This post was originally published in The Florida Defender (Fall 2019) as “Bail Hearings 101.”

Nearly 20 years ago, John Unruh published Bond Hearings 101 in The Florida Defender.[1]  He provided an excellent playbook to challenge excessive monetary bail:[2]  Attorneys should emphasize entitlement to pretrial release[3] and any presumption of nonmonetary conditions[4] and then highlight why the accused poses minimal flight and public-safety risks.  This remains a great strategy to challenge excessive bail.[5]  However, a new strategy has emerged to challenge unaffordable bail.[6]  This article provides a playbook for this new strategy that practitioners might add to their arsenal at a bail hearing.

Excessive Bail v. Unaffordable Bail

Monetary bail is excessive under the Eighth Amendment[7] (and not “reasonable” under the Florida Constitution[8]) when it is “higher than an amount reasonably calculated to fulfill” the state’s pretrial interests.[9]  Thus, excessiveness tests whether the bail is properly calibrated to the state’s interests in managing pretrial risks.  When a monetary bail amount exceeds what is sufficient to assure that the accused will return to trial[10] (e.g., in light of ties to the community, etc.), it is excessive and unreasonable. 

Affordability, on the other hand, measures the monetary bail against the accused’s current financial reach, not the state’s pretrial interests.  Although excessiveness and unaffordability often travel together, they weigh monetary bail against different counterbalances.  Thus, a monetary bail may be properly calibrated to a flight risk (and therefore not excessive) and still be beyond the accused’s financial resources (and therefore unaffordable).  A classic example is presented by an accused arrested for panhandling with a “California or Bust” sign.  The accused may not have more than $10 in his pocket, but his stated intention to flee may justify a greater monetary bail to assure his appearance at trial.  Conversely, a $200,000 monetary bail for a minor charge would be excessive, even though a wealthy defendant can easily afford it.[11]

Old Florida law suggests that unaffordable monetary bail is per se excessive.[12]  However, this equivalence has been called into doubt, if not outright rejected, in recent opinions.[13]  Attempts to resurrect the equivalence argument is unlikely the best course.  It invites no paradigmatic-shift in judicial thinking and cedes the presumption of correctness on appeal.  A judge may continue to focus on what monetary amount is required to assure the state’s pretrial interests (and not whether some nonmonetary bail form would suffice) and appellate courts will defer to the trial court’s risk assessment and monetary bail intended to manage that risk.[14]

Consequently, the unaffordability argument is better framed outside the Eighth Amendment and as a due process violation under the Fourteenth Amendment.  On that pitch, we can properly focus the court, require greater certainty, and gain more a favorable standard of review on appeal.[15]

However, its success will often turn on dislodging judges of their often decades-old belief that excessiveness is the only limit to monetary bail.  Yet, excessiveness is not the sole inquiry into the constitutionality of a bail determination.  Just as a practice that passes muster under one constitutional provision and may independently violate another one, so it is with bail determinations.[16]  Thus, the imposition of an unaffordable monetary bail may still violate due process, even if it is non-excessive.[17]

Unaffordable Bail is De Facto Pretrial Detention

Monetary bail may facilitate pretrial release or effect pretrial detention—depending on whether the accused can afford it.  When monetary bail only deprives the pocketbook, courts enjoy wide discretion in setting it.[18]  For an accused who can afford the monetary bail, she largely retains her freedom.  However, when an accused cannot afford the monetary bail, the calculus categorically changes. 

An unaffordable monetary bail presents an “illusory choice.”[19]  Because the accused cannot satisfy the monetary bail, jail is the only possible outcome.  For this reason, the imposition of an unaffordable monetary bail “is the functional equivalent of an order for pretrial detention.”[20]

Simply because an unaffordable monetarily bail results in pretrial detention does not always mean it is unconstitutional.  Insolvency is not a get-out-of-jail-free card.  An unaffordable monetary bail may be constitutionally imposed when pretrial detention is justified.[21]  However, the converse is importantly true—an unaffordable monetary bail is unconstitutional when pretrial detention is not justified.

