State v. Anderson

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 STATE v. ANDERSON—DISSENT

PALMER, J., with whom ROGERS, C. J., and McDON-
ALD, J., join, dissenting. As this court repeatedly has
stated, the purpose of bail in this state is, and always
has been, to ensure the appearance in court of a criminal
defendant awaiting trial. Despite this unchallenged prin-
ciple, and notwithstanding the right to bail expressly
guaranteed under article first, § 8, of the Connecticut
constitution,1 the majority today holds that a defendant
who concededly is not a flight risk may be held in lieu of
bail solely on account of his perceived dangerousness.
Because I do not agree that the state constitutional
right to bail permits this form of preventive detention,
I must dissent.
The majority accurately sets forth the facts and proce-
dural history in some detail. Lost in the thicket of the
procedural history of this case, however, are several
key points that are necessary for a full understanding
of the claim of the defendant, Francis Anderson, that
the imposition of a monetary bond under the circum-
stances of this case deprived him of his state constitu-
tional right to bail. First, although the defendant had
been released and transferred back to the Whiting
Forensic Division of Connecticut Valley Hospital (Whit-
ing) on a promise to appear on a previous felony assault
charge at the time he allegedly committed his most
recent assault, the trial court did not revoke the defen-
dant’s release on the basis that he committed that
assault while on pretrial release, which, under General
Statutes § 54-64f (c),2 the court was authorized to do.3
Rather, the court imposed a monetary bond in the new
case, and the defendant was transferred to the custody
of the Commissioner of Correction because he could
not afford to pay that bond. If the court had proceeded
to revoke the defendant’s release pursuant to § 54-64f,
the defendant would have been entitled to an eviden-
tiary hearing prior to the revocation, at which the state
would have been required to prove by clear and convinc-
ing evidence that the safety of others would be endan-
gered by the defendant’s release. See General Statutes
§ 54-64f (c). Because the trial court imposed a monetary
bond in the new case, however, no such hearing or
proof of his dangerousness was required.
Moreover, because the defendant was committed at
Whiting by virtue of his previous acquittal by reason of
mental disease or defect, an order releasing him on a
promise to appear—or, for that matter, any nonsurety
bond—would have resulted not in his release into the
community, but in his continued confinement at Whit-
ing. Thus, as the trial court recognized, there was no
risk that the defendant would fail to appear in court if
released, and it is undisputed that a monetary bond
was unnecessary to ensure the defendant’s appearance.
 Finally, the trial court’s sole consideration in setting
a bond in this case was its belief that the defendant
posed a safety risk to other patients and hospital staff
if he remained at Whiting, and the bond that the court
set was intended to ensure that the defendant would
be transferred from Whiting to the custody of the Com-
missioner of Correction. As the trial court explained,
in reaching its determination, it considered the defen-
dant’s ‘‘history of violence’’ based on the allegations
against him in the pending cases, concluding ‘‘that the
defendant posed a risk to the physical safety of other
people, [including] . . . not only the staff . . . work-
ing [at Whiting], but [also] . . . the other patients,’’
and that a $100,000 monetary bond was ‘‘necessary to
ensure the safety of these people.’’ Quite clearly, then,
the court imposed a monetary bond in an amount that
the defendant could not pay, with the result that the
defendant would be transferred from Whiting to the
custody of the Commissioner of Correction, solely
because the court believed that the defendant repre-
sented a threat to the staff and patients at Whiting.
Furthermore, although the trial court did not order the
defendant detained without bail on account of his dan-
gerousness—an order that would have been unlawful—
the undeniable purpose and effect of the court’s imposi-
tion of a high monetary bond was to ensure that the
defendant would be detained because of the threat he
posed to the safety of others. As a result, the defendant
has been preventively detained.4
On appeal, the defendant claims that the imposition
of a monetary bond for the purpose of ensuring that
he would be detained pending trial based solely on the
belief that he posed a threat to public safety violates
his right to bail under article first, § 8, of the Connecticut
constitution. For the reasons set forth hereinafter, I
agree with this contention.5
Article first, § 8, contains two provisions pertaining
to bail in criminal cases. First, like the eighth amend-
ment to the United States constitution, article first, § 8,
of the Connecticut constitution provides that excessive
bail shall not be required. Although it had been argued
that the prohibition on excessive bail under the eighth
amendment implies that bail may not be denied,6 the
United States Supreme Court rejected this view in
United States v. Salerno, 481 U.S. 739, 755, 107 S. Ct.
2095, 95 L. Ed. 2d 697 (1987). In that case, the respon-
dents challenged the constitutionality of the Bail
Reform Act of 1984, which authorized the pretrial deten-
tion of a defendant if, after an evidentiary hearing, the
court finds by clear and convincing evidence that ‘‘no
condition or combination of conditions will reasonably
assure the appearance of the [defendant] . . . and the
safety of any other person and the community . . . .’’
Public L. No. 98-473, 98 Stat. 1976, 1978–80 (1984), codi-
fied at 18 U.S.C. § 3142 (e) and (f) (Supp. II 1984).
The respondents claimed, inter alia, that this provision
violated the eighth amendment because the excessive
bail clause guaranteed their right to have bail set in an
amount no greater than that necessary to ensure their
appearance at trial. See United States v. Salerno, supra,
752–53. The court rejected this claim, concluding that
the ‘‘[e]ighth [a]mendment [does not] categorically [pro-
hibit] the government from pursuing other admittedly
compelling interests through regulation of pretrial
release.’’ Id., 753. According to the court, ‘‘[t]he only
arguable substantive limitation of the [b]ail [c]lause is
that the [g]overnment’s proposed conditions of release
or detention not be ‘excessive’ in light of the perceived
evil. . . . Thus, when the [g]overnment has admitted
that its only interest is in preventing flight, bail must
be set by a court at a sum designed to ensure that goal,
and no more . . . [but] when Congress has mandated
detention on the basis of a compelling interest other
than prevention of flight, as it has here, the [e]ighth
[a]mendment does not require release on bail.’’7 (Cita-
tion omitted.) Id., 754–55.
In contrast to the eighth amendment, however, article
first, § 8, of the Connecticut constitution expressly guar-
antees the right to bail in all but certain capital cases,
providing that, ‘‘[i]n all criminal prosecutions, the
accused shall have a right . . . to be released on bail
upon sufficient security, except in capital offenses,
where the proof is evident or the presumption great
. . . .’’ Although we previously have not considered
whether, in light of this additional protection, our state
constitution prohibits the use of bail to protect public
safety, we have concluded that a court may not deny
bail outright except in cases falling within the exception
expressly provided for in article first, § 8. See State v.
Menillo, 159 Conn. 264, 269, 268 A.2d 667 (1970) (‘‘the
bail provision of § 8 of article first of our constitution
makes clear that it was intended that in all cases, even
capital cases not falling within the exception, bail in a
reasonable amount should be ordered’’). We also have
recognized that the excessive bail clause of article first,
§ 8, ‘‘prevents a court from fixing bail in an unreason-
ably high amount so as to accomplish indirectly what
it could not accomplish directly, that is, denying the
right to bail.’’ Id. Thus, under our constitution, ‘‘[t]he
right to be released on bail upon sufficient security is
a fundamental constitutional right’’; State v. Olds, 171
Conn. 395, 404, 370 A.2d 969 (1976); and that right may
not be denied except in the limited circumstances set
forth in article first, § 8, itself. See, e.g., State v. Aillon,
164 Conn. 661, 662, 295 A.2d 666 (1972) (order) (follow-
ing determination of United States Supreme Court in
Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.
Ed. 2d 346 [1972], that death penalty as then imposed
nationwide was unconstitutional, defendant, who had
been charged in this state with murder, a capital offense
as defined by statute, was no longer ‘‘being detained
for an offense [that was] . . . punishable by death’’
and, therefore, was ‘‘entitled to bail and to release on
entering into a recognizance, with sufficient surety, for
his appearance before the court having cognizance of
the three offenses with which he [was] charged’’).
Although the right to bail is guaranteed by our consti-
tution, the administration of bail has long been gov-
erned by statute. The relevant procedures governing
pretrial release are set forth in General Statutes § 54-
64a. Prior to 1990, § 54-64a provided that, upon present-
ment of the defendant, the court was to release the
defendant ‘‘upon the . . . [least restrictive] conditions
of release found sufficient to provide reasonable assur-
ance of his appearance in court . . . .’’ General Stat-
utes (Rev. to 1989) § 54-64a. In 1990, however, the
General Assembly passed bail reform legislation that,
for the first time in our history, authorized courts to
consider public safety concerns when setting condi-
tions of release for certain crimes and to revoke bail
when a defendant violates the conditions set by the
court. See Public Acts 1990, No. 90-213, § 51; Public
Acts 1990, No. 90-261, § 9. As a result of this legislation,
§ 54-64a now contains two distinct provisions governing
the court’s pretrial release decision, depending on the
seriousness of the offense with which the defendant
is charged.
For defendants charged with most misdemeanors,
§ 54-64a (a) (1) still requires the court to impose the
least restrictive conditions necessary to ensure the
appearance of the defendant in court, and § 54-64a (a)
(2) sets forth factors relating to that purpose that the
court may consider when setting conditions of release.
