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2011 South-Atlantic bail/pretrial release legislation

August 16th, 2011

Law

Florida HB 347 / SB 514 Requires defendant who was arrested for leaving scene of crash involving death to be held in custody until brought before judge for admittance to bail in certain circumstances.

Florida HB 575 / SB 844 Authorizes court, in determining whether to require or set amount of bail, to consider likelihood that person will be imprisoned for violation of probation or community control.

Maryland HB 682 / SB 809 Prohibits a court that exercises criminal jurisdiction from refunding a forfeiture of bail or collateral at a specified time unless a private surety pays a forfeiture of bail or collateral within a specified time period after a defendant’s failure to appear. Requires a court to refund a forfeiture of bail bond or collateral that was not paid within a specified time period after a defendant’s failure to appear under specified circumstances.

North Carolina HB 649 Amends laws pertaining to grounds for revocation of licensure regulating bail bondsman and allowing a bail agent on behalf of a surety company to make written motions setting aside bail forfeiture and relief from final judgment of bail forfeiture under laws pertaining the criminal procedure.

Virginia HB 1713 Adds to the list of crimes charged for which there is a presumption against admission to bail, subject to rebuttal, obstruction of justice where a person threatens bodily harm or force to knowingly attempt to intimidate or impede a witness.

Virginia HB 2060 Provides that a magistrate who is to set the terms of bail of a person arrested and brought before him pursuant to a capias shall, unless circumstances exist that require him to impose more restrictive terms of bail, set bail in accordance with the order of the court that issued the capias if such an order is affixed to or made a part of the capias by the court.

Virginia HB 2106  / SB 925 Allows GPS for persons on secured bond.

Virginia HB 2437 Provides that a licensed bail bondsman shall not charge less than 10 percent or more than 15 percent of the amount of the bond for a bail bond premium and shall not loan money with interest for the purpose of helping another obtain a bail bond. Defines bail bond premium as the amount of money paid to a licensed bail bondsman for the execution of a bail bond.

Introduced with committee and/or floor approval

Florida HB 1379 Provides that a defendant is eligible to receive government-funded pretrial release only by order of the court after the court finds in writing, upon consideration of the defendant’s affidavit of indigence: That the defendant is indigent or partially indigent as set forth in the Florida Rules of Criminal Procedure and that the defendant has not previously failed to appear at any required court proceeding. Prohibits defendants from participating in a pretrial release program if the defendant’s income is over 300 percent of the federal poverty guidelines prescribed for the size of the household of the defendant by the U.S. Department of Health and Human Services, unless the defendant is receiving certain financial assistance. Requires that defendants who seek to post a surety bond pursuant to a bond schedule established by administrative order as an alternative to government-funded pretrial release be permitted to do so without any interference or restriction by a pretrial release program. Requires pretrial release programs certify annually, in writing, to the chief circuit court judge, that the program has complied with the reporting requirements in current statutes.

Florida HB 265 Requires court considering whether to release defendant on bail to determine whether defendant is subject to registration as sexual offender or predator and, if so, to hold defendant without bail until first appearance on case.

Florida HB 7089 Requires a court, when determining whether to release a defendant on bail or other conditions, to consider the defendant’s legal residency status in the United States.

North Carolina SB 756 Revises laws related to pretrial release programs. Eliminates unsecured appearance bond as a pretrial release condition. Provides no state funds may be appropriated for the support of a pretrial release program.

South Carolina HB 3895 / SB 795 Provides that an appearance bond is valid for a certain time period in circuit and magistrates or municipal courts under certain circumstances. Provides a procedure to relieve the surety of liability when the time period has run.

Virginia HB 2332  Provides if judicial officer concurs in the determination of police officer that defendant is present in U.S. illegally and finds probable cause to believe that the person will not appear for trial or hearing, the judicial officer may refuse to admit the person to bail.

Introduced with committee rejection

Florida SB 372 Requires each pretrial release program established by ordinance of a county commission, by administrative order of a court, or by any other means in order to assist in the release of a defendant from pretrial custody to conform to the eligibility criteria set forth by the act. Preempts any conflicting local ordinances, orders, or practices. Requires that the defendant satisfy certain eligibility criteria in order to be assigned to a pretrial release program, etc

Florida SB 494 Requires a court considering whether to release a defendant on bail to determine whether the defendant is subject to registration as a sexual offender or predator and, if so, to hold the defendant without bail until the first appearance on the case.

Maryland HB 272 Requires, notwithstanding any other law or Maryland Rule, that a court or a District Court commissioner ask a defendant to provide information on the defendant’s legal status in the United States before the court or a District Court commissioner authorizes the defendant’s pretrial release on bail or personal recognizance. Authorizes the court or a District Court commissioner to consider the information on the defendant’s legal status in deciding whether to authorize the pretrial release of the defendant.