The imposition of an unaffordable bail must comply with the substantive and procedural requirements for pretrial detention.[22]  If the state does not clearly establish a need to detain the accused, the pretrial detention (through the imposition of an unaffordable monetary bail or pretrial detention order) is unconstitutional.  That is the standard for de jure pretrial detention.

Florida provides two principal avenues for the state to detain an accused pretrial.  First, an accused charged with a life or capital offense may be detained pretrial when “proof of guilt is evident or the presumption great.”[23]  Second, when “no conditions of release” would be sufficient to assure the state’s legitimate bail interests, the accused may be detained pursuant to the Pretrial Detention Statute and Rule.[24]

However, each of these avenues impose on the state significant substantive and procedural hurdles.  They apply to limited people—those charged with life or capital offenses (Arthur) or dangerous crimes (Pretrial Detention Statute).  They apply in limited circumstances—when guilt is evident (Arthur) or when no conditions of pretrial release will assure community safety or trial appearance (Pretrial Detention Statute).  And the state must establish their application by a beyond-reasonable-doubt standard of proof.[25]  Given these substantive and procedural hurdles, no wonder the state often bypasses these avenues.

Instead of traveling one of these two avenues, the state routinely detains the accused through the sub rosa imposition of an unaffordable monetary bail.  It accomplishes the same pretrial detention without the perceived hassle.

However, as U.S. District Court Judge Robert Hinkle recently observed, effecting pretrial detention through the imposition of an unaffordable bail is “[a] rose by any other name.”[26]  The state should not be permitted to bypass the legal requirements for de jure pretrial detention simply by imposing an unaffordable money bail that accomplishes the same outcome.  Even when the Arthur provision and Pretrial Detention Statute are not invoked and do not explicitly apply, the Fourteenth Amendment to the U.S. Constitution imposes similar substantive and procedural strictures.  Two due process requirements stand out.

Less-Restrictive Alternatives

The U.S. Constitution mandates that pretrial detention is only justified as a last resort—when no less-restrictive alternatives are available to assure the state’s pretrial interests. 

The U.S. Supreme Court has repeatedly explained that freedom from physical restraint “has always been at the core of the liberty protected by the Due Process Clause.”[27]  Accordingly, the Court strictly scrutinizes pretrial detention.[28]  A deprivation of liberty must be necessary and “narrowly tailored to serve a compelling state interest.”[29]  And the state bears the burden to prove that the imposition of an unaffordable monetary bail that results in pretrial detention is narrowly tailored.[30]

The U.S. Supreme Court has repeatedly applied its narrow-tailoring requirement to affirm that the Fourteenth Amendment to the U.S. Constitution prohibits detaining a person because she is unable to pay unless the government has no less-restrictive, alternative methods to achieve its legitimate interests.[31]

Florida law solidifies this constitutional requisite of pretrial detention even when setting conditions of pretrial release.  Consistent with the presumption of nonmonetary release, Fla.R.Crim.P. 3.131(b)(1) specifies that before the trial court may impose a secured monetary bail (cash or surety bond) in subsection (b)(1)(E), it must consider and reject four less-restrictive alternatives.[32]  The rule was designed to guard against detention through an unaffordable bail without due process.  It was enacted[33] in response to a due process challenge of Florida’s practice of imposing unaffordable monetary bail “without meaningful consideration of other possible alternatives.”[34]  And like the court rule, Florida law requires that monetary conditions be imposed only when “necessary.”[35]

Clear & Convincing Evidence

The Due Process Clause[36] guards against the “mistaken or unjustified deprivation of life, liberty, or property.”[37]  It achieves this by dictating the “degree of confidence” a court should have to approve a deprivation.[38]  It sets the required standard of proof and allocates the burden to minimize the risk of an erroneous decision.[39]

Procedural safeguards must be proportional to the individual’s private interest at stake.[40]  The greater the private interest, the greater the certainty required before the government may deprive it.[41]  Ultimately, the standard of proof “indicate[s] the relative importance attached to the ultimate decision” and “the value society places on individual liberty”—that is, the private interest at stake.[42]

