State v. Anderson, SC19399

• Decision Date: 03 November 2015
• Docket Number: SC19399
• Court: Connecticut Supreme Court
• Parties: STATE v. ANDERSON

STATE v. ANDERSON

SC19399

Supreme Court of Connecticut

November 3, 2015

DISSENT

PALMER, J., with whom ROGERS, C. J., and McDONALD, J., join, dissenting. As this court repeatedly has stated, the purpose of bail in this state is, and always has been, to ensure the appearance in court of a criminal defendant awaiting trial. Despite this unchallenged principle, and notwithstanding the right to bail expressly guaranteed under article first, § 8, of the Connecticut constitution,¹ the majority today holds that a defendant who concededly is not a flight risk may be held in lieu of bail solely on account of his perceived dangerousness. Because I do not agree that the state constitutional right to bail permits this form of preventive detention, I must dissent.

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.

Finally, the trial court's sole consideration in setting a bond in this case was its belief that the defendant posed a safety risk to other patients and hospital staff if he remained at Whiting, and the bond that the court set was intended to ensure that the defendant would be transferred from Whiting to the custody of the Commissioner of Correction. As the trial court explained, in reaching its determination, it considered the defendant's "history of violence" based on the allegations against him in the pending cases, concluding "that the defendant posed a risk to the physical safety of other people, [including] . . . not only the staff . . . working [at Whiting], but [also] . . . the other patients," and that a $100,000 monetary bond was "necessary to ensure the safety of these people." Quite clearly, then, the court imposed a monetary bond in an amount that the defendant could not pay, with the result that the defendant would be transferred from Whiting to the custody of the Commissioner of Correction, solely because the court believed that the defendant represented a threat to the staff and patients at Whiting. Furthermore, although the trial court did not order the defendant detained without bail on account of his dangerousness—an order that would have been unlawful—the undeniable purpose and effect of the court's imposition of a high monetary bond was to ensure that the defendant would be detained because of the threat he posed to the safety of others. As a result, the defendant has been preventively detained.⁴

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 . . . ." Public L. No. 98-473, 98 Stat. 1976, 1978-80 (1984), codified at 18 U.S.C. § 3142 (e) and (f) (Supp. II 1984).The respondents claimed, inter alia, that this provision violated the eighth amendment because the excessive bail clause guaranteed their right to have bail set in an amount no greater than that necessary to ensure their appearance at trial. See United States v. Salerno, supra, 752-53. The court rejected this claim, concluding that the "[e]ighth [a]mendment [does not] categorically [prohibit] the government from pursuing other admittedly compelling interests through regulation of pretrial release." Id., 753. According to the court, "[t]he only arguable substantive limitation of the [b]ail [c]lause is that the [g]overnment's proposed conditions of release or detention not be 'excessive' in light of the perceived evil. . . . Thus, when the [g]overnment has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more . . . [but] when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the [e]ighth [a]mendment does not require release on bail."⁷ (Citation omitted.) Id., 754-55.

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 detainedfor an offense [that was] . . . punishable by death" and, therefore, was "entitled to bail and to release on entering into a recognizance, with sufficient surety, for his appearance before the court having cognizance of the three offenses with which he [was] charged").

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 General Statutes § 54-64a. Prior to 1990, § 54-64a provided that, upon presentment of the defendant, the court was to release the defendant "upon the . . . [least restrictive] conditions of release found sufficient to provide reasonable assurance of his appearance in court . . . ." General Statutes (Rev. to 1989) § 54-64a. In 1990, however, the General Assembly passed bail reform legislation that, for the first time in our history, authorized courts to consider public safety concerns when setting conditions of release for certain crimes and to revoke bail when a defendant violates the conditions set by the court. See Public Acts 1990, No....