Northwest Arkansas Democrat-Gazette

Cash-only bail legal, high court rules

- SPENCER WILLEMS

The Arkansas Supreme Court on Thursday ruled people charged with crimes can be held in jail on a large, cash-only bail amount. Dissenting justices argued such a rule was unconstitu­tional and adversely affected the poor.

They even invoked the poetry of the Man in Black and his time in the Starkville city jail.

In a 5-2 decision, the state’s high bench ruled a Benton County circuit judge was right to set a $300,000 cash-only bail for a man facing several assault and battery crimes because such a bail requiremen­t is in keeping with those prescribed in the state constituti­on.

In a four-page dissent, Justice Jo Hart said the majority got lost in whether the defendant, Ramon Trujillo, now serving a 10-year sentence, “deserved” a cash-only bail.

Deserving or not, Hart wrote, the majority’s ruling was “in contravent­ion of the Arkansas Constituti­on” and “takes from the people the fundamenta­l, absolute right

to reasonable bail before conviction.”

Chief Justice Howard Brill dedicated the first page of his dissent to six stanzas of Johnny Cash’s “Starkville City Jail,” a tale of the Arkansas native’s arrest in Mississipp­i and subsequent overnight incarcerat­ion without any court or bail being offered.

Brill — a Cash enthusiast who has taught continuing legal education courses titled Law from the Life and Music of Johnny Cash — said a cash-only bail has benefits and disadvanta­ges but, regardless of policy, it violates the rights of defendants expressed in the constituti­on.

“After being arrested for trespassin­g and picking flowers, Johnny Cash spent the night in the Starkville City Jail,” the justice wrote. “His ballad suggests that he was not taken before a magistrate or given the opportunit­y to be

released on bail.”

Lyrics from Cash’s song include: “The sergeant put me in a cell, then he went home for the night; I said: “Come back here, you so and so; I ain’t bein’ treated right.”

The case began after Trujillo’s arrest, and eventual conviction, for second-degree battery after beating his 35-weeks-pregnant girlfriend and her infant son.

After his June 1 arrest, Trujillo was released from jail on a $25,000 bond but returned to jail after he violated the court’s “no contact” order.

In July, Judge Robin Green set Trujillo’s bail at “$300,000 cash,” with no option for a surety bond. Trujillo objected and in September the Supreme Court agreed to review the court’s ruling.

State attorneys argued Trujillo’s case was moot because by November, he pleaded guilty. Though the justices agreed the appeal of Green’s order was moot, they agreed, as a matter of policy that can affect other similarly situated defendants, they should consider the appeal.

Article 2, Section 8 of the Arkansas Constituti­on states “all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumptio­n great.”

Trujillo contended “cash-only” runs contrary to the “sufficient sureties” language while state attorneys argued cash can be counted as such.

In the majority’s opinion, Justice Karen Baker notes states are divided on the cash-only question and conceded a case in the Washington Supreme Court found “surety contemplat­es a third-party arrangemen­t” and cash-only requiremen­ts were unconstitu­tional.

But Baker said the majority

agreed with the reasoning used in a 2015 Wyoming Supreme Court ruling that found bail existed as a means to ensure a defendant would return for trial and the “sufficient sureties” language in the constituti­on includes a “broad range of methods” including cash.

Brill wrote nationwide the intent of constituti­onal protection­s for bail have routinely allowed for “surety” or some form of property other than cash to be used as collateral for a defendant’s release from custody.

The Arkansas Constituti­on, contrary to the majority opinion, is no different, he wrote.

“Cash-only bail may have definite advantages … on the other hand, cash-only bail has drawbacks. It may have an unfair, even disparate impact, upon lower income defendants without resources. Cash-only bail, particular­ly in

larger amounts, may be used punitively,” Brill wrote. “Requiring cash-only bail strips a person of his constituti­onal right to provide any sufficient surety for his release.”

Hart argued the majority’s ruling will hurt the state’s most vulnerable.

“By affirming the imposition of cash-only bails, the majority creates and grants to the government an absolute right to incarcerat­e until the time of trial an accused who is not affluent,” she wrote.

“This decision will disproport­ionally impact the poor, as well as those whose wealth is invested and do not have readily at their disposal large sums of cash.”

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