When the unaffordable monetary bail results in the accused’s detention, much more than money is at stake and the state court must determine the government’s need for pretrial detention based on a high standard of proof.  The “commitment for any purpose constitutes a significant deprivation of liberty.”[43]  And when a person’s stake is “both ‘particularly important’ and ‘more substantial than mere loss of money,’” greater certainty and procedural safeguards are required.[44]

To prevent mistakes, when the government seeks to deprive a person of liberty or impose pretrial detention, the U.S. Supreme Court has consistently held that the government must justify it with clear and convincing proof.[45]

Hearing Outline

Any due process argument against unaffordable monetary bail must first distinguish itself from an excessive-bail argument, which for decades courts have heard and often believed is the only bail argument.  We want the prosecutor and judge to understand that the claim is not focused on whether the monetary bail is properly calibrated to the state’s pretrial interest.  Instead, we argue that because the unaffordable monetary bail effects pretrial detention, due process requires that the state clearly establish its need to justify pretrial detention, just as it must under the Pretrial Detention Statute.[46]

Once this distinction is established, make an adequate factual predicate and record for appeal.  Florida law imposes corresponding evidentiary requirements for bail determinations.  It forecloses review of bail determinations where the record is inadequate.[47]  However, the accused has a right to present evidence and be heard, even at first appearance.[48]  Neither a bond schedule[49] nor a warrant[50] should influence the first appearance judge’s bail determination.

Establish what monetary bail the accuse can afford.  Florida law permits the accused to present testimony on the accused’s financial resources.[51]  Ask the accused about their income, debt, and assets.  Be specific.  Consult the financial affidavit and application for a public defender and ask about savings accounts, investments, cars, and homes and mortgages—even if the answers would be obvious.  Ask about whether friends or family have pledged assets to secure the accused’s pretrial release.[52]  Conclude with testimony of the greatest monetary bail the accused can currently afford.[53]

Then request the trial court make a finding of the greatest monetary bail the accused can afford.  “[A]n express finding by the court that the defendant has the ability to pay” is an essential procedural safeguard to reduce the risk of erroneous deprivation of liberty.[54]  This determination ensures the monetary bail will serve as a condition of release, not pretrial detention.[55]  Indeed, unless the state court inquires and determines the accused’s ability to satisfy a monetary bail, the accused may be deprived pretrial liberty “simply because, through no fault of [her] own, [s]he cannot pay” it.[56]

Once the affordability threshold is established, argue that the imposition of monetary bail above this threshold amounts to pretrial detention.  Argue that alternatives to de facto pretrial detention exist.  Note that alternatives to pretrial detention have adequately achieved the government’s interest in the District of Columbia, New Jersey,[57] the federal courts in the Northern District of Florida,[58] and other jurisdictions.  Practitioners should propose specific alternatives to the trial court.  Obviously, an affordable monetary bail that would facilitate pretrial release would often be a less-restrictive alternative to pretrial detention.[59]  Additionally, if the county provides pretrial supervision, propose this as an alternative. GPS monitoring is far from ideal and is very intrusive, but it may be better than county jail. 

Next, argue that the prosecutor must establish the absence of less-restrictive alternatives by clear and convincing evidence.  If the court is uncertain whether some other condition that would facilitate pretrial release will suffice, it should find that the state did not satisfy its burden of proof.  Ties and anything less than clear proof, go to the accused.

Finally, request the trial court make an explicit finding on the record as to whether the prosecutor established by clear and convincing evidence that no less-restrictive condition of pretrial release that would facilitate release will suffice.[60]

Conclusion

Pretrial release is not the principal purpose of a criminal defense.  The accused wants a fair trial and hopes for an acquittal.  Yet, pretrial detention has devasting effects on the accused both at trial and in the interim.  Pretrial detention hampers the “preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.”[61]  It adversely affects the accused’s trial outcomes.[62]  It often “imperil[s] the suspect’s job, interrupt[s] his source of income, and impair[s] his family relationships.”[63]

Bail hearings may be hard and we may not always win, but they are worth the time.  Unruh’s encouragement from 20 years ago remains current, “Please keep flighting []!”[64]


     [1] The Florida Defender (Spring of 1999).