For defendants charged with most felonies, however,
§ 54-64a (b) (1) now provides that ‘‘[the] court shall, in
bailable offenses, promptly order the release of [the
defendant] upon the first of the following conditions
of release found sufficient to reasonably ensure the
appearance of the [defendant] in court and that the
safety of any other person will not be endangered
. . . .’’ (Emphasis added.) Section 54-64a (b) (1) further
enumerates the conditions that the court may set, from
least restrictive to most restrictive, as follows: (1) a
written promise to appear without special conditions;
(2) a written promise to appear with nonfinancial condi-
tions; (3) a bond without surety in no greater amount
than necessary; and (4) a bond with surety in no greater
amount than necessary. Section 54-64a (b) (2) sets forth
certain factors that the court may consider in determin-
ing what conditions will ensure the defendant’s appear-
ance and the safety of other persons. In addition to
identifying factors relevant to ensuring the appearance
of the defendant, § 54-64a (b) (2) also authorizes the
court to consider ‘‘[1] the number and seriousness of
charges pending against the [defendant] . . . [2] the
[defendant’s] history of violence, [3] whether the [defen-
dant] has previously been convicted of similar offenses
while released on bond, and [4] the likelihood based
upon the expressed intention of the [defendant] that
[the defendant] will commit another crime while
released.’’ General Statutes § 54-64a (b) (2) (H), (J), (K)
and (L). Finally, § 54-64a (b) (3) requires the court to
‘‘state for the record any factors . . . that it considered
and the findings that it made as to the danger, if any,
that the [defendant] might pose to the safety of any
other person upon the [defendant’s] release that caused
the court to impose the specific conditions of release
that it imposed.’’ Thus, when a court sets conditions of
release for persons charged with most felonies, § 54-
64a (b) expressly instructs it to consider the safety of
other persons and authorizes it to consider the likeli-
hood that the defendant will commit another crime
if released.8
On the basis of this statutory language, the trial court
in the present case determined that, although a mone-
tary bond was not necessary to ensure the defendant’s
appearance in court, § 54-64a (b) (1) nevertheless
authorized it to set a monetary bond for the purpose
of ensuring the safety of other persons. The defendant
claims, however, that courts may not set financial condi-
tions of release solely to protect public safety. Rather,
the defendant contends, the purpose of bail under the
Connecticut constitution is to ensure the appearance
of the accused, and the right to be released ‘‘upon suffi-
cient security’’ pursuant to article first, § 8, mandates
that a trial court may set a monetary bond only in an
amount necessary to effectuate that end.9 The defen-
dant maintains that, because the trial court set a mone-
tary bond solely to protect the safety of Whiting patients
and staff by ensuring that he would be detained pending
trial, the imposition of a monetary bond in this case
violated his right to bail under article first, § 8.
We last examined the purposes of bail in State v.
Ayala, 222 Conn. 331, 610 A.2d 1162 (1992), which pre-
sented the issue of whether article first, § 8, precludes
courts from revoking a defendant’s bail for violating
nonfinancial conditions of release. In Ayala, the defen-
dant, Enrique Ayala, was arrested on several felony
charges. See id., 335. Ayala initially posted the monetary
bond set by the court and was released subject to cer-
tain conditions, one of which was that he not commit
any crime while on release. Id. Shortly after his release
on bond, Ayala was charged with second degree assault,
and, two days later, he was charged with threatening.
Id. Although he again was released on bond in those
cases, the state sought to revoke his bond in the first
case, claiming that revocation was warranted under
§ 54-64f because he had committed crimes in violation
of the conditions of his release. Id., 335–36. After a
hearing, the trial court found probable cause to believe
that Ayala had committed a crime while he was released
on bond, and also found by clear and convincing evi-
dence that the safety of another person, namely, the
victim in the assault case, would be endangered if Ayala
were to be released. Id., 337. Accordingly, in reliance
on § 54-64f (c), the court revoked Ayala’s bond in the
first case. Id.
On appeal, Ayala claimed, inter alia, that the right to
bail under article first, § 8, prohibited the court from
revoking his bail without setting a new bond. See id.,
342. We rejected that claim, explaining that ‘‘[t]he funda-
mental right to bail guaranteed under our state constitu-
tion must be qualified by a court’s authority to ensure
compliance with the conditions of release’’; id., 347;
and that, ‘‘[w]hile released on bail prior to trial, a defen-
dant is still within the constructive custody of the law.
State v. Bates, 140 Conn. 326, 330–31, 99 A.2d 133 (1953).
The trial court retains jurisdiction over the conditions
of release . . . and possesses the inherent authority to
exercise powers; to implement and enforce laws; to
exact obedience.’’ (Citations omitted; internal quotation
marks omitted.) State v. Ayala, supra, 222 Conn. 347.
We further explained that Ayala’s ‘‘failure to abide by
the conditions of his release resulted in a forfeiture of
his right to release’’; id., 348; and that, ‘‘[b]ecause [Ayala]
was initially released on bail, the requirements of article
first, § 8 . . . were met.’’ Id., 348–49. We also expressly
observed that this conclusion was ‘‘not inconsistent
with our statement in State v. Menillo, supra, [159
Conn.] 269, that the fundamental purpose of bail is
to ensure the presence of an accused throughout all
proceedings.’’ (Internal quotation marks omitted.) State
v. Ayala, supra, 349. As we explained, the revocation
of a defendant’s bail for the commission of an offense
while he is on release is consistent with the purpose
of ensuring the defendant’s appearance because ‘‘[i]t is
reasonable to suppose that a defendant who is arrested
and charged with the commission of additional and
serious crimes while on pretrial release might, as a
result of these charges, more readily be tempted to flee
the jurisdiction.’’ Id.; see also Mello v. Superior Court,
117 R.I. 578, 582, 370 A.2d 1262 (1977) (‘‘When one free
on bail commits other crimes, the pressure to flee the
court’s jurisdiction and fail to appear when summoned
is apt to increase. Thus, bail may also be conditioned
on the continuing good behavior of the accused.’’).
In addressing Ayala’s argument that the revocation
of his bail based on the commission of a crime con-
flicted with the fundamental purpose of bail under the
state constitution, we also looked to the history of the
right to bail in Connecticut. See State v. Ayala, supra,
222 Conn. 349–51. We noted that, prior to the adoption
of the right to bail provision in the 1818 constitution,10
the right to be admitted to bail was protected by statute
as early as 1672, and was incorporated into the 1750
revision of the statutory declaration of rights.11 Id., 350.
The relevant provision of the 1750 declaration of rights
provided that ‘‘no man’s person shall be restrained, or
imprisoned, by any authority whatsoever, before the
law hath sentenced him thereunto, if he can and will
give sufficient security, bail, or mainprize for his appear-
ance and good behaviour in the mean time, unless it
be for capital crimes, contempt in open court, or in
such cases wherein some express law doth allow of,
or order the same.’’ (Emphasis added.) Public Statute
Laws of the State of Connecticut (1808) tit. I, § 4, p. 24.
We explained that this language suggests that courts
had the authority to ensure the good behavior of defen-
dants who were released on bail pending trial. See State
v. Ayala, supra, 351. We observed that ‘‘[n]either the
text of the 1818 constitution nor that of any subsequent
constitution has made express reference in its bail pro-
vision to the defendant’s appearance or to the defen-
dant’s good behavior’’; (footnote omitted) id., 350–51;
and that ‘‘[l]egislative references to either purpose were
eliminated from statutes enacted after 1818 and before
1849 . . . .’’ Id., 351. We also indicated, however, that,
although ‘‘language providing that bail was conditioned
[on] a defendant’s appearance before the court reap-
peared in statutes enacted in [1849]12 and remained
thereafter . . . [t]here [was] no evidence . . . that the
framers of the 1818 constitution intended to abandon
the customary purposes of bail that were in effect at the
time of the adoption of the [1818] constitution . . . .’’
(Footnote added.) Id. On the basis of our understanding
of this history, we observed that, ‘‘while ensuring the
appearance of the defendant is a primary purpose of
bail in this state, it is not necessarily the sole purpose’’;
(emphasis in original) id., 350; and that, by permitting
trial courts to impose nonfinancial conditions of
release, the legislature recognized the court’s authority
to regulate and monitor the conduct of defendants who
have been released into the community pending trial.
See id., 349–51.
In Ayala, although we did not have occasion to con-
sider whether a trial court may set a monetary bond
as a means of detaining a dangerous defendant solely
in the interest of public safety, we strongly suggested
that courts are not authorized to set financial conditions
of release for that purpose. See id., 351. Rather, we
explained that ‘‘[c]onditioning pretrial release on a
defendant’s ability to meet a financial bond set by the
court emphasizes the appearance aspect of bond,’’
whereas ‘‘[t]he use of nonfinancial conditions of release
in addition to or in lieu of bond has broadened the
focus of the purposes of bail to recognize . . . that bail
is a method for ensuring a defendant’s good behavior
while on release.’’ (Emphasis added.) Id. In other words,
a trial court, pursuant to its authority over a defendant
who has been released on bail, also may impose nonfi-
nancial conditions to ensure the defendant’s good
behavior while he is awaiting trial, and the court may
enforce such conditions by revoking bail in the event
that the defendant fails to comply with them. This does
not mean, however, that a court may set a monetary
bond to prevent a defendant from obtaining release in
the first instance predicated on the concern that he
poses a danger to the public. Indeed, in agreeing with
the reasoning of the court in Mello v. Superior Court,
supra, 117 R.I. 585, we indicated in Ayala that our hold-
ing should not be interpreted as authorizing the deten-
tion of a defendant on the basis of public safety con-
cerns alone. See State v. Ayala, supra, 222 Conn. 352.
We explained that ‘‘[t]he authority . . . to revoke bail
in certain situations [should not] be construed as [sanc-
tioning the] authority to exercise preventive detention.
The former is a sanction for past acts, [whereas] the
latter [is] a prophylactic for the future.’’ (Internal quota-
tion marks omitted.) Id., quoting Mello v. Superior
Court, supra, 585.
Moreover, the history of the right to bail in Connecti-
cut belies any claim that our constitution allows courts
to set financial conditions of release as a means of
detaining a defendant for the protection of the public.
That history reveals, rather, that the sole legitimate
purpose for requiring a defendant to post a monetary
bond before being admitted to bail is to ensure his
appearance in court.13 We previously have recognized
that the 1818 constitution, and the declaration of rights
contained in article first of that constitution in particu-
lar, did not establish new or additional rights but, rather,
incorporated into our founding document certain funda-
mental rights that already were protected by statute or
the common law. See, e.g., Dowe v. Egan, 133 Conn.
