The ‘Balancing Act’ of Setting Bail: A Complex Calculation
James Robarge turns to his public defenders, Alex Parsons, left, and Caroline Smith, after hearing that he would be denied bail at his arraignment at the Sullivan County Superior Court in Newport, N.H., on Jan. 9, 2014.
Valley News - Sarah Priestap
Robert J. Dellinger, 53, of Sunapee, N.H., is arraigned by video at Lebanon District Court in Lebanon, N.H., on Dec. 11, 2013, on two counts of manslaughter in the deaths of a Wilder, Vt., couple who were killed in an automobile collision on Interstate 89 in Lebanon, N.H., on Dec. 7, 2013. (Valley News - Jennifer Hauck)
Lebanon — During Robert Dellinger’s Dec. 11 arraignment in District Court in Lebanon on two charges of manslaughter, the prosecutor and defense attorney debated his wealth, the chance that he would flee and the danger he posed to the community. The judge ultimately ordered Dellinger held on $250,000 cash-only bail.
The next evening, Dellinger, the former corporate executive charged with killing a Wilder couple in a Dec. 7 crash on Interstate 89 that prosecutors allege was a suicide attempt, was able to post that bail in full and return to his Sunapee home with his family.
Dellinger’s freedom was limited — he had to surrender his passport, agree to stay in New Hampshire and accept electronic monitoring — but he wasn’t in jail.
Two weeks later, when the state upgraded the charges against him to second-degree murder, Dellinger wasn’t given bail. Instead, he was sent to the Grafton County House of Corrections in North Haverhill. If he is indicted and the charges are handed up to Grafton Superior Court, his attorney can request a bail hearing at the higher court.
On Jan. 9, James Robarge, of Charlestown, appeared in Sullivan Superior Court and pleaded not guilty to charges of first- and second-degree murder in connection with the death of his estranged wife, Kelly Robarge, who went missing in June — on the same day she filed for divorce. Her body was found more than a week later in Unity. An autopsy report determined that she died from “homicidal violence by undetermined means.”
After a 21/2- hour hearing, Robarge was denied bail and was returned to the New Hampshire State Prison for Men in Concord.
These two cases illustrate the complexities of bail decisions and the factors judges have to consider when deciding whether to grant bail and what dollar amount should be set.
Bail decisions are influenced by factors including the charges and the defendant’s circumstances. The notion that most defendants have a right to remain free while awaiting trial is based on the principle that people are innocent until proven guilty. At the same time, judges must consider community safety.
“Bail is always a balancing act,” said Rick St. Hilaire, a former Grafton County attorney now in private practice. “There is a standard that you are presumed innocent. Bail is simply a matter to make sure that you don’t do anything stupid. (The ) presumption is that the person will be free during the process.”
In New Hampshire, bail is designed to ensure that the defendant will appear at future court dates and to protect the safety of the public and the defendant, St. Hilaire said. When setting bail, judges consider a defendant’s criminal history and the seriousness of the crime, along with whether the defendant has a job, a family or ties to the community. Some prosecutors argue that the more serious the crime, the greater the risk the defendant will try to flee.
Anyone charged with a felony in District Court in New Hampshire is entitled to a probable cause hearing, which many defendants waive. The case is then bound over to Superior Court, where a grand jury may issue an indictment, which is a tool for prosecutors to continue with criminal cases, not a finding of guilt.
In Vermont, the bail statute in the state constitution says judges should set bail based only on the risk that the defendant will flee or otherwise fail to appear.
But judges can consider risk to the community if a defendant is charged with a felony act of violence against another person, and if the court finds “clear and convincing evidence” that the defendant’s release poses a “substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence.”
Prosecutors can argue that the severity of the charges and the likelihood of conviction increase the risk of flight. A judge also can set a curfew, require defendants to report to the police department, or order that there be no contact with alleged victims.
In Vermont, bail can be denied for any person accused of an offense that is punishable by life imprisonment if the prosecution can show the judge that a reasonable jury could find beyond a reasonable doubt that the defendant is guilty.
In New Hampshire, bail can be denied in the case of first- or second-degree murder charges. The New Hampshire statute reads, “Any person arrested for an offense punishable by up to life in prison, where the proof is evident or the presumption great, shall not be allowed bail.”
New Hampshire district courts don’t have jurisdiction over a defendant’s bail in first- or second-degree murder cases, Assistant Attorney General Diana Fenton said. That means a person so charged in District Court will likely remain in jail unless and until there is an indictment and the case is handed up to Superior Court, where a defense attorney can request a formal bail hearing.
In Dellinger’s case, the District Court set a bail amount when he was charged with manslaughter. Once the charges against him were upgraded to second-degree murder, the District Court no longer had jurisdiction, his bail was revoked, and Dellinger was sent to the Grafton County House of Corrections, where he could be waiting a month before his case is handed up to the Superior Court, according to his attorney, Peter Decato.
Holding an accused person in jail before trial poses problems for defense attorneys, said Decato, who was speaking about cases in general and not specifically referring to his client, Dellinger.
For example, when Decato meets with clients at the county jail, he has to speak with them through a glass wall. The acoustics aren’t good, Decato said, and it’s difficult to have a private conversation.