Maryland HB 1264 Prohibits a District Court commissioner from authorizing the pretrial release of a defendant charged with causing abuse or neglect of a vulnerable adult in the first or second degree.

Maryland HB 768 / SB 940 Allows a defendant in a circuit court or the District Court or a private surety acting for the defendant who posts a bail bond in an amount that is 10% of the penalty amount to deposit with the clerk of court half of the amount immediately and the other half within 6 months later.

Introduced with other or no activity

Georgia HB 32 Revises the requirements for releasing a person on his or her own recognizance.

Georgia HB 252 Add violations for which cash bonds can be accepted in lieu of bail and proceedings for failure to appear.

Georgia HB 288 Require as a condition of bail for certain offenses that DNA collection be performed on the person seeking bond.

Maryland HB 898 / SB 686 Provides that if a bail bondsman arranges to accept payment of a bail bond premium in installments, the installment agreement shall include information about the total premium amount owed, down payment made, and other terms of the installment contract. Requires that information about the bail bond premium installment payment agreement be included in an affidavit of surety. Requires bail bondsmen, if arranging bail bond premium installment agreements, to follow specified collection procedures.

North Carolina SB 740 Allows a bail agent on behalf of a surety company to make written motions setting aside bail forfeiture and relief from final judgment of bail forfeiture under laws pertaining the criminal procedure.

South Carolina SB 45 & SB 266 Provides Circuit Court to hear  motions regarding reconsideration of bond for general sessions offenses. Provides defense motions to reconsider may be heard by the circuit court only upon the defendant’s prima facie showing of a material change in circumstances.

South Carolina SB 267 Provides a person committing or attempting to commit a general sessions offense while on bail bond must be imprisoned five years in addition to the punishment for the principal offense.

West Virginia HB 2068 Provides certain specific statutory conditions of bond in cases involving crimes between family or household members in lieu of allowing the issuing authority to set conditions of bail.

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Delaware: Legislature approves bill providing for consistent statutory language for judicial law clerks

June 21st, 2011

While there are often bills introduced to limit or expand the number of law clerks to judges, it is not often that I come across a bill that relates to their definition. Delaware, however, has two such bills this year.

HB 56 & HB 64 would insert into each statute section related to each level of court (Supreme, Chancery, Superior, Family, and Common Pleas) in the state the following uniform language:

Law clerks hold major, non-tenured advisory positions for the [judges/justices of the specific court].  The [name of court] may appoint and remove at pleasure such judicial law clerks as shall be necessary for the proper operation of the Court.

Currently, the statute sections for each court level either say nothing as to law clerks or use different language. For example, the Court of Chancery (10 Del. Code. § 329) has:

(a) The Court of Chancery may appoint and remove at pleasure such law clerks as shall be necessary for the proper operation of the Court, not to exceed 2 law clerks in New Castle County, one law clerk in Kent County and one law clerk in Sussex County.

(b) Each law clerk shall receive such compensation as shall from time to time be determined by the Chancellor. Special arrangements may be made as to part-time law clerks where the Court finds it expedient to do so.

But the Superior Court (10 Del. Code. § 523) has:

(a) [Repealed.]

(b) Each law clerk shall receive such compensation as shall from time to time be determined by the President Judge. Special arrangements may be made as to part-time law clerks where the Court finds it expedient to do so.

HB 56 was stricken shortly after introduction. HB 64 met with unanimous approval at all stages of its progress and is current awaiting action by the Governor.

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Alabama Senate joins other states in favoring federal law to intercept payments for court-owed fees/fines

May 13th, 2011

I noted in February 2010 (Issue 4:8) that several state legislatures were encouraging Congress to adopt a bill to allow for court debt to be collected through the U.S. Treasury’s Offset Program (TOP) which is used to collect delinquent debts owed to federal agencies and states (including past-due child support). Last week, Alabama’s SJR 122 was introduced directly onto the floor and adopted by voice vote. While the text is not yet available on the legislature’s website, it is available thanks to the legislative tracking services provided by our friends at LexisNexis.

WHEREAS, the courts of this state order the payment of restitution to victims of crime as well as the payment of court fines and fees at the conclusion of criminal matters; and

WHEREAS, victims of crime are due these monies to help compensate them for the wrong which has been visited upon them by the perpetrator, and the state is due these monies to offset the costs of ensuring “[t]hat all courts shall be open” as required by the Constitution of Alabama of 1901; and

WHEREAS, unpaid restitutions and court fines and fees have been and continue to be a problem in this state, with currently over $ 551 million being due the State of Alabama in unpaid court-imposed fines and fees; and

WHEREAS, the Legislature by Act 2004-505, now codified as Section 40-18-100, et seq., Code of Alabama 1975, enabled the Alabama Department of Revenue to collect unpaid court fines and fees by use of a setoff of the state income tax refund of a debtor; and