112, 119, 48 A.2d 735 (1946); see also W. Horton, The
Connecticut State Constitution (2d Ed. 2012) pp. 3–4;
C. Collier, ‘‘The Connecticut Declaration of Rights
Before the Constitution of 1818: A Victim of Revolution-
ary Redefinition,’’ 15 Conn. L. Rev. 87, 96 (1982). Consis-
tent with this view, when interpreting provisions of our
constitution, we have observed that, ‘‘[t]o understand
the intent of the instrument it is often necessary to have
recourse to the form of government as it had existed
before, and did exist at the time of, the adoption of the
[1818] constitution.’’ Dowe v. Egan, supra, 119; see, e.g.,
State v. Stoddard, 206 Conn. 157, 164–65, 537 A.2d 446
(1988) (reviewing history of right to counsel in Connect-
icut in concluding that state constitution requires that
suspect in custody be informed of efforts by counsel
to render legal assistance). Thus, in determining
whether the right to be released on ‘‘sufficient sureties’’
within the meaning of article first, § 14, of the 1818
constitution; see footnote 10 of this opinion; included
the right to a monetary bond in an amount no more
than necessary to ensure the defendant’s appearance,
we must examine the statutes and case law leading up
to the adoption of the 1818 constitution to ascertain
the purpose of bail as it was understood at that time.
Significantly, statutory provisions enacted both
before and immediately after the adoption of the 1818
constitution suggest that the purpose of bail was to
ensure the appearance of the accused, and that bail
should be set in an amount necessary to effectuate that
purpose. For example, a statutory provision passed in
1784 authorizing justices of the peace to set bail in
criminal matters ‘‘not determinable by a single minister
of justice’’ indicated that ‘‘such [justices of the peace]
shall recognize with surety, such person or persons, if
bailable, to appear before the court proper to try and
determine the [matter]: and for want of sufficient bail
to commit him or them to gaol, for the purpose afore-
said . . . .’’ (Emphasis added.) Public Statute Laws of
the State of Connecticut (1808) tit. XLVI, c. I, § 3, p.
230. Thus, justices of the peace were to set bail in an
amount necessary to ensure the defendant’s appear-
ance, and a person who could not post bail was detained
so that he could be brought to appear before the court
in which the matter would be tried. This provision was
carried over in substantially similar form when the stat-
utes were rewritten and reenacted following the adop-
tion of the 1818 constitution. See Public Statute Laws
of the State of Connecticut (1821) tit. 22, § 99, p. 172.
In the chapter of the 1821 statutes setting forth the
powers of the justices of the peace, another provision
provided that justices of the peace ‘‘may order the
defendant to give bond, or to enter into a recognizance,
with sufficient surety . . . conditioned that the defen-
dant appear before the court having cognizance of the
offence . . . .’’ (Emphasis added.) Public Statute Laws
of the State of Connecticut (1821) tit. 21, § 35, p. 147.
The provisions contained in the 1821 statutes shed con-
siderable light on the meaning of the 1818 constitution
because the committee appointed to revise the statutes
following the adoption of the 1818 constitution was
instructed ‘‘to examine the statute laws, and to recom-
mend such alterations and provisions as should be nec-
essary and expedient to render the statutes confor-
mable to the constitution.’’ Public Statute Laws of the
State of Connecticut (1821) p. viii. Consequently, the
1821 statutes provide an indication of how the constitu-
tional provisions were understood at that time. Notably,
there is no indication in either the pre-1818 or post-
1818 statutes that courts were authorized to set a mone-
tary bond to protect the public from a defendant per-
ceived to pose a safety risk.
Although there is no case law at or around the time
of the adoption of the 1818 constitution that squarely
addresses the issue, several cases from that time sup-
port the view that the purpose of bail was to ensure
the appearance of the defendant. For example, in Dick-
inson v. Kingsbury, 2 Day (Conn.) 1 (1805), in which
this court, in a memorandum decision, held that a sheriff
may take bail from a defendant who could not post bail
at the time he was put to plea, the court reasoned that
‘‘[t]he personal liberty of the subject is to be favored,
as far as practicable and safe, until conviction. Bail
for his appearance at the court, in which his guilt or
innocence is to be tried, is, at once, the mode of favoring
liberty, and securing the appearance for trial.’’
(Emphasis added.) Id., 11 (reporter’s summary of case).
Subsequently, in Potter v. Kingsbury, 4 Day (Conn.)
98 (1809), this court held that a justice of the peace
conducting an inquiry into whether there was probable
cause to bind a defendant over for trial had the authority
to adjourn court for the purpose of allowing the state
or the defendant to obtain witnesses, and to ‘‘commit
[a defendant] to gaol for safe-keeping, unless he offers
bail for his appearance . . . .’’ (Citation omitted.) Id.,
99. In so holding, the court noted that, if the defendant
offered bail, ‘‘it [became] the duty of the justice of the
peace to take bail, if good and sufficient be offered, for
the appearance of the [defendant].’’ (Emphasis added.)
Id. In expounding on the purpose of bail, the court
further explained that ‘‘[the power to take bail] will not
only give a reasonable opportunity to persons prose-
cuted for offenses to prepare for their defense, but will
save them from imprisonment. Justices of the peace,
however, in the exercise of this power, should take
bonds sufficient to enforce an appearance of the [defen-
dant], according to the nature and enormity of the
offense.’’ (Emphasis added.) Id., 100.
In sum, contemporaneous statutes and case law indi-
cate that, when the 1818 constitution was adopted, it
was well understood that the sole purpose of bail was
to ensure the appearance of the defendant. As one
author put it in a comment containing an in-depth
review of the history of bail in Connecticut that was
published just after the enactment of the 1990 bail
reform legislation, ‘‘[t]he only permissible object of bail
since 1818 has been to assure a defendant’s appearance
before the court at a later date. . . . [T]he meaning of
bail established in the state constitution not only refers
to the right of those accused of noncapital offenses to
be released before trial, but also to the notion that the
only valid state interest in conditioning the accused’s
release is assuring his appearance before the court.’’
M. Mann, comment, ‘‘Overlooking the Constitution: The
Problem With Connecticut’s Bail Reforms,’’ 24 Conn.
L. Rev. 915, 941 (1992).
This understanding is consistent with the common-
law origins of our bail system. Cf. State v. Joyner, 225
Conn. 450, 489, 625 A.2d 791 (1993) (Berdon, J., dis-
senting) (‘‘it is clear that in the colonial days and into
the time of [Zephaniah] Swift’s writings, Connecticut
jurists relied [on William] Blackstone as a source of the
common law’’); State v. Geisler, 222 Conn. 672, 687–88,
610 A.2d 1225 (1992) (discussing English common law
in course of deciding scope of protections under article
first, § 7, of Connecticut constitution). Under English
common law, a ‘‘bail’’ was a person who promised to
ensure that the accused would appear before the court,
and, upon such promise, the accused would be ‘‘deliv-
ered . . . into the custody of his bail, to be forthcoming
at a certain day, and [was] therefore said to be a surety
of body . . . for an appearance . . . .’’ (Internal quo-
tation marks omitted.) A. Highmore, A Digest of the
Doctrine of Bail; In Civil and Criminal Cases (1783) pp.
v–vi. If the accused failed to appear, the bail would
become liable for the amount of the bond. Id., pp. 200–
201; see also P. Rice, ‘‘Bail and the Administration of
Bail in the State of Connecticut,’’ 4 Conn. L. Rev. 1, 1
(1971). As Blackstone explained, when a justice of the
peace found that there was just cause to bind an
accused for trial for an offense, the accused was
required ‘‘either [to] be committed to prison, or [to]
give bail; that is, put in securities for his appearance,
to answer the charge against him. This commitment,
therefore, being only for safe custody, wherever bail
will answer the same intention, it ought to be taken
. . . .’’ (Emphasis added.) 4 W. Blackstone, Commen-
taries on the Laws of England (1807) p. 296. A 1783
treatise on the law of bail in England noted that justices
of the peace should set bail in an amount ‘‘sufficient
to prevent the offender’s absconding’’; A. Highmore,
supra, p. 194; and ‘‘must take care that, under preten[se]
of demanding sufficient surety, they do not make so
excessive a demand as in effect amounts to a denial of
bail . . . .’’ Id., p. 196.
Although bail generally was denied in capital cases,
there is no suggestion that this was due to concerns
over the dangerousness of the accused. To the contrary,
these authorities make clear that bail was not allowed
in capital cases because a person charged with a capital
offense would be more likely to flee than to appear and
stand trial, and it was believed that ‘‘the public [was]
entitled to demand nothing less than the highest secu-
rity that can be given, [namely, in the form of] the body
of the accused; in order to ensure that justice shall be
done upon him, if guilty. Such persons therefore . . .
have no other sureties but the four walls of the prison.’’
4 W. Blackstone, supra, p. 298; see also id., pp. 296–97
(‘‘[I]n . . . offences of a capital nature, no bail can be
a security equivalent to the actual custody of the person.
For what is there that a man may not be induced to
forfeit, to save his own life?’’); L. Tribe, ‘‘An Ounce
of Detention: Preventive Justice in the World of John
Mitchell,’’ 56 Va. L. Rev. 371, 401 (1970) (explaining that
‘‘the underlying assumption seems to have been that
certain classes of offenders, particularly those whose
lives were at stake, ought to be detained simply to
assure their presence at trial,’’ both because of ‘‘the
greater temptation to flee’’ and ‘‘the fear that persons
guilty of especially atrocious offenses might well be
killed before they could appear for trial’’).
That the right to bail under article first, § 8, prohibits
courts from setting a bond solely on the basis of a
defendant’s perceived dangerousness is further evi-
denced by the consistency with which our legislature
and courts have indicated that bail is to be conditioned
on the appearance of the defendant. ‘‘A practical con-
struction placed [on] a constitutional provision immedi-
ately after its adoption and consistently and repeatedly
followed by the executive and legislative branches for
over [one] century thereafter is most persuasive . . .
[and] furnishes strong evidence of the meaning to be
accorded the [provision]. A practice of such duration,
while not absolutely binding, is entitled to great regard
in determining the true construction of the constitu-
tional provision.’’ (Citation omitted.) Cahill v. Leopold,
141 Conn. 1, 14, 103 A.2d 818 (1954). As I discussed
previously, statutes governing the administration of bail
have provided for the setting of a bond to ensure the
defendant’s appearance since at least 1784. In 1849, the
statute implementing the right to bail in criminal cases
expressly provided that ‘‘[a]ll persons detained in jail
for trial, for an offence not capital, shall be entitled
to bail for their appearance before the court having
cognizance of the offence . . . .’’ (Emphasis added.)
