'A tough balance': Morgan County judges explain how bonds are set

Jun. 22—With some residents puzzled by bonds ranging from $30,000 for murder to over $1 million for drug trafficking, Morgan County judges sat down with The Decatur Daily to explain the sometimes-challenging process of balancing a defendant's constitutional rights with the safety of the community.

"I think it's a misconception of the public that we take sides," said Circuit Judge Jennifer Howell. "It is our job not to take sides. While you're balancing the safety of the community, you're likewise balancing that person's right, constitutionally, to have a bond. And so, you know, that is a tough balance."

Alabama courts generally follow the bail schedule established by the Alabama Supreme Court and published in Rule 7.2 of the Alabama Rules of Criminal Procedure. The schedule sets a recommended range for bail amounts based on offense severity.

For example, the minimum bail recommended for murder is $15,000, with the maximum recommended at "no bail allowed."

The minimum bail recommended for drug trafficking is $5,000, with the maximum recommended at $1.5 million.

The minimum bail recommended for all misdemeanor offenses is $300, with the maximum for a Class A misdemeanor recommended at $6,000.

Most of the time, according to Howell, judges don't even set the bond. When a police officer books a defendant into jail, the officer then appears before a magistrate to swear out an affidavit — the officer's account of the offense — and secure an arrest warrant.

"As long as they're setting the minimum (bond), they don't have to go through the judge's office," Howell explained.

From there, a copy of the warrant and affidavit is sent to Circuit Clerk Chris Priest's office, the documents are put into the computer system, and the defendant is assigned a case number. Howell said sometimes defendants make bail before their paperwork even makes it to the courthouse.

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Officer input

"If a person is arrested and maybe the officer knows the history with this person, maybe they know they're already out on bond, maybe it's just a particularly bad set of facts — whatever reason — an officer can call us and say: 'Hey, judge, let me tell you why I think a minimum bond is not appropriate.' And then we can set it."

For example, Howell said she recently set bond at $100,000 for a man accused of drug trafficking because he was already out on bond for a drug offense.

Some weeks, Howell receives no requests to increase a defendant's bond; other weeks, she might receive six or more.

"I would definitely say it mostly happens if it's just a lot of drugs, or a really bad set of facts, or somewhere where the cops just keep arresting this person," she said.

If a defendant is arrested on the street, their case first goes to district court.

"Between the time of arrest and 30 days, they have the right to ask for a preliminary hearing," said Morgan County District Judge Shelly Waters. "They can also ask for bond reduction at that time. If they ask for a bond reduction, then I usually send Community Corrections over to do a pretrial release assessment that just sort of gives me some background.

"If he's 30 and this is his first offense, or if he's been offending since he was 18, you know, that shows a pattern and practice sometimes."

Waters said sometimes the district attorney will agree to an OR (own recognizance) bond for a defendant, which means the defendant doesn't have to pay any fee to be released from jail but will have to report to pretrial supervision through Community Corrections.

"As long as they do what they're supposed to do, they're good to go," said Waters. "Pass any alcohol or drug screens they ask for. Don't catch any new charges. Basically, just be a good person."

From there, defendants will stay out on bond until, or if, they're indicted by a grand jury. Typically, they'll just stay out on the same bond after the indictment, according to Waters.

Sometimes a defendant's case goes straight to a grand jury, and they aren't arrested until the indictment comes down. In such scenarios, the case bypasses district court and goes straight to circuit court.

Waters said she sometimes grants OR bonds, especially for misdemeanors and especially if the defendant has been sitting in jail for a week or two.

"People are entitled to a bond before their conviction," she said. "And the purpose of the bond is to ensure their presence at court and to protect the public, not to be punitive. That would be strictly against the Constitution."

There are a few different ways to make bail: be released on own recognizance, pay cash, put up a property bond, or pay a bondsman. Bail bond services typically require the defendant to pay 10-15% of the total bail fee and, as opposed to paying cash, the defendant won't receive that money back.

To put up a property bond, the property must be located in Alabama and all owners have to sign off on it, according to Waters.

"Sometimes I do think the bonds — if you have money — it makes it easier of course," she said. "Sometimes it's harder for somebody to scrape up $500 than it is for somebody (else) to scrape up $10,000. I do think a bond is necessary, just because they have something at stake to lose."