     [2] Bail and bond are synonymous in Florida law.  § 903.011(1), Fla. Stat.  However, bail is used here to underscore that a monetary condition of pretrial release may be satisfied with more than just a surety bond issued by a professional bail bond agent, e.g., cash, § 903.16(1), Fla. Stat. 

     [3] Generally, an accused is entitled to “pretrial release on reasonable conditions,” Fla. Const., Art. 1, § 14, subject to three recognized exceptions.  See State v. Arthur, 390 So. 2d 717, 717 (Fla. 1980) (life or capital offenses); § 907.041(4), Fla. Stat. (“no conditions” of pretrial release will suffice); Parker v. State, 843 So. 2d 871 (Fla. 2003) (new-law arrest while on pretrial release, § 903.0471, Fla. Stat.).

     [4] See § 907.041(3)(a), Fla. Stat. (“It is the intent of the Legislature to create a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial release unless such person is charged with a dangerous crime … .”); Fla.R.Crim.P. 3.131(b)(1) (“Except as otherwise provided by this rule, there is a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial release.”); see also State v. Blair, 39 So. 3d 1190, 1192 (Fla. 2010) (“[I]t is clear that there is a presumption in favor of release.”).

     [5] Criminal defense lawyers might consider one additional, excessive-bail argument when representing defendants imposed a high monetary bail because of their perceived dangerousness:  Any amount of monetary bail aimed at crime prevention or deterrence is unconstitutionally excessive.  Although the state may have an interest in detaining pretrial a dangerous person, nominally permitting her release on the condition she satisfy a monetary bail, however, does nothing to protect the community.  So long as the accused does not flee, no financial consequence results from her committing a future crime while on pretrial release.  See § 903.28, Fla. Stat. (prescribing that a forfeited bond shall be remitted and judgment satisfied upon the apprehension of the defendant); § 903.26(2)(a), Fla. Stat. (providing a singular reason to forfeit a monetary bond: “If there is a failure of the defendant to appear as required”).  Consequently, “[m]oney bail … has no logical connection to protection of the public, as bail is not forfeited upon commission of additional crimes.”  In re Humphrey, 228 Cal. Rptr. 3d 513, 528 (Cal. Ct. App. 2018), cert. granted, 2018 WL 2375685 (Cal. May 23, 2018).

     [6] See, e.g., Knight v. Sheriff of Leon County, Fla., 369 F. Supp. 3d 1214 (N.D. Fla. 2019); ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018); Caliste v. Cantrell, 329 F. Supp. 3d 296 (E.D. La. 2018); Daves v. Dallas County, Texas, 341 F. Supp. 3d 688 (N.D. Tex. 2018); Schultz v. State, 330 F. Supp. 3d 1344 (N.D. Ala. 2018); Dixon v. City of St. Louis, No. 4:19cv112, 2019 WL 2437026 (E.D. Mo. June 11, 2019).

     [7]  Excessive Bail Clause of the Eighth Amendment of U.S. Constitution reads: “Excessive bail shall not be required … .”  U.S. Const., Amend. 8.

     [8] The Florida Constitution states pretrial release should be on “reasonable conditions.”  Fla. Const., Art. 1, § 14.

     [9] Stack v. Boyle, 342 U.S. 1, 5 (1951).

     [10] See note 6, supra.

     [11] See Byrd v. Mascara, 197 So. 3d 1211, 1213 (Fla. 4th DCA 2016) (“the fact that a defendant may have the resources to post the bond does not make the bond amount per se reasonable”).