Revised Statutes of the State of Connecticut (1849) tit.
VI, c. XII, § 163, p. 259. Just two years after the adoption
of the Connecticut constitution of 1965, the legislature
amended the bail statutes to allow for release on a
written promise to appear in lieu of a monetary bond,
and provided that the accused must be released upon
the imposition of the least restrictive conditions suffi-
cient ‘‘to provide reasonable assurance of his appear-
ance in court . . . .’’14 Public Acts 1967, No. 549, § 12,
codified at General Statutes (Rev. to 1968) § 54-64a.
Although Connecticut’s bail statutes have been
amended several times throughout the state’s history,
language providing that bail must be set solely in order
to ensure the defendant’s appearance remained in effect
until the 1990 bail reform effort resulted in the current
language. Indeed, for more than 150 years after the
adoption of the 1818 constitution, no Connecticut stat-
ute authorized a court to consider public safety in
determining whether to release a defendant on bail
until the current language was added in 1990. The long
history of legislative enactments requiring courts to set
bail to ensure the appearance of the accused, and the
absence of any language suggesting that courts may
consider public safety concerns when setting bail, pro-
vides support for the conclusion that the state constitu-
tional right to bail cannot be squared with the
imposition of a monetary bond solely for the purpose
of detaining a defendant on the ground that he poses
a danger to others.
Of course, this court also has expressed the view that
the purpose of requiring a monetary bond is to ensure
the appearance of the accused. As I previously noted,
in State v. Menillo, supra, 159 Conn. 265, this court
stated that ‘‘[t]he fundamental purpose of bail is to
ensure the presence of the accused throughout all pro-
ceedings, including final judgment.’’ Id., 269. In
explaining that the excessive bail clause of article first,
§ 8, prevents a court from circumventing the right to
bail by setting an unreasonably high bond, the court
also indicated that, although ‘‘a reasonable amount is
not necessarily an amount within the power of the
accused to raise,’’ the bond must be ‘‘reasonable under
all the circumstances relevant to the likelihood that the
accused will flee the jurisdiction or otherwise avoid
being present for trial.’’ (Emphasis added.) Id.
In State v. Bates, supra, 140 Conn. 326, this court,
in the course of addressing whether a person who is
released on bail is considered in custody such that his
failure to deny an accusation of guilt may not be admit-
ted against him as an adoptive admission,15 indicated
that ‘‘[t]he object of requiring bail is to compel the
presence of [the] defendant in court, to the end that
justice may be administered. . . . Its purpose is to
secure [at trial] the presence of the person charged
with [a] crime . . . and to force him to submit to the
jurisdiction and the punishment imposed by the court.’’
(Citation omitted; internal quotation marks omitted.)
Id., 330; see also State v. Hedge, 297 Conn. 621, 671–72,
1 A.3d 621 (2010) (in prosecution for failure to appear
in violation of condition of bail, evidence that defendant
was free on bond, that bond was forfeited, and that
defendant was rearrested after failing to return to court
was deemed sufficient to support inference that appear-
ance in court was term of bond because ‘‘it is a matter
of common knowledge that bonds and bail are posted
as a condition of release for the purpose of ensuring
the presence of an accused for all court proceedings
pertaining to the charged offense’’); cf. State v. Sheriff,
301 Conn. 617, 626, 21 A.3d 808 (2011) (when accused
released on bond fails to appear, surety may be dis-
charged ‘‘only when appearance at trial is made impossi-
ble by an act of God, an act of the state, or pursuant
to law’’ because, ‘‘[b]y posting bond for the accused,
the surety willingly takes custody of the accused in
place of the state and insures the state against the risk
of flight by accepting responsibility for the conse-
quences thereof’’ [emphasis added]). Throughout the
history of Connecticut jurisprudence, there is not a
single case in which a Connecticut court has indicated
that a monetary bond may be set in a criminal case for
the purpose of protecting public safety.
This long held view of the purpose of bail carries
additional weight in light of the fact that the framers
of the 1965 constitution adopted article first, § 8, with-
out any indication that they intended to depart from
this state’s prior understanding of the right to bail.
Although we generally have focused on how constitu-
tional provisions were understood in 1818 when inter-
preting those provisions that were readopted in similar
or identical form in the 1965 constitution; see, e.g., State
v. Lamme, 216 Conn. 172, 178–81, 579 A.2d 484 (1990);
we occasionally have looked to the state of the law in
1965 to understand how protections contained in the
declaration of rights were understood by the framers
of the 1965 constitution. See, e.g., Ryszkiewicz v. New
Britain, 193 Conn. 589, 598, 479 A.2d 793 (1984) (con-
cluding that provision in city charter limiting municipal
liability does not infringe right to access courts under
article first, § 10, because, ‘‘[g]iven that governmental
immunity was a well established judicial principle at
the time of the Connecticut constitution’s adoption in
1818 and in 1965, the provision granting access to courts
for redress of grievances found in article first, § 10,
cannot be construed as granting an unqualified right to
recover unlimited damages from government entities’’);
see also W. Horton, supra, p. 34 (‘‘[t]he more logical
approach . . . would assume that the framers [of the
1818 constitution] intended continuity, not disruption,
and thus that they intended for the 1818 provisions
reenacted in 1965 to continue to mean what they had
come to mean by 1965’’). As already demonstrated,
when the 1965 constitution was adopted, it was long
understood in Connecticut that the essential purpose
of bail was to ensure the appearance of the accused.
It also bears noting that the 1965 constitution was
adopted amidst a nationwide push for bail reform, dur-
ing which the constitutionality of preventive detention
was the subject of active and widespread debate. See
D. Freed & P. Wald, Bail in the United States: 1964, pp.
vii–viii, 9–21 (discussing initiatives aimed at reforming
bail system and reviewing studies concerning bail sys-
tems in various jurisdictions published between 1924
and 1963); C. Foote, ‘‘The Coming Constitutional Crisis
In Bail: I,’’ 113 U. Pa. L. Rev. 959, 961–65 (1965) (dis-
cussing efforts to reform bail system). Shortly before
the adoption of the 1965 constitution, the Department
of Justice sponsored the National Conference on Bail
Reform and Criminal Justice, a highly publicized effort
aimed at addressing deficiencies in the bail system.
See Proceedings and Interim Report of the National
Conference on Bail and Criminal Justice (April, 1965)
pp. xiii–xvii. One of the chief concerns addressed by the
conference was the propriety of using a high monetary
bond as a means of detaining defendants prior to trial,
and the resulting report indicated that ‘‘[a] substantial
body of opinion supports the view that setting high bail
to detain dangerous offenders is unconstitutional.’’ Id.,
p. xxix. A short time later, the American Bar Association
issued proposed standards for the administration of
bail, which provide in relevant part that ‘‘[t]he sole
purpose of money bail is to assure the defendant’s
appearance. Money bail should not be set to punish or
frighten the defendant, to placate public opinion or
to prevent anticipated criminal conduct.’’ Project on
Minimum Standards for Criminal Justice: Standards
Relating to Pretrial Release (A.B.A., Approved Draft
1968) § 5.3 (b), p. 58; see also id., § 1.2 (c), p. 26 (‘‘money
bail . . . should be required only in cases in which no
other condition will reasonably ensure the defendant’s
appearance’’). The introduction to the standards
explains that purposely setting bail beyond the defen-
dant’s reach is ‘‘generally regarded as a distortion of
the bail system’’ and that ‘‘only confusion and dissatis-
faction can result from attempting to twist the bail
system in order to prevent crime.’’ Id., p. 6.
Around the same time, federal courts expressed the
view that setting bail for the purpose of preventing
the accused from committing additional crimes was
contrary to the purpose of bail under the eighth amend-
ment to the United States constitution. In 1950, Justice
Robert H. Jackson, acting as a Circuit Justice in connec-
tion with an application by the government to revoke
the bail of several members of the Communist Party
whose convictions for conspiring to overthrow the gov-
ernment had been upheld by the Second Circuit Court
of Appeals, rejected the government’s contention that
bail should be revoked because the defendants posed
a danger to the public as ‘‘difficult to reconcile with
traditional American law . . . .’’ Williamson v. United
States, 184 F.2d 280, 282 (2d Cir. 1950). As Justice Jack-
son wrote, ‘‘[i]mprisonment to protect society from pre-
dicted but unconsummated offenses is so unprece-
dented in this country and so fraught with danger of
excesses and injustice that I am loath to resort to it,
even as a discretionary judicial technique to supplement
conviction of such offenses as those of which defen-
dants stand convicted.’’ Id., 282–83. A little more than
one year later, the United States Supreme Court con-
cluded that bail set at $50,000 for twelve petitioners
charged with conspiring to overthrow the government
was excessive under the eighth amendment in light of
the lack of evidence tending to show that the petitioners
were a flight risk. See Stack v. Boyle, 342 U.S. 1, 3, 5–6,
72 S. Ct. 1, 96 L. Ed. 3 (1951). The court noted that
‘‘[t]he right to release before trial is conditioned [on]
the accused’s giving adequate assurance that he will
stand trial and submit to sentence if found guilty’’; id.,
4; and that ‘‘[b]ail set at a figure higher than an amount
reasonably calculated to fulfill this purpose is ‘exces-
sive’ under the [e]ighth [a]mendment.’’ Id., 5. Justice
Jackson wrote separately and emphasized that,
although he disagreed with the court’s disposition of
the case on procedural grounds, the government’s argu-
ment that bail may be ‘‘fixed not as a reasonable assur-
ance of [a defendant’s] presence at the trial, but also
as an assurance [that he] would remain in jail’’ was
‘‘contrary to the whole policy and philosophy of bail.’’
Id., 10 (Jackson, J.). Against this backdrop, the fact that
the framers of the 1965 constitution retained the right
to bail without any suggestion that bail may be used
as a means of detaining a defendant on grounds of
dangerousness suggests that they intended to maintain
the understanding of the purpose of bail that had been
embedded in Connecticut law for close to two cen-
turies.
