New clients often start out by asking me how they can get out of jail and get back to their families and their jobs. Deciding whether to go to trial and how to prepare a defense may be more important, but it is less immediate, so everyone wants to start by working on bail. It’s easy to get a hearing in front of a judge on bail, but it is harder to persuade a judge to set a bail amount that an average person can afford, especially when faced with Measure 11 or other serious charges or an immigration hold.
The right to bail is protected by Article I, sections 14 and 16, of the Oregon Constitution and by Oregon statutory law in ORS chapter 135. It is also protected by the Eighth Amendment to the United States Constitution, but whether the federal guarantee applies to proceedings in state or county courts has not really been resolved.
The scope of the right to bail isn’t very clear, because it is hard to raise on appeal. If there is a dispute about whether the police are allowed to look in your car trunk during a traffic stop (they aren’t) then the trial court makes a ruling, and either party can appeal that ruling to the Court of Appeals. By contrast, appealing a bail ruling is hard because by the time the case comes before the Court of Appeals, the bail ruling probably doesn’t matter any more. A court can’t decide an abstract or hypothetical question, so an appellate court can’t decide whether a trial court erred in denying bail unless the ruling still makes a difference on appeal. Usually it won’t, so there are few appellate decisions on bail.
It is a common practice for a court both to require bail, which is money or property deposited with the court and returned if the defendant shows up for every court appearance, and also a release agreement, which is a promise to follow probation-like conditions while on release. I have argued elsewhere that the Oregon Constitution does not permit a court to impose both bail and a release agreement
The right to bail means a right to bail similar to that recognized at the time the Oregon constitutional guarantees were adopted. At that time, bail just required the deposit of property as a guarantee of future court attendance. It did not include agreeing to follow other rules, or using the bail money to guarantee other debts like child support. The possibility that bail will be forfeited if the defendant calls the victim, or will be seized to pay other debts, makes it a lot harder for the defendant to persuade family or friends to provide part of the bail money, and I think it is a violation of the constitutional right to bail.
That argument is certainly worth making in the right case and with the right judge. But it is hard to persuade a trial-court judge that the standard Oregon bail practice is unlawful. A better strategy is to persuade the court that the defendant is responsible, has close ties to the community, and won’t get in any further trouble. To do that, it is helpful to have witnesses who can testify about the defendant’s life and work history and family and friends. The defendant starts out with a black mark for being accused of a crime, but it is certainly possible to persuade the judge that it was, at worst, a one-time aberration, and the defendant will show up in court as ordered and stay out of any more trouble. Having the defendant’s family sitting in court to show moral support and to emphasize the defendant’s family ties is helpful. Judges don’t want to fill up the jail unnecessarily, and don’t want to punish people before they are convicted. In rare instances, it’s possible to ask the Oregon Supreme Court to review a bail determination, but in most cases the trial court is the only realistic hope, so it’s important to go into the bail hearing prepared with witnesses and evidence to show the defendant in the best possible light.
