A law adding some thirty offenses, including eighteen misdemeanors, to the cash bail-only list is clearly unconstitutional and grossly unfair, according to court documents.
The new laws also limit bail fund groups to assisting with bail for no more than three individuals per year. “This is a part of our heritage, us being able to pay for the freedom of our folks that can’t afford it,” said Bri Simpson, executive director of Barred Business, the lead plaintiff in the case against the state.
In late April, Gov. Brian Kemp signed Senate Bill 63 and nine other new crime and public safety measures passed by the most recent General Assembly. The bill also limits charitable bail funds or even individuals from bailing multiple people out of jail, reserving that ability only to those who meet legal requirements to be bail bond companies.
Now, the American Civil Liberties Union has filed a lawsuit on behalf of the Barred Business Foundation Co., an organization that describes itself as a community-based nonprofit for people who had previous involvement with the criminal justice system.
“It is unconstitutional on many fronts,” insisted Cory Isaacson, legal director for the ACLU of Georgia. “We think we have a very strong argument to present to the judge that this unconstitutionally restricts peoples’ speech and action. And that the state, if they want to impose these restrictions, they have to have a very good reason to do so, and they do not have that here,” Isaacson said.
Isaacson added that how the law defines “groups” and “jurisdictions” is vague and thus raises questions about enforcement.
Initial Pretrial Release System
The Eighth Amendment guarantees reasonable bail in criminal cases. “Reasonable” is a very subjective word that, for the most part, states can freely define.
The most restrictive form of pretrial release is cash bail. The defendant must post the entire bond amount in cash and also agree to various conditions. These conditions, which vary in different cases, include:
- Regularly report to a supervision officer,
- Remain in the county at all times,
- Avoid further trouble with the law, and
- Work and/or attend school full time.
These agreements usually also include offense-specific conditions, such as a keep-away order in a domestic battery case.
Incidentally, protective orders usually include keep-away orders. This reason alone makes a protective order much more than a piece of paper. When officers respond to disturbance or stalking calls, they must listen to an endless he said/she said back-and-forth. Protective orders are cut and dried. The defendant was in a prohibited place and the defendant is subject to arrest. No ifs, ands, or buts.
Cash bail is restrictive because, even in a misdemeanor, the bail amount is usually at least $750. Most people don’t have enough cash to cover a $400 emergency expense. So, $750 might as well be $750 billion.
Pretrial release is on the other end of the scale. The least restrictive jail release method is usually available if the defendant has no criminal record and is charged with a nonviolent offense.
A Marietta criminal defense lawyer advocates for defendants at this stage. A ten-year-old criminal conviction from another state or a borderline nonviolent charge, like stalking, could torpedo pretrial release eligibility. A Marietta criminal defense lawyer helps ensure that doesn’t happen.
Middle-of-the-road pretrial release, a bail bond, is usually available regardless of the charge or the defendant’s criminal history. A bail bond resembles an insurance policy. If Mike’s house burns down and he has a fire insurance policy, the insurance company bears the financial risk. If Mike skips town and he has a bail bond, the bonding company bears the financial risk.
The premium for a bail bond is usually around 15 percent of the cash bail amount. A Marietta criminal defense lawyer expedites this process or, in some cases, handles it from start to finish.
Bail Reduction/Modification Hearings
Bail in a serious case, if it’s initially available at all, could be more than $50,000. 15 percent of this cost is more than most people can afford. That’s if the defendant can find a bonding company willing to assume such a large financial risk, which is a pretty big “if.”
Additionally, if a defendant is charged with multiple offenses, officials usually don’t set bail. Selling drugs near a school is a good example. In Georgia, these defendants can be charged with two felonies (selling drugs and selling drugs in a drug-free zone). Many lawyers and advocates question the constitutionality of this scheme. More on that below.
In these cases, a Marietta criminal defense lawyer can request a bond reduction hearing. At this hearing, the judge considers a wide range of factors, such as the defendant’s:
- Criminal Record/Severity of Offense: These two factors are usually the biggest ones. Officials usually set high bail amounts in these cases. They assume that these people are more likely to run. But the opposite is often true. The system doesn’t scare people who’ve been through it before. People charged with serious crimes are eager to clear their names.
- Connection to the Community: People with local jobs and families are less likely to run than people without these connections. Other factors include the defendant’s ability to travel and access to money. On a related note, the defendant’s ability to pay is a factor in these determinations.
- Threat to the Community: This threat could be a specific or general threat. Some defendants threaten alleged victims or possible witnesses. Other defendants, like DUI defendants, threaten the community in general.
These disputes, like most other criminal law disputes, normally settle out of court. For example, prosecutors might agree to reduce bail if the defendant agrees to electronic monitoring or another restrictive condition.
Unfair and Unconstitutional Laws
All criminal laws are unfair to an extent. But they cannot go overboard. The punishment must fit the crime. Furthermore, the law cannot penalize a status. For example, it’s against the law to use or possess drugs, but it’s not against the law to be an addict.
Criminal laws are unconstitutionally vague if they do not specify a penalty, or a reasonable person cannot look at the law and figure out what it means. Once again, “reasonable” is a very subjective word, as outlined above.
Constitutionality arguments rarely hold up in court. However, they’re often effective bargaining chips during pretrial settlement negotiations. Rather than deal with an extended hearing, many prosecutors would rather offer generous plea deals.
Jail release is an important part of a criminal defense. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
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