 Courts in other jurisdictions with state constitutional
right to bail provisions similar or identical to our own
also have concluded that the purpose of bail is to ensure
the appearance of the accused and that preventive
detention, either by the outright denial of bail or by
setting a prohibitively high monetary bond, is not consti-
tutionally permissible. As this court previously has
observed, it appears that the declaration of rights
adopted in 1818 has its antecedents in the Mississippi
constitution of 1817. E.g., State v. Jenkins, 298 Conn.
209, 267, 3 A.3d 806 (2010). Thus, case law interpreting
the Mississippi constitution’s declaration of rights may
be particularly persuasive when we interpret similar
provisions in our own constitution. With respect to the
right to bail, the corresponding provision in the Missis-
sippi constitution of 1817 is identical in all material
respects to the provision that the framers of our 1818
constitution adopted. Compare Conn. Const. (1818),
art. I, § 14 (‘‘[a]ll prisoners shall, before conviction, be
bailable by sufficient sureties, except for capital
offences, where the proof is evident, or the presumption
great’’), with Miss. Const. (1817), art. I, § 17 (‘‘all prison-
ers shall, before conviction, be bailable by sufficient
securities, except for capital offences, when the proof
is evident or the presumption great’’). Significantly, the
Supreme Court of Mississippi has stated unequivocally
that ‘‘the very purpose of bail is to [e]nsure the accused’s
appearance’’; Ex parte Dennis, 334 So. 2d 369, 371
(Miss. 1976); and that, ‘‘[s]ince the purpose of allowing
bail is to secure the presence of the accused at trial,
the amount of bail to be required is governed largely by
the character of the offense committed and the financial
ability of the accused.’’ Royalty v. State, 235 So. 2d 718,
720 (Miss. 1970);16 see also In re Underwood, 9 Cal. 3d
345, 348, 508 P.2d 721, 107 Cal. Rptr. 401 (1973) (‘‘The
purpose of bail is to assure the defendant’s attendance
in court when his presence is required . . . . Bail is
not a means for punishing defendants . . . nor for pro-
tecting the public safety.’’ [Citations omitted.]), abro-
gated by 1982 amendment to Cal. Const., art. I, § 12;
Commonwealth v. Truesdale, 449 Pa. 325, 338–39, 296
A.2d 829 (1972) (‘‘Bail was conceived as a means of
securing the accused’s presence at trial, while at the
same time according him liberty prior to trial so he
could prepare his case. The traditional decision to deny
bail [in capital cases] was not a means of keeping an
accused confined to protect the public, it was a means
of assuring he would appear at trial.’’), abrogated by
1998 amendment to Pa. Const., art. I, § 14; State v. Pray,
133 Vt. 537, 541–42, 346 A.2d 227 (1975) (‘‘[t]he purpose
of bail, as presently constitutionally mandated, is to
assure the defendant’s attendance in court, and cannot
be a means of punishing the defendant, nor of protecting
the public’’), abrogated by 1994 amendment to Vt.
Const. c. II, § 40; Saunders v. Hornecker, 344 P.3d 771,
780–81 (Wyo. 2015) (‘‘the purpose of bail in Wyoming
is to ensure the defendant’s presence to answer the
charges without excessively restricting the defendant’s
liberty pending trial’’ [emphasis omitted]).17
In accord with this view, courts in several states have
concluded that their respective constitutions do not
allow the use of financial conditions of release as a
means of ensuring that a defendant remains detained
pending trial. For example, in People ex rel. Sammons
v. Snow, 340 Ill. 464, 173 N.E. 8 (1930), the petitioner
was charged with vagrancy but had a history of convic-
tions for violent offenses, as well as pending indict-
ments for other offenses. Id., 465–66, 468. The trial court
set bail at $50,000, indicating that the purpose was to
ensure that the petitioner could not obtain release. Id.,
469. On appeal, the Illinois Supreme Court concluded
that setting bail for purposes of preventive detention
violated the right to bail under the Illinois constitution:18
‘‘[The petitioner’s criminal] record may be taken into
consideration in fixing the amount of bail which would
be reasonably sufficient to [e]nsure his attendance to
answer this comparatively minor charge. But bail to
answer this charge cannot be fixed with reference to
securing his appearance to answer [for] the other
crimes with which he is charged, or at an unreasonable
amount for this charge, merely to detain and imprison
him. His record, his character and his criminal activities
and tendencies may well be taken into account to
increase the amount of bail which should be required
of him over that which would be required of an ordinary
offender but do not justify fixing the bail on this charge
of vagrancy for the purpose of keeping him in jail. . . .
The amount of $50,000 could have no other purpose
than to make it impossible for him to give the bail
and to detain him in custody, and is unreasonable.’’19
Id., 468–69.
The Supreme Court of Missouri came to the same
conclusion in State ex rel. Corella v. Miles, 303 Mo.
648, 262 S.W. 364 (1924). At that time, the Missouri
constitutional provisions guaranteeing the right to bail
and prohibiting excessive bail were essentially identical
to that of our 1818 constitution. Compare Mo. Const.
(1875), art. II, §§ 2420 and 25,21 with Conn. Const. (1818),
art. I, §§ 13 and 14. Relying on both provisions of the
Missouri constitution, the Supreme Court of Missouri
recognized that ‘‘[t]he purpose of giving bonds is to
secure the appearance of the defendant at trial, and
when the [c]onstitution forbids excessive bail it means
that bail shall not be more than necessary to secure
that attendance.’’ State ex rel. Corella v. Miles, supra,
651. ‘‘Since the only purpose of bond is to secure the
appearance of the defendant at the trial, any bail fixed
at more than is necessary to secure that appearance
is excessive within the meaning of [the constitutional
prohibition on excessive bail].’’ Id., 651–52. The court
further observed that ‘‘[t]he bail bond must be fixed
with a view to giving the prisoner his liberty, not for
the purpose of keeping him in jail. If, in order to keep
him in custody, the bond is ordered at a sum so large
that the prisoner cannot furnish it the order violates
[the right to bail under the Missouri constitution]. For
that is saying the offense is not bailable when the [c]on-
stitution says it is.’’22 Id., 652; see also Gusick v. Boies,
72 Ariz. 233, 235, 236, 238, 233 P.2d 446 (1951) (conclud-
ing that $150,000 bail for defendant charged with sod-
omy and fellatio violated state constitutional provisions
guaranteeing right to bail and prohibiting excessive bail,
noting that ‘‘any bail fixed at more than is necessary to
secure [the defendant’s] appearance is excessive within
the meaning of the [Arizona] constitution . . . [and]
excessive bail is not to be required for the purpose of
preventing the prisoner from being admitted to bail’’
[citation omitted]); State ex rel. Hemby v. O’Steen, 559
S.W.2d 340, 341, 342 (Tenn. Crim. App. 1977) (although
trial court set bail at $25,000 and declined to reduce
bail because defendant was ‘‘threat to his family, and
to society, particularly while under the influence of
alcohol,’’ Court of Criminal Appeals concluded that bail
was excessive under circumstances, noting that defen-
dant was ‘‘confined nearly three months due to his
inability to secure bail,’’ which was ‘‘tantamount to a
denial of bail’’); Simms v. Oedekoven, 839 P.2d 381,
385 (Wyo. 1992) (concluding that Wyoming constitution
does not permit denial of bail or setting of bail high
enough to ensure that defendant remains detained
because ‘‘either course would violate the provisions of
. . . the Wyoming [c]onstitution [which guarantees the
right to bail]’’).23
Finally, it is highly questionable whether the legisla-
ture, in amending § 54-64a, intended to authorize courts
to set a monetary bond as a means of detaining a defen-
dant solely on the basis of public safety concerns. As
I noted previously, when the United States Supreme
Court concluded in Salerno that the preventive deten-
tion scheme established by the federal Bail Reform Act
of 1984 (act) did not violate substantive due process,
the court emphasized that, because of the procedures
required before a defendant may be detained under
the act, including the requirement that the government
prove by clear and convincing evidence that no condi-
tions of release could adequately protect the safety of
the public; see 18 U.S.C. § 3142 (e) and (f) (Supp. II
1984); the act was sufficiently narrowly tailored to fur-
ther the government’s compelling interest in preventing
crime by arrestees. See United States v. Salerno, supra,
481 U.S. 751 (‘‘When the [g]overnment proves by clear
and convincing evidence that an arrestee presents an
identified and articulable threat to an individual or the
community, we believe that, consistent with the [d]ue
[p]rocess [c]lause, a court may disable the arrestee from
executing that threat. Under these circumstances, we
cannot categorically state that pretrial detention
offends some principle of justice so rooted in the tradi-
tions and conscience of our people as to be ranked
as fundamental.’’ [Internal quotation marks omitted.]).
Thus, it seems quite clear that, under the due process
clause of the fourteenth amendment, ‘‘[a] [s]tate may
not enact [preventive] detention schemes without pro-
viding safeguards similar to those [that] Congress incor-
porated into the [act].’’ Aime v. Commonwealth, 414
Mass. 667, 680, 611 N.E.2d 204 (1993); cf. Foucha v.
Louisiana, 504 U.S. 71, 81, 112 S. Ct. 1780, 118 L. Ed. 2d
437 (1992) (concluding that Louisiana statutory scheme
allowing continued confinement of insanity acquitee
who no longer suffers from mental illness violates due
process because, ‘‘[u]nlike the sharply focused scheme
at issue in Salerno, the Louisiana scheme of confine-
ment [was] not carefully limited’’).
