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Type of Offense

Whether a defendant charged with a capital offense is entitled to a bail bond is a matter left to the discretion of the trial judge[i].  Some state constitutions guarantee to every accused person the right to be released on bail except for capital offenses where the proof is evident or the presumption great[ii].  Some states explicitly guarantee bail as a matter of right to defendants not charged with offenses punishable by death or life imprisonment[iii]. 

In some states, all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when proof is evident or the presumption great.  In other words, a criminal defendant has an absolute right before conviction, except in capital cases, to a reasonable bail[iv].   Therefore, all persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great[v].  Excessive bail shall not be exacted for bailable offenses.  All persons, unless sentenced, or unless committed for offenses punishable by death or life imprisonment when the evidence of guilt is great, shall be bailable by sufficient sureties.  When the evidence of guilt is great, persons committed for offenses punishable by death or life imprisonment shall not be bailable as a matter of right[vi]. 

Before release on bail pending trial can ever be denied to an accused charged with a capital offense or an offense punishable by life imprisonment, the state must come forward with a showing that the proof of guilt is evident or the presumption is great[vii].  In some state jurisdictions, the right of the individual to bail is a basic one.  The courts are under a mandate to allow bail in all criminal cases, including capital offenses[viii].  The burden is on the state to persuade the trial court that a case involves capital murder and that a defendant charged with the murder may, consistent with the constitution, be denied bail[ix].

[i] State v. Oliver, 302 N.C. 28 (N.C. 1981)

[ii] Martin v. State, 517 P.2d 1389 (Alaska 1974)

[iii] State v. Sauve, 159 Vt. 566 (Vt. 1993)

[iv] Larimore v. State, 339 Ark. 167 (Ark. 1999)

[v] In re Humphery, 1979 OK CR 97 (Okla. Crim. App. 1979)

[vi] State v. Lambert, 145 Vt. 315 (Vt. 1985)

[vii] State v. Perry, 605 So. 2d 94 (Fla. Dist. Ct. App. 3d Dist. 1992)

[viii] State v. Konigsberg, 33 N.J. 367 (N.J. 1960)

[ix] State v. Engel, 99 N.J. 453 (N.J. 1985)


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