     [12] In 1934, the Florida Supreme Court notably opined that “the amount of bail should not be fixed in so excessive an amount” to preclude pretrial release—that is, monetary bail ought to be affordable.  Mendenhall v. Sweat, 158 So. 280, 281-82 (Fla. 1934).  It took root.  See, e.g., Good v. Wille, 382 So. 2d 408, 410 (Fla. 4th DCA 1980) (“[d]epending upon the financial circumstances of the defendant, excessive bail is tantamount to no bail.”); Robinson v. State, 95 So. 3d 437, 438-39 (Fla. 5th DCA 2012) (“[B]ail should not be fixed in so excessive an amount as to preclude the probability of the accused’s being able to furnish it”); Norton-Nugin v. State, 179 So. 3d 557, 559 (Fla. 2d DCA 2015) (noting “[b]ecause her only asset is a car worth $2500, a bond set at $150,000 is like having no bond at all,” but then ruling the monetary bail was excessive, id. at 560).

     [13] See, e.g., Dyson v. Campbell, 921 So. 2d 692, 693 (Fla. 1st DCA 2006) (“We are well aware of the body of case law essentially holding that the setting of an excessive bond is the functional equivalent of setting no bond at all, and that the remedy of habeas corpus relief lies in such a circumstance.  It does not follow, however, that where a defendant testifies that he cannot meet a given bond amount, that bond is per se excessive or unreasonable.”) (citation omitted); Mehaffie v. Rutherford, 143 So. 3d 432, 434 (Fla. 1st DCA 2014) (“Simply because a defendant testifies that he cannot meet a given bond amount does not mean the bond is per se excessive or unreasonable.”).  Even the Fourth District appears in dicta to have receded from Good and now rejects this legal tautology.  Byrd, 197 So. 3d at 1213 (“a defendant’s inability to post a certain amount of bond does not render that amount per se unreasonable”).

     [14] See Mehaffie, 143 So. 3d at 434 (“The determination of bail is generally left to the discretion of the trial court, and is reviewed under an abuse of discretion standard.”).

     [15] Appellate court should review an unaffordable-bail claim for whether the accused was afforded due process (whether the prosecutor clearly established the absence of less-restrictive alternatives to pretrial detention through an unaffordable bail) and not whether the lower court abused its discretion in calibrating the monetary bail amount.

     [16] For example, the routine imposition of monetary bail for Catholics twice that of similarly situated defendants of other denominations would violate the Equal Protection Clause regardless of whether all of the monetary bails were non-excessive.

     [17] Indeed, the U.S. Supreme Court in United States v. Salerno analyzed the deprivation of pretrial liberty right under both due process, 481 U.S. 739 at 746-52 (1987), and the Eighth Amendment, id. at 752-55—without even hinting that only one constitutional theory was colorable.

     [18] See note 15, supra.

     [19] Williams v. Illinois, 399 U.S. 235, 242 (1970) (reasoning that an indigent defendant has only an “illusory choice” between jail and paying an unaffordable fine).

     [20] Brangan v. Commonwealth, 80 N.E.3d 949, 963 (Mass. 2017); see also United States v. Fidler, 419 F.3d 1026, 1028 (9th Cir. 2005) (characterizing an unaffordable bail as “de facto preventative detention”); United States v. McConnell, 842 F.2d 105, 109 (5th Cir. 1988) (characterizing an unaffordable bail “as a de facto automatic detention”); United States v. Leathers, 412 F.2d 169, 171 (D.C. Cir. 1969) (“the setting of bond unreachable because of its amount would be tantamount to setting no conditions at all”); Knight, 369 F. Supp. 3d at 1222 (“Ms. Knight’s unaffordable bail was equivalent to detention.”); ODonnell v. Harris County, Texas, 251 F. Supp. 3d 1052, 1156 (S.D. Tex. 2017) (holding that secured money bail set in an amount that an arrestee cannot afford is constitutionally equivalent to an order of detention); State v. Brown, 338 P.3d 1276, 1292 (N.M. 2014) (“Intentionally setting bail so high as to be unattainable is simply a less honest method of unlawfully denying bail altogether.”)

