Bailable Offences Act Exposed

The Bailable Offences Act was adopted by ALEC's Criminal Justice and Homeland Security Task Force at the Spring Task Force Summit on May 16, 2008, approved by the full ALEC Board of Directors in June, 2008. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

CMD's Bill Summary

This "model" bill appears to serve two purposes: (1) require local law enforcement to determine the citizenship of all persons facing trial and prohibit them from being released on bail, and (2) establish a strong presumption that most other offenses be "bailable." Although this is consistent with the Eighth Amendment's guarantee against excessive bail, note that if passed this would benefit commercial bail bond companies.

ALEC Bill Text

Summary

Provides procedures for determining the citizenship of arrestees and creates additional circumstances under which the accused may be detained without bail.

Model Legislation

{Title, enacting clause, etc.}

Section 1. {Short Title.}

This Act may be cited the Bailable Offences Act.

Section 2. { Processing arrestees; citizenship determination; notice; random audits.}

A. Within twenty-four hours after a person is brought to a law enforcement agency for incarceration, the law enforcement agency shall inquire of the person and determine that person's country of citizenship. If the person is not a United States citizen, the law enforcement agency shall:

1. Notify the person's country of citizenship of the person's detention if the person does not waive notification or if the person's country of citizenship requires notification regardless of the person's waiver of notification.

2. Document the notification to the person's country of citizenship and any waiver of notification.

3. Transmit any information obtained pursuant to this section to the court and the prosecuting agency for the purpose of making a determination of bail.

B. The failure or inability of a law enforcement agency to provide the notice required by this section does not:

1. Affect the admissibility of any statements, the voluntariness of a guilty plea or the validity of a conviction.

2. Afford a defendant any rights in any proceeding related to deportation, exclusion or denial of naturalization.

Section 3. {Offenses not bailable; purpose; preconviction; exceptions.}

A. A person who is in custody shall not be admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is any crime if there is probable cause to believe that the person has entered or remained in the United States illegally. For the purposes of this paragraph:

1. The court shall consider all of the following in making a determination that a person has entered or remained in the United States illegally:

(a). Whether a hold has been placed on the arrested person by the United States immigration and customs enforcement.

(b). Any indication by a law enforcement agency that the person is in the United States illegally.

(c). Whether an admission by the arrested person has been obtained by the court or a law enforcement agency that the person has entered or remained in the United States illegally.

(d). Any information received from a law enforcement agency.

(e). Any evidence that the person has recently entered or remained in the United States illegally.

(f). Any other relevant information that is obtained by the court or that is presented to the court by a party or any other person.

B. The purposes of bail and any conditions of release that are set by a judicial officer or magistrate include:

1. Assuring the appearance of the accused.

2. Protecting against the intimidation of witnesses.

3. Protecting the safety of the victim, any other person or the community.

C. The initial determination of whether an offense is bailable pursuant to subsection a of this section shall be made by the magistrate or judicial officer at the time of the person's initial appearance.

D. Except as provided in subsection a of this section, a person who is in custody shall not be admitted to bail if the person is charged with a felony offense and the state certifies by motion and the court finds after a hearing on the matter that there is clear and convincing evidence that the person charged poses a substantial danger to another person or the community or engaged in conduct constituting a violent offense, that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community and that the proof is evident or the presumption great that the person committed the offense for which the person is charged. For the purposes of this subsection, "violent offense" means either of the following:

1. A dangerous crime against children.

2. Terrorism.

E. On oral motion of the state, the court shall order the hearing required by subsection d of this section at or within twenty four hours of the initial appearance unless the person who is subject to detention or the state moves for a continuance. A continuance that is granted on the motion of the person shall not exceed five calendar days unless there are extenuating circumstances. A continuance on the motion of the state shall be granted on good cause shown and shall not exceed twenty four hours. The prosecutor shall provide reasonable notice and an opportunity for victims and witnesses to be present and heard at any hearing. The person may be detained pending the hearing. The person is entitled to representation by counsel and is entitled to present information by proffer or otherwise, to testify and to present witnesses in the person's own behalf. Testimony of the person charged that is given during the hearing shall not be admissible on the issue of guilt in any subsequent judicial proceeding, except as it might relate to the compliance with or violation of any condition of release subsequently imposed or the imposition of appropriate sentence or in perjury proceedings, or for the purposes of impeachment. The case of the person shall be placed on an expedited calendar and, consistent with the sound administration of justice, the person's trial shall be given priority. The person may be admitted to bail in accordance with the Arizona rules of criminal procedure whenever a judicial officer finds that a subsequent event has eliminated the basis for detention.

F. The finding of an indictment or the filing of information does not add to the strength of the proof or the presumption to be drawn.

Section 4. {Constitutional provision; bailable offences.}

A. All persons charged with crime shall be bailable by sufficient sureties, except:

1. For capital offenses, sexual assault, sexual conduct with a minor under fifteen years of age or molestation of a child under fifteen years of age when the proof is evident or the presumption great.

2. For felony offenses committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge.

3. For felony offenses if the person charged poses a substantial danger to any other person or the community, if no conditions of release which may be imposed will reasonably assure the safety of the other person or the community and if the proof is evident or the presumption great as to the present charge.

4. For serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the united states illegally and if the proof is evident or the presumption great as to the present charge.

B. The purposes of bail and any conditions of release that are set by a judicial officer include:

1. Assuring the appearance of the accused.

2. Protecting against the intimidation of witnesses.

3. Protecting the safety of the victim, any other person or the community.

Adopted by the Criminal Justice & Homeland Security Task Force at the Spring Task Force Summit, May 16, 2008.

Approved by the full ALEC Board of Directors June 2008.