The Constitutional Provision as it Presently Exists

With the exception of one class of cases, the constitution currently provides that all persons charged with crimes are entitled to be released pending trial upon posting bail by sufficient sureties. A "surety" is an individual or institution that agrees to guarantee that bail will be paid on behalf of a charged person if bail is forfeited. "Bail" is money or property pledged by a person charged with a criminal offense. When the charged person posts sufficient bail, he or she is released from custody pending a trial.

The constitutional provision has been implemented by court rules. Under those rules, a court may require bail to support a promise that the person charged will appear for trial. A court also may require bail to assure that the charged person complies with release conditions imposed by the court. The court may impose release conditions where there is a substantial danger that the charged person will commit a violent crime, or seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice unless the court imposes conditions on the accused person's release. If the charged person does not appear for trial, or violates release conditions secured by bail, bail may be forfeited. The trial court sets the amount of bail in a given case.

The class of cases in which bail currently may be denied under the constitution as it presently exists is capital offenses "when the proof is evident or the presumption is great." A "capital offense" is an offense for which the death penalty may be imposed if the person charged is convicted. Under court rules, a person charged with a capital offense shall not be released on bail unless the court finds that release conditions will reasonably assure that the accused will appear for trial, will not significantly interfere with the administration of justice, and will not pose a substantial danger to others. In capital cases, if a risk of flight, interference, or danger is believed to exist, the court may detain the charged person for trial, without bail.

The Effect of the Proposed Amendment if Approved

The proposed constitutional amendment would authorize courts to deny bail in an additional class of cases: offenses punishable by the possibility of life in prison where there is a showing by clear and convincing evidence of a propensity for violence that creates a substantial likelihood of danger to the community or any persons. The legislature would have authority to set limitations on the denial of bail in these cases.