TBA Law Blog

Posted by: Jenny Jones on Oct 28, 2015

by Dwight Aarons
Associate Professor, The University of Tennessee College of Law and TBA Criminal Justice Section Executive Council Member

On April 7, 2015, in State v. Burgins,464 S.W.3d 298 (Tenn. 2015), the Tennessee Supreme Court upheld the bail revocation statute, TCA 40-11-141(b) against a constitutional challenge.  After doing so, the Court outlined a procedure to follow for revoking bail.  The opinion has a bit of something for everyone in it.   But before getting to that let’s deal with what the state high court said.  

The case arose out of the prosecution of Latickia Tashay Burgins, who, in March 2013, was charged with a misdemeanor drug offense.  Three months later she was released on bond.   In April 2014, while awaiting trial on those charges, Burgins was charged with multiple crimes arising out of an attempted carjacking. 

In light of these new charges, the State  moved to revoke Burgins’ bail pursuant to the revocation statute.  The motion was granted without a hearing.  In granting the revocation, the trial court stated that the right to bail is not denied when it is revoked after the defendant has committed a violent crime while released on bail.  After the Court of Criminal Appeals declared the bail revocation statute unconstitutional, the Supreme Court granted review.

The Court’s Reasoning

The Court noted that the issue was one of first impression and that the case provided an opportunity to resolve a legal issue and to promote uniformity throughout the state.  The Court reviewed the historical use of bail.  Bail has its origins in medieval England, where accused suspects could pledge an amount to secure release before trial.  During this time, most crimes were punishable by fines that were paid to the victim, and the amount of bail was identical to the potential penalty.  The idea was carried over to these shores, as bail is provided for in both the federal and state constitutions.

The United States Constitution prevents excessive bail.   In contrast, Article I, section 5 of the Tennessee Constitution is more encompassing, as it says, “all prisoners shall be bailable by sufficient sureties, unless for capital offenses, when proof is evident, or the presumption great.”  Thus, in state court, every non-capital defendant has a state constitutional right to bail, and defendants charged with capital crimes are presumptively entitled to an opportunity to establish that they are bailable.  In fact, the language of Article I, section is the most common articulation of the state constitutional right to bail; it is identical to the wording of in 20 other state constitutions.

Relying on the language of the revocation statute, the Court noted that it didn’t prevent pretrial bail.  Rather, in the words of the statute, it makes bail revocable if “the defendant violates a condition of release, is charged with an offense committed during the defendant’s release, or engages in conduct which results in the obstruction of the orderly and expeditious progress of the trial or other proceedings.”  The Court found that a defendant’s constitutional right to bail, as with most rights, was subject to forfeiture.  The Court distinguished its most pertinent precedent, State v. Wallace, 245 S.W.2d 192 (1952), and concluded that the statute was constitutional. 

After determining that a defendant has a constitutionally protected interest in bail, the Court outlined some procedural protections to which the defendant was entitled.  Pretrial bail revocation proceedings can be initiated by the judge sua sponte or upon the State’s motion.  The defendant is entitled to written notice of the grounds for revocation, including the date, place and time of the hearing, disclosure of the evidence against her, a meaningful opportunity to be heard and present evidence, the right to confront and cross-examine witnesses, and the right to make arguments in defense.   The trial judge has greater flexibility in admitting evidence than at trial, and the State has to prove a breach of the bail revocation statute by a preponderance of the evidence.  Upon such proof, bail may be either revoked or additional conditions imposed.

Something for Everyone?

Defendants should benefit from Burgins.  No longer can unilateral allegations or an ex parte presentation by a prosecutor result in the revocation or modification of bail.  Prosecutors also get something from the case.  Burgins is a roadmap for seeking revocation of bail or the modification of bail conditions.  For trial judges, the case provides guidance on what must be alleged, proven, and the essential components of a revocation hearing.  Adhering to that process should make rulings made in revocation hearings nearly immune from appellate court reversal.  The General Assembly should read the case and incorporate its holding into the bail statutes.

Not everyone will likely be satisfied with what Burgins uncovers.  History shows that when instituted, the use of bonds for bail was symmetrical because criminal punishment was most often a fine.  Today, a conviction carries with it the likelihood of incarceration, but we still employ sureties to ensure that the defendant shows for trial.  As such, it is not surprising that some now fear that granting a defendant pretrial bail will not ensure his presence at trial.  Bail is often denied outright or set high to act as a type of preventive detention.  This approach, however, conflicts with the Founders’ presumption of pretrial release on bail.  In short, constitutional originalists should be troubled by our current evasion of the right to bail.

Reformers interested in making the criminal law and its processes more effective are also likely to be unsatisfied.  One does not have to inquire deeply into modern bail practices to believe that it’s an area in need of reform. The Court in Burgins did not use the case to question those practices.  This appears to be an area where the collection of data on the bail system and analytics would redound to the public good.  Maybe the General Assembly will take up that task the next time it amends this frequently amended area of law.