The Inconsistency of Bonds

A recent arrest reported in the local paper provides a good example of how bond settings for defendants can work. The facts of the case are relatively straight forward: a local dentist was arrested and charged with possession with intent to distribute a schedule II controlled substance in proximity to a school. His co-defendant was arrested and charged with trafficking in cocaine 10 grams or more, two counts of purchasing a controlled substance within proximity of a school, and possession of a schedule II and IV substance. When arraigned, the co-defendant was released on his own recognizance while the dentist was given a $25,000 bond.

The setting of bond in South Carolina is controlled by several layers of law. The starting point is Article I, § 15 of the South Carolina Constitution, which  states that every defendant is entitled to a reasonable bond except where the defendant is “charged with capital offenses or offenses punishable by life imprisonment, or with violent offenses defined by the General Assembly, giving due weight to the evidence and to the nature and circumstances of the event.” In this way, our Constitution distinguishes between bailable and non-bailable offenses. This post is limited to discussing bailable offenses.

There are two overarching concerns for a court when establishing bond: flight risk and danger to the community. In this way, when determining bail, the law further requires the court to consider 11 factors: (1) family ties, (2) employment, (3) financial resources, (4) character and mental condition, (5) length of residency in the community, (6) record of conviction/criminal record*, (7) record of flight to avoid prosecution or failure to appear at other court proceedings, (8) any other charges pending against the defendant, (9) the incident reports of the crime for which the defendant is charged, (10) whether the defendant is lawfully present in the U.S. and whether this legal status creates a flight risk, and (11) whether the defendant is listed in the state’s gang database.

The analysis of these factors is, unfortunately, largely subjective as there is no law directing the courts on how much weight judges should give each factor. This means co-defendants or even similarly situated defendants could receive different bonds. The case of the dentist and his co-defendant is a good example. One would think that, based on the fact that the co-defendant was charged with significantly more serious charges, his bond would have been higher and vice versa. On the face of it, it would appear that the dentist’s previous indictments for other drug-related crimes may have been a motivating factor in setting the $25,000 bond.

* The statute in question actually lists 12 factors for the court to consider, with six factors the court may consider (factors 1 through 6) and six factors the court must consider (factors 7 through 11 in addition to the defendant’s criminal record). For some reason, the defendant’s record of convictions/criminal record are listed twice, once in both categories of factors.