     [21] Knight, 369 F. Supp. 3d at 1219 (“When detention serves a compelling interest, a state may accomplish the result through an explicit detention order, or the state may accomplish the same result by setting unaffordable bail.”)

     [22] See United States v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991) (“[O]nce a court finds itself in this situation—insisting on terms in a ‘release’ order that will cause the defendant to be detained pending trial—it must satisfy the procedural requirements for a valid detention order”); United States v. Westbrook, 780 F.2d 1185, 1188 (5th Cir. 1986) (“If … the officer concludes that the [unaffordable] bond is necessary to assure appearance, then it is apparent that no available condition of release will assure the accused’s appearance. In that instance, the judicial authority could proceed with a detention hearing and, subject to the requisite findings, issue a detention order.”); Brangan, 80 N.E.3d at 963 (ruling the decision to impose an unaffordable monetary bail “must be evaluated in light of the same due process requirements applicable to such a deprivation of liberty.”).

     [23] Fla. Const., Art. 1, § 14.; see also State v. Arthur, 390 So. 2d at 717. 

     [24] § 907.041(4), Fla. Stat.; Fla.R.Crim.P. 3.132.

     [25] In Arthur hearings, the state bears the burden of “establish[ing] guilt beyond a reasonable doubt.”  Stallings v. Ryan, 979 So. 2d 1167, 1169 (Fla. 3d DCA 2008).  In Pretrial Detention Statute hearings, the state bears the “the burden of showing beyond a reasonable doubt the need for pretrial detention.”  Fla.R.Crim.P. 3.132(c)(1). 

     [26] Knight, 369 F. Supp. 3d at 1219.

     [27] Foucha v. Louisiana, 504 U.S. 71, 80 (1992); Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 

     [28] Salerno, 481 U.S. at 749-751 (analyzing the “fundamental” liberty interest, the government’s “compelling” interest, and “narrow[] focus” of the application—the hallmarks of strict scrutiny); see also Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 779 (9th Cir. 2014) (observing that “Salerno applied heightened scrutiny”); Buffin v. City & County of San Francisco, No. 15cv4959, 2018 WL 424362, at *5-6 (N.D. Cal. Jan. 16, 2018) (reviewing Salerno and Lopez-Valenzuela to conclude strict scrutiny applied in an unaffordable bail case).

     [29] Reno v. Flores, 507 U.S. 292, 302 (1993) (citing Salerno, 481 U.S. at 746).

     [30] Foucha, 504 U.S. at 80, 81-82; Salerno, 481 U.S. at 751; see also Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 665-66 (2004) (“the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute”—that is “whether the challenged regulation is the least restrictive means among available, effective alternatives”).

     [31] Bearden v. Georgia, 461 U.S. 660, 672-73 (1983); Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970); see also Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc) (observing “[t]he incarceration of those who cannot [pay the bail amount], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.”); Knight, 369 F. Supp. 3d at 1218 (“A defendant may be detained pending trial only when necessary to serve a compelling interest.”).

     [32] The preamble to Fla.R.Crim.P. 3.131(b)(1) reads: “The judicial officer shall impose the first of the following conditions of release that will reasonably [assure the state’s pretrial interests]; or, if no single condition gives that assurance, shall impose any combination of the following conditions.”

     [33] The prioritizing of conditions of pretrial release that would facilitate release over secured monetary bail was included in the criminal Florida rules in 1977 upon the urging of the plaintiffs’ attorney and the U.S. Eleventh Circuit’s suggestion.  Pugh v. Rainwater, 557 F.2d 1189, 1194, 1194 n.11 (5th Cir. 1977), opinion vacated on reh'g en banc, 572 F.2d 1053 (5th Cir. 1978); The Florida Bar, 343 So. 2d 1247, 1250 (Fla. 1977) (defining bail in Fla.R.Crim.P. 3.130(b)(4)(i)(2) (1977) to include for the first time an “unsecured appearance bond”).

     [34] Rainwater, 572 F.2d at 1057.