There are safeguards in place designed to prevent indigent defendants from sitting in jail too long.

"The law says that if there's a person who's been in jail for more than 90 days, then I need to see them," Howell said. "Every day my assistant is going through that jail list, seeing if anybody hit 90 days, or if they're close to 90 days. If I can see that they are not in a position to make a minimum scheduled bond, I'll go ahead and see them, get them a lawyer, set them a bond hearing, see if there are some other conditions other than paying money or whatever.

"Technically, we're not supposed to keep them in jail if the only reason they're in there is because they can't pay."

Prior to 2022, Alabama judges could only deny bond to defendants charged with capital murder. After Aniah's Law passed, judges can now deny bond for some other Class A felonies, such as first-degree rape or robbery, terrorism and aggravated child abuse.

Howell said when an officer arrests someone for an offense pursuant to Aniah's Law, they don't have discretion to set a bond: The defendant is automatically booked into jail with no bond.

"When that happens, we get notified immediately of that arrest," she said. "We have to see them, I think, within 72 hours."

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'Balanced and equal'

Judges can and do deviate from the bail schedule. Howell said she "absolutely" sets high bonds, if requested, for defendants accused of drug crimes involving fentanyl. She's also set them high for property crimes and domestic violence.

"I can't tell you how many people I know, just from this job, that have overdosed and died smoking something that they thought was something else," she said. "It just was laced with fentanyl."

Howell said fentanyl is virtually "in every drug" now and, because it presents such a danger to the community, fentanyl offenses necessitate high bonds.

Waters, who also presides over juvenile court, has seen the damaging effects of fentanyl. She told a story of two 17-year-old defendants that she had sent to rehab. They had been smoking marijuana for a year.

"They came home clean and went back to their friends," she said. "They were over at Delano Park, and they bought from the same person they'd been buying from. One of them got a hold of something with fentanyl. The problem is, you may buy it from me, but you have no idea who I'm buying it from. You may trust me with your life, but you have no idea who I bought it upstream from."

Waters said the drug has a wide-reaching impact beyond just those who use it. For example, there's a higher level of domestic violence and theft associated with its use, as addicts may go to extreme lengths to get a fix.

"I think because of the severity of it, the long-lasting consequences of it, the amount of people it effects and can reach — I think bonds for especially fentanyl and methamphetamine are higher than normal," she said.

Howell said she can't think of an instance where she declined to increase a defendant's bond if requested by law enforcement.

"If they're asking, there's a reason for it, and we're going to increase that bond," she said. "As much as anybody, we want to keep our community safe. If there's not a higher bond set, it's because nobody asked for one."

Even though bond isn't supposed to be punitive, Howell said being on bond can have real-world punitive effects.

"You've got your money tied up that you'll never get back with a bondsman, or maybe you've got your property tied up because you've filed a property bond," she said. "You know, you can't get a job sometimes while you're on bond; you might lose your job because you've been arrested."

Howell said she looks through the comments when local law enforcement agencies post arrests on Facebook.

"It's always fraught with comments like: 'He shouldn't even have a bond,'" she said. "It's hard to understand for the average person that doesn't deal with this every day, but if it were you or me and we were charged with something we didn't do, and we didn't have an opportunity to be released, then it does away with that right to be innocent until proven guilty.

"I think a general misunderstanding of the public is that when a person is arrested, we can just say, 'This looks pretty bad — you don't get a bond.' It's just not the case. The rules are there, and we have to follow them."

Waters said she understands that, if she were the victim, she would probably feel the same way as those Facebook users demanding no bond. However, she also understands that the defendant's family feels the opposite.

"I tell people all the time: There are great people sitting in church and there are people sitting there waiting to find a prey," she said. "There are some horrible people sitting in that jail, but there are some good people sitting in that jail who made a 30-second decision, and it's cost them their freedom, their family, their job and their money."

Waters said the "whole process of the law" is to make sure everything is balanced and equal.

"So, you can't punish the defendant who's not convicted of anything without due process," she said. "And I think sometimes that gets lost in the sight of — he or she hurt somebody. And I understand that as a mother and a citizen. But as a judge, you have to look at it unbiased and on equal footing."

— david.gambino@decaturdaily.com or 256-340-2438.