(dissenting).
I dissent.
Under the bill of rights to our constitution, “[a]ll persons shall, before conviction, be bailable, by sufficient sureties, except for capital offences where the proof is evident, or the presumption great.” Iowa Const, art. I, § 12. This language clearly mandates that those accused of noncapital offenses are bailable. In describing how the accused is bailable, the constitution expressly provides that this shall be “by sufficient sureties.” A requirement of cash bail is not a surety transaction. Our bill of rights was adopted in 1857. Three years prior thereto this court, relying on the current edition of “Webster’s Dictionary,” defined surety as
one who enters into a bond, or recognizance to answer for another’s appearance in court, or for his payment of a debt or for the performance of some act.
Pitkins v. Boyd, 4 Greene 255, 259 (Iowa 1854). A surety transaction is a tripartite arrangement between an obligee, a prinei-pal obligor, and a secondary obligor who vouches for the performance of the primary obligor.8
The majority states that, “if the accused shows that a bail determination absolutely bars their utilization of a surety of some form, a court is constitutionally bound to accommodate the accused’s predicament.” A cash-only bond is a per se denial of the constitutional guarantee to bail “by sufficient sureties.” The majority mistakenly assumes that a surety arrangement may exist by having a third party post the bail. That would not involve a surety relationship and, indeed, is not possible under Iowa law. We have recognized that
there are no provisions for the deposit of money by any person other than the defendant himself — no right of surrender except by the bail or the defendant himself, and when a deposit of money is made, no right of return, except to the defendant. The thought that a third person may furnish the money that defendant is authorized to deposit and af-terwards surrender the defendant and secure a return of the deposit is distinctly negatived.
State v. Owens, 112 Iowa 403, 407, 84 N.W. 529, 530 (Iowa 1900). Although this case was decided under the bail statutes in effect at the time, I submit it is fairly reflective of the understanding of cash bail prevailing at the time the bill of rights was adopted.
The fact that there is a statutory provision for posting cash bond cannot overturn a constitutional provision guaranteeing the right to be bailable by sufficient sureties. Nor does the statute in fact attempt to do that. It provides:
*586[T]he magistrate shall, either in lieu of or in addition to the above methods of release [release on recognizance] impose the first of the following conditions of release which will reasonably assure the appearance of the person for trial ...:
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d. Require the execution of a bail bond with sufficient surety, or the deposit of cash in lieu of bond.
Iowa Code § 811.2 (2001). I submit that the language “in lieu of bond” in this statute is fairly read to mean that cash may be posted in lieu of a surety bond at the election of the person required to post bond. That type of interpretation would be consistent with the constitutional guarantee. The majority’s contribution is inconsistent with the constitutional guarantee.
The majority argues that, because the framers limited bail to the providing of “sufficient sureties,” they carved out a measure of discretion for the person overseeing the bail process. Of course, the person overseeing the bail process must be satisfied with the sufficiency of the surety arrangement. That does not mean, however, that the persons overseeing the bail process may deny the constitutional Cgnt to bail by surety by requiring that bail involve the posting of '•""R
The Supreme Court of Ohio, in interpreting a similar constitutional provision guaranteeing bail by surety, held that
the judge’s discretion is limited to setting the amount of the bond. Once that amount is set, and the accused exercises his constitutional right to list a surety to post bail on his behalf, that being one of the options set forth in [the statute], the clerk of courts must accept a surety bond to secure the defendant’s release, provided the sureties thereon are otherwise sufficient and solvent.
State v. Hendon, 66 Ohio St.3d 115, 609 N.E.2d 541, 543-44 (1993).9 Similarly, the Tennessee court of appeals in interpreting a constitutional provision authorizing bail by sureties stated:
It would strain any method of statutory construction to hold that this language gives the judge discretion to require a particular form of bail. If the judge were held to have discretion to require a cash-only bond, he would also arguably have the power, for instance, to demand that a defendant put up qualifying real estate in order to secure his release. If a particular defendant had no qualifying real estate, such a requirement would effectively detain the accused in violation of article I, section 15 of the Tennessee Constitution ... which provide that “all defendants shall be bailable by sufficient sureties.” The same result could arise if a cash-only deposit was required of a defendant who had real estate or other sufficient surety, but no cash.
Lewis Bail Bond Co. v. Gen. Sessions Ct., No. C-97-62, 1997 WL 711137, at 5 (Tenn.Ct.App.1997). The Tennessee court correctly recognizes that a cash-only bond will in most instances be more onerous to a person seeking bail than the constitutional guarantee of bail by sufficient sureties. The opinion of the majority tacitly concedes that that will be the situation with respect to this defendant.
*587Our constitution guarantees an accused the right to bail “by sufficient sureties.” This is indeed an unfettered right to bail by that means. Demanding a cash-only bail is a clear denial of that right. The order of the district court related to bail should be reversed.
LAVORATO, C.J., and TERNUS, J., join this dissent.
. Every "suretyship” involves three parties: "principal” whose debt or default is subject to the transaction; "obligee,” one to whom debt or obligation runs; and "surety,” one that undertakes to perform debt or obligation if principal does not.
72 C.J.S. Principal & Surety § 2, at 175 (1987).
. The provision of the Ohio Constitution interpreted in this case provided
[a]ll persons shall be bailable by sufficient sureties, except a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evidence or the presumption great and where the person poses a substantial risk of serious physical harm to any person in the community.
Ohio Const, art. I, § 9 (1851).