In Connecticut, the bail reform legislation that
resulted in the current version of § 54-64a was enacted
just three years after the United States Supreme Court
issued its opinion in Salerno. Nevertheless, in authoriz-
ing courts to set conditions of release for public safety
purposes, the General Assembly did not provide for any
procedural protections comparable to those that the
United States Supreme Court had relied on in upholding
the constitutionality of the act. Our legislature did, how-
ever, provide for similar protections before a court may
revoke the bail of a defendant who violates the condi-
tions of his release, as authorized by this court in State
v. Ayala, supra, 222 Conn. 346–50. See General Statutes
§ 54-64f (b) (requiring state to prove by clear and con-
vincing evidence that safety of any other person is
endangered before court may revoke release). The
inference to be drawn from this legislative action is
clear: cognizant of the due process requirements enun-
ciated in Salerno, the legislature did not intend or antici-
pate that courts would use a monetary bond as a means
of detaining a defendant deemed to pose a risk to public
safety. It is apparent, rather, that, in requiring the
release of a defendant on conditions ‘‘found sufficient
to reasonably ensure the appearance of the [defendant]
in court and that the safety of any other person will
not be endangered’’; General Statutes § 54-64a (b) (1);
the legislature contemplated that courts would set a
monetary bond if necessary to ensure the defendant’s
appearance but would use only nonfinancial condi-
tions of release for the purpose of ensuring the safety
of others. Indeed, any other conclusion would require
the presumption that, in enacting § 54-64a (b) (1), the
legislature simply chose to ignore the federal due pro-
cess protections required under Salerno in the case of
an arrestee who, like the defendant in the present case,
is detained solely on the ground that he poses a danger
to others. Obviously, that would be a wholly inappropri-
ate and unjustifiable assumption. See, e.g., Castagno v.
Wholean, 239 Conn. 336, 344–45, 684 A.2d 1181 (1996)
(‘‘[Because we] read statutes to avoid, rather than to
create, constitutional questions . . . [we] are bound
to assume that the legislature intended, in enacting a
particular law, to achieve its purpose in a manner [that]
is both effective and constitutional. . . . [T]his pre-
sumption of constitutionality imposes [on] . . . this
court . . . the duty to construe statutes, whenever pos-
sible, in a manner that comports with constitutional
safeguards of liberty.’’ [Citations omitted; internal quo-
tation marks omitted.]).
For all of the foregoing reasons, I agree with the
defendant that the imposition of a monetary bond for
the sole purpose of ensuring the safety of others
deprived him of his right to bail under article first, § 8,
of the Connecticut constitution. Although the majority
attempts to support its contrary conclusion with certain
historical facts, the majority’s evidence falls well short
of its mark.
For example, the majority notes that, in Ayala, we
indicated that the right to bail provision contained in
the preconstitutional declaration of rights suggests that
ensuring a defendant’s good behavior while released
during the pretrial period was a legitimate purpose of
bail at that time, and that ‘‘[t]here is no evidence . . .
that the framers of the 1818 constitution intended to
abandon’’ that purpose. (Internal quotation marks omit-
ted.) Part I of the majority opinion, quoting State v.
Ayala, supra, 222 Conn. 351. The majority reasons that,
because courts customarily had the authority, when
setting bail, to ensure a defendant’s good behavior while
the defendant was on pretrial release, the trial court in
the present case properly ‘‘considered the need to
ensure the safety of others, regardless of whether the
defendant was a potential flight risk,’’ and then set a
monetary bond ‘‘as a means to ensure the safety of
other persons.’’ As I explained previously, however, in
Ayala, we were not asked to decide whether article
first, § 8, permits a court to set a monetary bond as a
means of protecting public safety. In that case, rather,
we were concerned with whether the constitution
allows the court to set nonfinancial conditions of
release to ensure the defendant’s good behavior and to
revoke bail when a defendant fails to comply with those
conditions. See State v. Ayala, supra, 333–36. Our con-
clusion that a court may revoke the bail of a defendant
who endangers public safety by committing a crime in
violation of the conditions of his release does not mean
that a court may set a monetary bond for the sole
purpose of preventing a defendant from obtaining
release in the first instance, and we expressly indicated
as much in Ayala by clarifying that we were not endors-
ing preventive detention as a constitutionally permissi-
ble practice. See id., 352–53.
The majority’s reliance on the language of the precon-
sititutional statutory right to bail is similarly misplaced.
First, as I previously explained; see footnote 13 of this
opinion; a comparison of the preconstitutional provi-
sion with the language of article first, § 14, of the 1818
constitution suggests that the right to bail adopted by
the framers of the constitution was broader than that
right under the preconstitutional provision. Second,
there is no evidence that the preconstitutional provision
authorized courts to set bail as a means of ensuring
that a defendant remained detained prior to trial, as it
provided that ‘‘no man’s person shall be restrained, or
imprisoned, by any authority whatsoever, before the
law hath sentenced him thereunto, if he can and will
give sufficient security . . . for his appearance and
good behaviour in the mean time . . . .’’ Public Statute
Laws of the State of Connecticut (1808) tit. I, § 4, p. 24.
The phrase ‘‘and good behaviour in the mean time’’;
(emphasis added); indicates that, consistent with our
conclusion in Ayala, courts had the authority to ensure
a defendant’s good behavior while he was released on
bail prior to his appearance in court. This language
further suggests that, even if courts were permitted to
require financial security for that purpose—and it is far
from clear that they were so authorized—they could
do so only to the extent that it was necessary to ensure
the defendant’s good behavior while he was released.
This does not mean that courts were authorized to
circumvent the right to bail by imposing a financial
condition of release as a means of detaining the defen-
dant upon deciding ab initio that he likely would pose
a public safety threat if released.
For similar reasons, statutes authorizing courts to
require sureties of the peace or good behavior do not
support the view that courts may impose a monetary
bond as a means of detaining a defendant prior to trial
solely on the basis of the court’s belief that the defen-
dant would pose a danger to the public if released.
These so-called ‘‘peace bond’’ statutes authorized jus-
tices of the peace—and now authorize judges of the
Superior Court—upon finding that a person posed a
specific and imminent threat, to order that person to
refrain from engaging in the threatened conduct during
a defined period of time and to provide financial secu-
rity that may be forfeited upon his failure to refrain
from such conduct in accordance with the order. See,
e.g., General Statutes § 54-56f (authorizing Superior
Court judge to require ‘‘sureties of the peace and good
behavior’’ from any person who ‘‘threatens to beat or
kill another . . . or . . . terrifies or disturbs any per-
son,’’ or when court finds that ‘‘[a complainant] has just
cause to fear that another will imprison, beat or kill
[him]’’); Public Statute Laws of the State of Connecticut
(1821) tit. 21, § 36, p. 147 (authorizing justice of peace
to require ‘‘sureties of the peace and good behavior’’
from any person who ‘‘threaten[s] to beat or kill
another,’’ or ‘‘terrif[ies] and disturb[s] the good people
of the state,’’ or when ‘‘[a complainant] has just cause
to fear that [another person] will imprison, beat, or kill
[the complainant]’’). Although case law regarding peace
bond statutes is sparse, it is apparent that the purpose
of the bond is to ensure the good behavior of the princi-
pal by imposing a financial penalty on him for failing to
keep the peace. Moreover, although peace bond statutes
have long granted judges the authority to commit a
person to jail for failing to provide the required security,
it appears that the period of detention was limited to
the next session of the court having jurisdiction over
the matter, at which time the court would make further
orders regarding the bond. See Public Statute Laws
of the State of Connecticut (1821) tit. 21, § 36, p. 148
(providing that justice of peace may commit person
who fails to pay bond to jail ‘‘until he shall be discharged
by due course of law, or until the next session of the
county court, in said county; which court may make
further order, relating to the subject matter of the com-
plaint’’). In contrast to the use of bail to incarcerate
a defendant for the duration of his case, there is no
indication that peace bond statutes authorized courts
to detain a person for any extended period of time, in
order to prevent him from committing future crimes,
by setting the bond in an amount that the person could
not pay.24
Moreover, despite this court’s past description of
peace bond statutes as ‘‘criminal in . . . nature’’; In re
Bion, 59 Conn. 372, 383, 20 A. 662 (1890); that character-
ization is somewhat misleading. Peace bond statutes
plainly do not define a criminal offense, as they autho-
rize courts to order a person to provide sureties of the
peace and good behavior regardless of whether the
person is charged with a crime. Thus, whereas bail
was used as a means of ensuring the appearance of a
defendant charged with the commission of a criminal
offense, peace bonds were a limited mechanism used
only when there were grounds to believe that a person
posed a specific threat of future harm in that they
imposed a risk of financial loss if the person failed to
keep the peace for the duration of the bond.25 Because
peace bond proceedings always have been distinct from
the process of setting bail in criminal cases, the exis-
tence of peace bond statutes at the time of the enact-
ment of the 1818 constitution says little about whether
a court setting bail for a person charged with a criminal
offense could require a monetary bond on the basis of
its belief that the defendant posed a threat to public
safety.26
Finally, even if the existence of the peace bond stat-
ute had some arguable relevance to the meaning or
scope of the right to bail under article first, § 8, it hardly
provides sufficient support for the conclusion that a
trial court may set bail solely for the purpose of ensuring
that a defendant remains preventively detained pending
trial due to future dangerousness. Because it has long
been understood that the purpose of bail is to ensure
the court appearance of a person charged with a crime,
whereas the purpose of a peace bond is merely to pro-
vide a financial incentive for one who is not accused
of a crime to refrain from future misconduct, the exis-
tence of the peace bond statute is a slender reed on
which to rest the conclusion that preventive deten-
tion—which until today has never been endorsed by
this or any other court of this state—is authorized under
our constitution.