     [35] § 907.041(3)(a), Fla. Stat.

     [36] It reads: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”  U.S. Const., Amend. 14.

     [37] Carey v. Piphus, 435 U.S. 247, 259 (1978). 

     [38] Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). 

     [39] Heller v. Doe by Doe, 509 U.S. 312, 348 n. 1 (1993) (standard); Mackey v. Montrym, 443 U.S. 1, 13 (1979) (risk). 

     [40] Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (constitutional test considers the “risk of an erroneous deprivation of such [private] interest”). 

     [41] See, e.g., Heller, 509 U.S. at 324 (justifying a lower standard of proof for the commitment of the intellectually disabled than the mentally ill because the intellectually disabled’s treatment is “much less invasive” and therefore they have less interest in avoiding erroneous commitment). 

     [42] Addington, 441 U.S. at 423, 425 (quotation omitted).

     [43] Hamdi v. Rumsfeld, 542 U.S. 507, 530 (2004). 

     [44] Santosky v. Kramer, 455 U.S. 745, 756 (1982) (quoting Addington, 441 U.S. at 424).

     [45] Salerno, 481 U.S. at 750-52 (upholding the pretrial detention of criminal defendants posing a danger to the community pursuant to a procedure “specifically designed to further the accuracy of that determination.”); see also Caliste, 329 F. Supp. 3d at 313  (holding that the clear and convincing standard is required when imposing pretrial detention because of the “vital importance of the individual’s interest in pretrial liberty recognized by the Supreme Court”).

     [46] See § 907.041(4), Fla. Stat.

     [47] State v. S.M., 131 So. 3d 780, 784 (Fla. 2013).

     [48] Greenwood v. State, 51 So. 3d 1278, 1281 (Fla. 2d DCA 2011) (“[I]t is error for the trial court to refuse to give defendants at least a very brief opportunity to be heard at the first appearance hearing if they insist on it, even if defendants might be better served by a later hearing.”).

     [49] Riverocruz v. Bradshaw, 964 So. 2d 245, 245 (Fla. 4th DCA 2007) (reversing trial court’s blind adherence to bond schedule); Hollander v. Crowder, 952 So. 2d 1289, 1290 (Fla. 4th DCA 2007) (blind adherence to bond schedule would render the mandate to conduct individualized assessment and management of risk “meaningless”); Rawls v. State, 540 So. 2d 946, 947 (Fla. 5th DCA 1989) (“Strict adherence to the bond schedule in the instant case constituted an abuse of discretion”).

     [50] State v. Norris, 768 So. 2d 1070 (Fla. 2000) (holding that the judge issuing arrest warrant could not preclude first appearance judge from modifying endorsed bail conditions).

     [51] See § 903.046(2)(c), Fla. Stat. (“court shall consider … financial resources”); Fla.R.Crim.P. 3.131(b)(3); Sylvester v. State, 175 So. 3d 813 (Fla. 5th DCA 2014) (holding the defendant was entitled to reconsideration of the motion to reduce bond due to trial court’s failure to consider defendant’s financial resources in setting the bail amount); Camara v. State, 916 So. 2d 946, 947 (Fla. 3d DCA 2005) (“evidence of financial resources of the petitioner must be heard and taken into consideration before bond is set.”).

     [52] See Henley v. Jenne, 796 So. 2d 1273 (Fla. 4th DCA 2001); see also Watkins v. Lamberti, 82 So. 3d 825, 827 (Fla. 4th DCA 2011) (discounting any consideration of family and friends’ assets and distinguishing the “dicta” in Henley because “there is no evidence in the record that any of his friends were pledging their assets to secure his appearance at trial.”)