WHEREAS, since the enactment of Act 2004-505, over $ 13.3 million have been collected in unpaid court costs and fines by the Alabama Department of Revenue; and

WHEREAS, the Crime Victim Restitution and Court Fee Intercept Act will enable the United States Treasury to offset restitution and other state judicial debts against an individual’s federal income tax refund in a similar manner as the Alabama Department of Revenue is permitted to do so pursuant to Act 2004-505; and

WHEREAS, the enactment of this legislation will enable victims of crime to receive the restitution due them as well as for states to collect unpaid court fines and fees; now therefore,

BE IT RESOLVED BY THE LEGISLATURE OF ALABAMA, BOTH HOUSES THEREOF CONCURRING, That we hereby urge the United States Congress to approve H.R. 1416 and S. 755, the Crime Victim Restitution and Court Fee Intercept Act, with all due haste.

BE IT FURTHER RESOLVED, That a copy of this resolution will be provided to each member of Alabama’s Congressional Delegation.

Alabama is now the seventh state to consider supporting such a federal intercept program.

2011

Filed in May 2010 and still technically pending, New Jersey’s SCR 100 uses much the same language as Delaware’s HJR 14 of 2010 (see below).

2010

March: Mississippi’s SCR 671 noted that “the legislation has received support from a broad-based coalition of public interest groups such as the National Association for Court Management…” Due to its late filing late in the session, however, it failed to be adopted.

Delaware’s HJR 9 and HJR 14 claimed “the increased collection of court-ordered restitution, fines, fees and costs will benefit victims of crime, the State of Delaware, Delaware’s Counties and other municipalities, along with programs such as the Victim’s Compensation Fund and court security, all of which are particularly important during these extraordinarily challenging economic times…” HJR 14 which was eventually adopted unanimously by both chambers of the Delaware legislature and signed by the governor.

2009

February: New Mexico’s legislature considered HJM 73 in favor of the intercept legislation, finding “more than nine thousand individuals have outstanding fines and fees ordered by a court in New Mexico, which fines and fees total just under two million five hundred twenty-one thousand dollars ($2,521,000).” Moreover, New Mexico’s own state-level version, a tax refund intercept program, had already collected nearly $150,000 in unpaid fees and fines (as of February 2009). The resolution estimated that participation in the federal program would “conservatively” result in $300,000 in collections for the judicial branch of the state. HJM 73 was later approved unanimously by the legislature.

Arkansas HCR 1010 was introduced, supporting the bill, claiming the collection system would “contribute positively to the public trust and confidence in the judicial system. Like its New Mexico counterpart, HCR 1010 was approved unanimously by the state legislature.

April: Oregon’s SJM 12 was also unanimously approved by that state’s legislature, using much the same language as Arkansas HCR 1010 and also meets with unanimous legislative approval.

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States continue to press for federal legislation to intercept income tax refunds to pay for court fees and fines

March 26th, 2010

Readers of Gavel to Gavel the e-publication (and if you aren’t, why not subscribe now?) may recall several weeks ago I discussed resolutions in 3 states that asked Congress to intercept tax refunds and similar items in order to collect court fees and fines. Two other states have now introduced similar legislation in last week.

Mississippi’s SCR 671 “urge[s] the United States Congress to support legislation to add conforming language to federal statutes that will enable the states to intercept federal tax refunds for payment of obligations under legally enforceable court orders.”

Delaware’s HJR 9 notes “Delaware has an intercept system for state tax refunds and state lottery recipients that has collected more than one million dollars ($1,000,000) in outstanding court-ordered restitution, fines, fees and costs, over the past ten years” and encourages Congress pass the federal intercept legislation currently pending.

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Emergencies and the courts

February 23rd, 2010

How courts operate, or don’t, post-disaster has been of considerable concern since 9/11 and all the more so after Hurricanes Katrina and Rita. Several states have tackled the matter. For example, Delaware’s SB 25 of 2009 provides for the operation of the courts in the event of an emergency and grants the Chief Justice the authority to declare a judicial emergency when there are emergency circumstances affecting one or more court facilities with such order limited to an initial duration of 30 days but renewable for 30 day periods. It allows the Chief Justice to order the conducting of courts outside their normal county, extend statutes of limitations, and similar measures.

In 2010, several states are looking at similar measures.

Georgia’s HB 185 authorizes the Chief Justice to extend the duration of a judicial emergency order when a public health emergency exists until the emergency ends (currently there is a maximum of 60 days).

Virginia’s HB 883 sets out a procedure for the Supreme Court to follow in entering an order declaring a judicial emergency when there is a disaster as defined in the Commonwealth’s Emergency Services and Disaster Law. The bill permits the judicial emergency order to suspend, toll, extend, or otherwise grant relief from time limits or filing requirements in any court affected by the order and allows designation of a neighboring jurisdiction as proper venue for civil and criminal proceedings.

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