I emphasize that I am not unmindful of or unsympa-
thetic to the concerns expressed by the trial court and
the state regarding the need to protect the public from
dangerous individuals. When a defendant who is not a
flight risk is found to pose a particular threat to public
safety, and when, in light of available resources, that
threat can be addressed most readily by pretrial incar-
ceration, it may seem reasonable for the court to effec-
tively deny bail by setting a monetary bond that the
defendant cannot meet and to order the defendant
detained pending trial. Our law, however, provides
other mechanisms—mechanisms that do not run afoul
of the constitution—that courts may use to protect the
safety of the public when confronted with a potentially
violent defendant. For example, as this court concluded
in Ayala, courts have the authority to impose nonfinan-
cial conditions of release and to revoke bail if a defen-
dant fails to comply with those conditions. See State
v. Ayala, supra, 222 Conn. 347–52. Indeed, it appears
that the trial court in the present case, following the
appropriate procedures, could have revoked the defen-
dant’s bail for his commission of a crime in violation
of the conditions of his release. See General Statutes
§ 54-64f. Moreover, if the people of Connecticut believe
that courts should have the authority to effectively deny
bail solely to protect public safety, they may wish to
follow the lessons of other states and to amend the
constitution to reflect that view. See footnote 17 of this
opinion. As our constitutional history demonstrates,
however, the right to bail guaranteed by article first,
§ 8, simply does not allow a court to order a defendant
detained prior to conviction, whether by refusal to set
bail or by the imposition of an excessive monetary bond,
based exclusively on the likelihood that the accused
will commit further crimes if released. Because the trial
court in the present case imposed a bond for the sole
purpose of ensuring that the defendant, who is undis-
putedly not a flight risk, would be removed from Whit-
ing and incarcerated pending trial because of his
perceived dangerousness, he was denied his constitu-
tionally protected right to bail. Accordingly, I respect-
fully dissent.
1
Article first, § 8, of the constitution of Connecticut provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall have a right . . . to
be released on bail upon sufficient security, except in capital offenses, where
the proof is evident or the presumption great . . . .’’
2
General Statutes § 54-64f provides: ‘‘(a) Upon application by the prosecut-
ing authority alleging that a defendant has violated the conditions of the
defendant’s release, the court may, if probable cause is found, order that
the defendant appear in court for an evidentiary hearing upon such allega-
tions. An order to appear shall be served upon the defendant by any law
enforcement officer delivering a copy to the defendant personally, or by
leaving it at the defendant’s usual place of abode with a person of suitable
age and discretion then residing therein, or mailing it by registered or certi-
fied mail to the last-known address of the defendant.
‘‘(b) If the court, after an evidentiary hearing at which hearsay or secondary
evidence shall be admissible, finds by clear and convincing evidence that
the defendant has violated reasonable conditions imposed on the defendant’s
release it may impose different or additional conditions upon the defendant’s
release. If the defendant is on release with respect to an offense for which
a term of imprisonment of ten or more years may be imposed and the court,
after an evidentiary hearing at which hearsay or secondary evidence shall
be admissible, finds by clear and convincing evidence that the defendant
has violated reasonable conditions of the defendant’s release and that the
safety of any other person is endangered while the defendant is on release,
it may revoke such release.
‘‘(c) If the defendant is on release with respect to an offense for which
a term of imprisonment of ten or more years may be imposed and the court,
after an evidentiary hearing at which hearsay or secondary evidence shall
be admissible, finds by clear and convincing evidence that the safety of any
other person is endangered while the defendant is on release and that there
is probable cause to believe that the defendant has committed a federal,
state or local crime while on release, there shall be a rebuttable presumption
that the defendant’s release should be revoked.
‘‘(d) The revocation of a defendant’s release pursuant to this section
shall cause any bond posted in the criminal proceeding to be automatically
terminated and the surety to be released.’’
3
Prior to the incident for which the defendant was charged in the present
case, the defendant had been charged with assault of public safety personnel
in violation of General Statutes § 53a-167c (a), a class C felony, which is
punishable by a term of one to ten years imprisonment. See General Statutes
§§ 53a-35a (7) and 53a-167c (b). On May 27, 2014, the court ordered the
defendant released on a promise to appear in that case. The state alleged
that the defendant had committed the most recent assault on August 25,
2014, at which time he was on release with respect to the previous felony
assault, thus making him subject to the revocation provisions set forth in
§ 54-64f.
4
According to the majority, preventive detention is properly defined as
detention without bail. See footnote 32 of the majority opinion. Of course,
as the majority acknowledges, detention without bail is prohibited by article
first, § 8, of the Connecticut constitution except in certain capital cases.
The majority’s conception of preventive detention as detention without bail,
however, is too limited. In the present case, it is undisputed that the trial
court intentionally set a bond that far exceeded an amount that the defendant
could pay solely to ensure that he would be incarcerated in advance of trial
due to his perceived dangerousness. Thus, despite the majority’s apparent
reluctance to acknowledge it, the defendant has been preventively detained:
he remains incarcerated, unable to post a bond that was purposefully set
by the court in an amount far greater than he could pay, solely on account
of his perceived dangerousness.
5
I therefore do not reach the defendant’s due process claim.
6
See, e.g., United States v. Melendez-Carrion, 790 F.2d 984, 988, 1004 (2d
Cir.), cert. dismissed, 479 U.S. 978, 107 S. Ct. 562, 93 L. Ed. 2d 568 (1986).
See generally L. Tribe, ‘‘An Ounce of Detention: Preventive Justice in the
World of John Mitchell,’’ 56 Va. L. Rev. 371 (1970).
7
The court in Salerno also held that preventive detention pursuant to the
Bail Reform Act of 1984 did not violate the substantive component of the
due process clause of the fifth amendment. See United States v. Salerno,
supra, 481 U.S. 746, 752. The court concluded that, because of the significant
procedural protections required before bail could be denied on public safety
grounds—including that the government must prove by clear and convincing
evidence that no conditions of release would ensure the safety of the public—
the Bail Reform Act of 1984 was sufficiently narrowly tailored to further
the government’s compelling interest in preventing crime by arrestees
released on bail. See id., 749–51.
8
Practice Book § 38-4 similarly requires the court to consider the safety
of other persons when setting conditions of release in certain cases; see
Practice Book § 38-4 (a); and authorizes the court to consider the likelihood
that the defendant will commit another crime if released when setting such
conditions. See Practice Book § 38-4 (b) (10).
9
The defendant further argues that, to the extent that § 54-64a (b) autho-
rizes the court to set a monetary bond in order to protect the safety of other
persons, the trial court only may consider such concerns when the defendant
poses a risk to the safety of others in a manner that affects the integrity of
the judicial process. I note that, as a matter of statutory interpretation, it
is by no means clear that the legislature intended for § 54-64a (b) to authorize
the imposition of a monetary bond solely on the basis of concerns that a
defendant poses a general threat to public safety and not to ensure his
appearance or the integrity of the proceedings. In the trial court, the defen-
dant challenged that court’s authority under § 54-64a to detain him solely
on the ground that he posed a danger to Whiting staff and patients, but he
appears to have limited his claim on appeal to the contention that the trial
court’s application of § 54-64a in this case violated article first, § 8, of the
Connecticut constitution. Thus, although the parties have addressed the
meaning of § 54-64a (b) in the context of the defendant’s constitutional
challenge, they have not briefed the issue of whether the trial court’s imposi-
tion of a monetary bond violated the statute itself. I believe that supplemental
briefing by the parties on this issue is warranted. Because, however, the
majority considers only whether the imposition of a monetary bond in this
case violated the defendant’s state constitutional rights, I also limit my
review to that claim.
10
Article first, § 14, of the Connecticut constitution of 1818 provides in
relevant part: ‘‘All prisoners shall, before conviction, be bailable by sufficient
sureties, except for capital offences, where the proof is evident, or the
presumption great . . . .’’
11
As we noted in Ayala, the statutory declaration of rights ‘‘had constitu-
tional overtones even though it was statutory in form. State v. Lamme, [216
Conn. 172, 179, 579 A.2d 484 (1990)]; see also C. Collier, [‘The Connecticut
Declaration of Rights Before the Constitution of 1818: A Victim of Revolution-
ary Redefinition,’ 15 Conn. L. Rev. 87, 94 (1982)] . . . .’’ (Citation omitted;
internal quotation marks omitted.) State v. Ayala, supra, 222 Conn. 350.
12
In the quoted language in Ayala, the year 1949 rather than 1849 appears.
As the majority notes, this court mistakenly identified 1949 as the year
in which the legislature added statutory language conditioning bail on a
defendant’s appearance. See footnote 25 of the majority opinion, citing
Revised Statutes of the State of Connecticut (1849) tit. VI, c. XII, § 163, pp.
259–60. In light of the court’s previous statement in Ayala that ‘‘[l]egislative
references to either purpose were eliminated from statutes enacted after
1818 and before 1849’’; State v. Ayala, supra, 222 Conn. 351; it is likely that
we meant to refer to 1849 as the year in which the legislature added statutory
language conditioning bail on the defendant’s appearance. As I explain
hereinafter, however, my review of the statutory history indicates that provi-
sions governing the administration of bail in Connecticut have conditioned
bail in criminal cases on the defendant’s appearance in court since at
least 1784.
13
To the extent that we suggested in Ayala that the framers of the 1818
constitution intended the right to bail contained in article first, § 14, of the
1818 constitution to be coextensive with the provision contained in the
preconstitutional declaration of rights; see State v. Ayala, supra, 222 Conn.
350–51; a comparison of the text of the two provisions plainly reveals that
the provision adopted in the 1818 constitution provides broader protection
than its preconstitutional counterpart. A preconstitutional statute provided
that a person could not be detained prior to conviction unless ‘‘some express
Law doth allow of, or order the same’’; An Act containing an Abstract and
Declaration of the Rights and Privileges of the People of this State, and
securing the same, ¶ 4, reprinted in Acts and Laws of the State of Connecticut,
in America (1796) p. 22; which essentially restricted the discretion of courts
to deny bail in a given case unless it was expressly authorized, but left
the legislature free to limit the cases in which bail was allowed. Another
preconstitutional statute limited the right to bail for persons charged with
treason, providing that such persons could not be admitted to bail by any
authority other than the court having jurisdiction over the cause. An Act
for the punishment of High-Treason, and other atrocious Crimes against the
State, ¶ 3 (enacted in October, 1776), reprinted in Acts and Laws of the State
of Connecticut, in America, supra, p. 420. The 1818 constitution contained no
such limitation, providing for bail as a matter of right in all criminal cases
not falling within the stated exception. See Conn. Const. (1818), art. I, § 14
(‘‘[a]ll prisoners shall . . . be bailable by sufficient sureties, except for
capital offences, where the proof is evident, or the presumption great’’
[emphasis added]). This expansion of the right to bail in criminal cases may
be traced to a statute enacted in 1808, which provided that ‘‘all prisoners
detained in gaol for trial, for an offence not capital, shall be entitled to bail;
to be taken by one or more of the judges of the court, having cognizance
of the offence.’’ Public Statute Laws of the State of Connecticut (1808) tit.
