BAIL CANNOT BE USED TO PUNISH
Furthermore, bail is not to be used to serve as a form of payment or to induce payment of fines or cost, Cohen v. U.S., 82 S. Ct. 526 (1962), or as punishment for the defendant’s activities. U.S. v. Gamble, 295 F. Supp. 1192 (S.D. Tex. 1969).
Nor can the court order payment of any fines imposed upon a defendant’s conviction out of funds on deposit, where there is no showing the defendant violated any of the terms or conditions of his release. U.S. v. Powell, 639 F. 2d 224 (5th Cir. 1981); U.S. v. Jones, 607 F. 2d 687 (5th Cir. 1979) (holding monies deposited by third parties); U.S. v. Rose, 791 F.2d 1477 (11th Cir. 1986) (noting requirement in appearance bond that funds shall be retained by clerk to pay any fine subsequently levied against defendant violates Bail Reform Act). [Nor can bail be excessive. 18 U.S.C. §3142(c)(2) prohibits a court from imposing a financial condition that results in the pretrial detention of the person].
The test for excessiveness of bail is not whether a defendant is financially able to satisfy the requirement, U.S. v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988); U.S. v. Beaman, 631 F.2d 85, 86 (6th Cir. 1980), but whether bail is set at an amount higher than reasonably calculated to assure the presence of the accused. Salerno at 752; Stack v. Boyle, 342 U.S. 1, 5 (1951).
Absolute certainty in assuring the defendant’s presence is neither required nor is it possible. Stack at 1; U.S. v. Alston, 420 F.2d 176 (D.C. Cir. 1969). The judicial officer setting bail need only consider those factors set out in §3146(b) to determine which conditions will give a “reasonable assurance” of the defendant’s presence and any consideration of factors other than those enumerated in §3146(b) are impermissible.
“Factors to be considered in imposing conditions of release are the nature and circumstances of he offense charged, the weight of the evidence against the accused, the accused’s family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings…Contrary to the Government’s assertion in the present case, the defendant’s inclination to commit other crimes is not permissible consideration.” U.S. v. Beaman, 631 F.2d 85 (6th Cir. 1980). See also U.S. v. Jackson, 823 F.2d 4 (2nd Cir. 1987).
Without deciding the issue of the complete denial of bail for “preventive detention” of dangerous offenders, the Fifth Circuit, en banc, previously held that the sole purpose of bail is to reasonably assure an accused’s presence at trial.
“Such requirement as is necessary to provide reasonable assurance of the accused’s presence at trial is constitutionally permissible. Any requirement in excess of that amount would be inherently punitive and run afoul of due process requirements.” Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978).
