of the relevant statutory and case law leading up to and culminating in the adoption of the 1818 constitution.