XVII, c. II, § 1, p. 69. Contrary to our suggestion in Ayala, the fact that article
first, § 14, of the 1818 Connecticut constitution more closely resembles the
right to bail as expressed in the 1808 statute suggests that the framers
intended the right to bail to include protections that had developed after
the enactment of the provision contained in the 1750 revision of the statutory
declaration of rights.
This understanding is consistent with the circumstances surrounding the
adoption of the 1818 constitution. Although we acknowledged in Ayala that
‘‘[t]he constitution adopted in 1818 did not create a government but gave
to that which had already been established the sanction of the people and,
in very general language, formulated its framework’’; (internal quotation
marks omitted) State v. Ayala, supra, 222 Conn. 351; we did so in suggesting
that, in the absence of some express indication to the contrary, the framers
of the 1818 constitution intended to incorporate the same understanding of
the right to bail as that expressed in the 1750 statutory declaration of rights.
As I explained, however, the meaning of the bail provisions contained in
the 1818 constitution can be understood only upon review of the relevant
statutory and case law leading up to and culminating in the adoption of the
1818 constitution.
14
Significantly, as a result of the 1967 legislation; see Public Acts 1967,
No. 549, § 12 (P.A. 549); the General Statutes authorized courts to deny
bail and order a defendant detained but expressly limited that authority to
circumstances in which the court found ‘‘custody . . . to be necessary to
provide reasonable assurance of his appearance in court . . . .’’ (Emphasis
added.) P.A. 549, § 12, codified at General Statutes (Rev. to 1968) § 54-64a.
This was the only time in our history that the General Statutes authorized
the denial of bail other than in capital offenses, and the language was
repealed in 1977. See Public Acts 1977, No. 77-452, § 39.
15
See Conn. Code Evid. § 8-3 (1) (B); see also State v. Pierre, 277 Conn.
42, 72, 890 A.2d 474 (‘‘[w]hen a party’s conduct indicates that the party
assents to or adopts a statement made by another person, the statement is
admissible against the party’’ [internal quotation marks omitted]), cert.
denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).
16
Mississippi adopted its current constitution in 1890. At the time Dennis
and Royalty were decided, article III, § 29, of the Mississippi constitution
of 1890 provided: ‘‘Excessive bail shall not be required; and all persons
shall, before conviction, be bailable by sufficient sureties, except for capital
offenses when the proof is evident or presumption great.’’ A subsequent
amendment in 1995 to article III, § 29, of the Mississippi constitution of 1890
allows courts to deny bail for serious felonies provided the defendant is
afforded certain procedural protections. See 1995 Miss. Laws c. 636.
17
The fact that In re Underwood, Truesdale and Pray were abrogated by
constitutional amendment in no way undermines their persuasive force.
Indeed, several states that had right to bail provisions similar to article first,
§ 8, amended their constitutions to provide that courts may deny bail if
necessary to protect public safety. See M. Mann, supra, 24 Conn. L. Rev.
963 and nn.246–47 (listing such states and noting that ‘‘[t]his evidences not
only recognition of pretrial detention as unconstitutional under provisions
granting release in noncapital cases, but also that some of those states
viewed the constitutional right to bail as precluding a public safety consider-
ation’’); see also, e.g., Mo. Const., art. I, § 32 (2) (adopted in 1992). That
these states saw the need to amend their constitutions before allowing
preventive detention lends further support to the conclusion that article
first, § 8, does not permit courts to deny bail on the ground that the accused
poses a danger to others.
18
See Ill. Const. (1870), art. II, § 7 (‘‘[a]ll persons shall be bailable by
sufficient sureties, except for capital offenses, where the proof is evident
or the presumption great’’).
19
The Illinois Supreme Court subsequently concluded that the denial of
bail when it is ‘‘necessary to prevent fulfillment of the threat [on] which
the charge is based’’ does not violate the state constitutional right to bail.
People v. Bailey, 167 Ill. 2d 210, 240, 657 N.E.2d 953 (1995).
20
Article II, § 24, of the Missouri constitution of 1875 provides in relevant
part: ‘‘[A]ll persons shall be bailable by sufficient sureties, except for capital
offenses, when the proof is evident or the presumption great.’’
21
Article II, § 25, of the Missouri constitution of 1875 provides in relevant
part: ‘‘[E]xcessive bail shall not be required . . . .’’
 22
Significantly, even after Missouri amended its constitution in 1992 to
provide that bail may be denied ‘‘upon a showing that the defendant poses
a danger to a crime victim, the community, or any other person’’; Mo. Const.,
art. I, § 32 (2); the Supreme Court of Missouri nevertheless concluded that
this provision, while authorizing courts to deny bail when the requisite
showing is made, does not ‘‘permit [the] use of bail to keep a defendant
from being released.’’ State v. Jackson, 384 S.W.3d 208, 215 (Mo. 2012).
23
The Supreme Judicial Court of Massachusetts also has concluded that
setting a monetary bond that a defendant cannot post, on the basis of his
perceived dangerousness, constitutes preventive detention, and, pursuant
to Salerno, a statutory scheme that allows courts to set bond for that purpose
without providing sufficient procedural protections violates the due process
clause of the fourteenth amendment. See Aime v. Commonwealth, 414 Mass.
667, 680, 611 N.E.2d 204 (1993); see also footnote 7 of this opinion. The
Massachusetts constitution, unlike our own, does not expressly guarantee
the right to bail, but only provides that excessive bail may not be required.
See Mass. Const., pt. 1, art. XXVI. A previous iteration of that state’s statutory
bail provisions required courts to refuse to release a defendant without
surety, and, instead, to require a bond with surety, if it found the defendant
posed a danger to the community. Aime v. Commonwealth, supra, 670. The
court rejected the commonwealth’s argument that the statutory scheme did
not purport to establish a system of preventive detention because, even
though it did not expressly provide for the denial of bail, it nevertheless
‘‘accomplish[ed] this goal through the use of the surety [that] an arrestee
must post in order to be admitted to bail.’’ Id., 676. The court concluded that,
pursuant to Salerno, the bail provisions in question violated the fourteenth
amendment because ‘‘[a] [s]tate may not enact [preventive] detention
schemes without providing safeguards similar to those which Congress
incorporated into the Bail Reform Act [of 1984].’’ Id., 680. The Massachusetts
legislature subsequently enacted a scheme similar to the federal Bail Reform
Act of 1984, which the court upheld in Mendoza v. Commonwealth, 423
Mass. 771, 773, 673 N.E.2d 22 (1996).
24
I therefore disagree with the majority that there is no difference, for
constitutional purposes, between the limited detention authorized under
the peace bond statutes and the use of bail to detain a defendant, on the
ground that he poses a danger to others, from his arrest until trial.
25
This is not to say that there would be no constitutional objection to
detaining a person for failing to post a peace bond. In fact, several courts
in our sister states have concluded, on various grounds, that it is unconstitu-
tional to detain a person who is unable to post a monetary bond set in a
peace bond proceeding. See, e.g., Ex parte James, 53 Ala. App. 632, 644,
303 So. 2d 133 (incarceration of indigent petitioner by virtue of his inability
to post peace bond violated equal protection clause of fourteenth amend-
ment to United States constitution), cert. quashed, 293 Ala. 759, 303 So. 2d
145 (Crim. 1974); Santos v. Nahiwa, 53 Haw. 40, 42, 487 P.2d 283 (1971)
(incarceration of indigent petitioner by virtue of his inability to post peace
bond violated equal protection of laws and petitioner’s substantive due
process rights because statutory scheme failed to require proof of guilt
beyond reasonable doubt); Kolvek v. Napple, 158 W. Va. 568, 575, 212 S.E.2d
614 (1975) (incarceration of indigent person based on his inability to post
peace bond violated equal protection clause of fourteenth amendment to
United States constitution); see also State v. Weller, 152 Vt. 8, 15–16, 563
A.2d 1318 (1989) (expressing concern that peace bond was imposed ‘‘as a
form of bail for preventive incarceration’’ but declining to reach constitu-
tional issues after concluding that court imposed peace bond without
affording defendant process required by statute).
26
I disagree with the majority’s contention that sureties of the peace ‘‘are
not truly separate and apart’’ from bail. Footnote 28 of the majority opinion.
That the sureties of the peace statute eventually was included within the
same chapter of the General Statutes as the provisions governing the adminis-
tration of bail provides scant support for the contention such sureties were
considered to be a form of bail at the time of the 1818 constitution. In
fact, in the first revision of the statutes following the adoption of the 1818
constitution, the statute providing for sureties of the peace was included
within the title setting forth the powers and duties of the courts; see Public
Statute Laws of the State of Connecticut (1821) tit. 21, § 36, pp. 147–48;
whereas the statutes governing bail were included within the title that
defined crimes and regulated criminal procedure. See Public Statute Laws
of the State of Connecticut (1821) tit. 22, §§ 97, 99 and 100, pp. 171–72. The
sureties of the peace statute was not transferred to the title dealing with
criminal procedure until the 1839 statutory revision. See Public Statute Laws
of the State of Connecticut (1839) tit. XX, c. I, § 124, pp. 172–73. Consistent
with this view, authorities on this issue have stated that sureties of the
peace are not a form of bail but, rather, a special, limited procedure for
preventing a person who appears to pose a specific threat of future harm
from carrying out that threat. See L. Tribe, supra, 56 Va. L. Rev. 406 (noting
availability of sureties of peace for ‘‘those who threaten specific crimes,
either verbally or by repeated efforts’’ and that such persons ‘‘present a
separate problem unrelated to the pendency of a criminal charge and [do]
not [require] sweeping governmental authority to detain for generalized
dangerousness’’); S. Childress, ‘‘Peace Bonds—Ancient Anachronisms or
Viable Crime Prevention Devices?,’’ 21 Am. J. Crim. L. 407, 414 (1994) (observ-
ing that most courts that have addressed issue have concluded that peace
bond proceedings are not criminal proceedings).