     [53] The test for affordability turns on whether the accused can afford the full bail amount, not the bail bondsman’s 10% premium.  Two reasons counsel this interpretation.  First, § 903.011(3), Fla. Stat. requires a uniform bail amount for all bail forms.  See also Harrell v. McMillan, 614 So. 2d 1185, 1186 (Fla. 1st DCA 1993) (“orders on pretrial release may not set different amounts for cash and surety bonds”).  Inasmuch as the law prohibits differing bail amounts depending on how the bail is satisfied, the law prohibits differential evaluation of affordability by the bail form.  Second, affordability turns on present ability to pay, not future income or assets.  Of course, financial products may either extend credit to satisfy a debt or cover a contingent debt for a premium (surety bond).  However, inasmuch as the affordability of these financial products says little about whether the underlying bail amount is currently affordable, they should not be considered.  Ultimately, an accused should not be expected to purchase a surety bond and pay associated premiums simply because she is poor.  Payday loan and other predatory loans are similarly discouraged.

     [54] Turner v. Rogers, 564 U.S. 431, 448 (2011).

     [55] See Hernandez v. Sessions, 872 F.3d 976, 992-93 (9th Cir. 2017) (“[T]he government has no way of knowing if the detention that results from failing to post a bond in the required amount is reasonably related to achieving that interest,” without inquiring into ability to pay).

     [56] Bearden, 461 U.S. at 672-73.

     [57] For example, effective Jan. 1, 2017, New Jersey enacted sweeping criminal justice reform that minimized the use of monetary bail.  N.J. Stat. § 2A:162-15–25.  It commands courts to utilize, in lieu of monetary bail, an evidence-based risk assessment and non-financial release conditions based on the accused’s risks. 

     [58] The U.S. District Courts in the Northern District of Florida do not condition pretrial release on satisfaction of a monetary bail.  If the accused poses substantial flight or public-safety risks, she is detained.  Otherwise, she is released on nonmonetary conditions.

     [59] Indeed, judges often arbitrarily settle on a specific amount of monetary bail.  See Timothy R. Schnacke, Dep’t of Just., Nat’l. Inst. Of Corrs., Fundamentals of Bail 13 (Sept. 2014), https://goo.gl/jr7sMg (“[T]he financial condition of a bail bond is typically arbitrary; even when judges are capable of expressing reasons for a particular amount, there is often no rational explanation for why a second amount, either lower or higher, might not arguably serve the same purpose.”).

     [60] This determination is a necessary component of procedural due process.  See Sec. & Exch. Comm'n v. Torchia, 922 F.3d 1307, 1319 (11th Cir. 2019) (holding due process requires not only notice and an opportunity to be heard, but also “an adjudication of [] claims and defenses.”); see also Wackenhut Corp. v. Canty, 359 So. 2d 430, 434 (Fla. 1978) (ruling a trial court needs to provide adequate factual bases for the decision “to facilitate intelligent appellate review.”); Sylvester, 175 So. 3d at 813 (granting petition, ordering further consideration, and requiring “appropriate findings in the order,” after concluding it was unclear whether the trial court considered the proper factors); Jones v. Marceno, 256 So. 3d 857 (Fla. 2d DCA 2018) (granting habeas petition and remanding to trial court make a new bail determination when trial court had previously “made no factual findings and offered no explanation for its rulings”); see also Cameron v. McCampbell, 704 So. 2d 721, 723 (Fla. 4th DCA 1998) (“It would be helpful, for purposes of appellate review, if the trial court would make findings, including consideration of the applicable statutory criteria, when it resets the amount of bail.”), cited with approval by Winer v. Spears, 771 So. 2d 621, 622 (Fla. 3d DCA 2000); see also Patterson v. Neuman, 707 So. 2d 946, 947 (Fla. 4th DCA 1998) (same).

     [61] Rainwater, 572 F.2d at 1056-57.

     [62] ODonnell, 251 F. Supp. 3d at 1105 (discussing extensive evidence that detained misdemeanor defendants are more likely to plead guilty and “abandon valid defenses” than those released pretrial “to obtain faster release than if they contested their charges”).

     [63] Gerstein v. Pugh, 420 U.S. 103, 114 (1975).

     [64] John Unruh, Bond Hearings 101, The Florida Defender (Spring of 1999).

 

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