“If you’re in jail, it’s difficult for you to stay on board,” Decato said.
Once Dellinger is eligible for a bail hearing, it is the state’s responsibility to show that there is “clear and convincing evidence” of his guilt in order for him to be held without bail.
In Robarge’s case, defense attorney Caroline Smith argued at her client’s Jan. 9 arraignment that the state had failed to meet that standard, saying the way Kelly Robarge was killed has not been established. But Sullivan Superior Court Judge Brian Tucker disagreed and ordered Robarge held without bail.
Wealth, or lack thereof, is often weighed by judges when making bail decisions.
Bail is meant to ensure that a defendant appears in court, so a judge could set a higher amount for a wealthy person, said University of New Hampshire law professor Albert Scherr, who was a New Hampshire public defender for 13 years.
“If part of the function of setting bail is to give the person incentive to show up to trial so that he or his family or friends don’t lose that money, it’s silly to set bail at $10,000 for a multimillionaire,” Scherr said. “Judges definitely consider (wealth) to figure out what amount will set the right kind of incentive.”
When St. Hilaire was a prosecutor dealing with a very wealthy defendant, he said, he would argue for a high enough bail to give the defendant an incentive to show up.
But Decato argued at his client’s Dec. 11 arraignment that wealth shouldn’t be a factor when considering his bail amount, and he echoed that sentiment in an interview last week.
“If you’re a wealthy person, you get penalized because you could possibly pay for a plane ticket,” Decato said.
At the other end of the spectrum, Grafton County House of Corrections Superintendent Glenn Libby said he has seen defendants held in the Grafton County House of Corrections for lack of bail as low as $200.
Scherr said he often dealt with defendants whose bail was set between $500 and $1,000 and they simply couldn’t meet it, which often had an enormous effect on them and on their families. Good judges think hard about bail because they don’t want to “wreak havoc” on a person’s life, Scherr said. At the same time, they try to set a bail amount that ensures the defendant’s appearance at trial.
“It’s a hard job to do because it’s hard to appreciate when you’re processing so many cases and so many bail hearings what a devastating effect (it can have) on a person’s life just being in jail for three or four days,” Scherr said.
“It can turn a person’s life upside down.”
St. Hilaire said it’s common for defense attorneys to argue that a person’s wealth shouldn’t be a factor when setting bail, but a person’s poverty should.
He recalled a case in which the defendant had very little money, but St. Hilaire wanted a bail amount that would give the defendant a sense of investment in the process.
St. Hilaire said he knew the defendant didn’t have any money, so he asked for bail to be set at $50, but the defendant still couldn’t pay that and would be sent to jail.
That wasn’t St. Hilaire’s intention, so he asked the judge to set bail at $10 instead, which the defendant was able to pay.
Robert Sand, former Windsor County state’s attorney, said calculating a bail amount is more of an art than a science.
“You pick a number,” Sand said. “You look at a case, you look at the facts, the strength, the criminal history. You think about whether the person will stick around or take off, and then you pick a number.”
Sand said he knew of only one judge who had a system for setting a bail amount. The judge would determine what it would cost to retrieve a defendant if he or she were to flee to another jurisdiction, and that cost would be the bail amount, Sand said.
“The reality is that the prosecution shoots high, defense shoots low and the judge goes somewhere in the middle,” Sand said.
Options and Oddities
Traditional bail is not the only option available to the courts.
One of the least restrictive forms of bail in Vermont is known as an unsecured appearance bond. This means a judge will set a bail amount, but the defendant does not have to pay it before being released. Instead, the defendant will be liable for the bail amount only if he doesn’t show up for future court dates.
Sand cited a study conducted by the Washington, D.C.-based Pretrial Justice Institute showing that unsecured appearance bonds are as effective as traditional bail at promoting compliance.
Sand said he’s not sure if Vermont has ever analyzed how different types of bail influence appearance rates or tried to determine what type of bail is the most effective at ensuring future court appearances.
But the study suggested that unsecured appearance bonds help level the playing field between rich and poor defendants.
“A lot of people, simply because they are indigent, end up being held and more affluent people get released, and it intrudes on the poor people’s presumption of innocence,” Sand said.
The study also indicated that unsecured appearance bonds can help reduce pressure on jails and prisons by cutting the number of pretrial inmates who have to be housed.
Libby pointed to that as a problem, and a peculiarity, in the criminal justice system.
At the Grafton County jail in North Haverhill, where Dellinger is being held, those awaiting trial are often kept in the same areas as those who have been convicted and sentenced.
“That’s one of the oddities of the criminal justice system as a whole,” Libby said. “You lose certain rights and privileges although you haven’t had your day in court yet. That’s the criminal justice system, not this specific jail.”
Sand noted another peculiarity in the bail system: A defendant who can’t post bail and who has not be found guilty will spend time in jail before trial, only to be released after pleading guilty and getting credit for time served.
“They sit in jail while they are presumed innocent, and they get out of jail by admitting their guilt,” Sand said.
“That may not be what the founders of the constitution had in mind.”
Sarah Brubeck can be reached at firstname.lastname@example.org or 603-727-3223.