Bond in criminal domestic violence cases (RTFM)

We’ve had a few cases lately where a magistrate or municipal court judge has denied bond on CDV charges. It happens before we get involved in the case, because the bond hearing is usually held the day of or the day after the arrest, before we are retained. It happens when the alleged victim appears in court and tells the judge that they fear for their life and that the defendant is a violent person (victims are often coached on what to say by victim advocates and police officers before the hearing). When I get a case where this has happened, usually I’ll file a motion to reconsider bond first, and if that is denied by the lower court judge we have to go to a circuit court judge to get our client released.
I’ve been meaning to blog about this for a while, because it is happening fairly often and it is wrong. To deny bond on a misdemeanor charge in the municipal or magistrate court is in violation of the South Carolina Constitution and it is in violation of South Carolina’s bond statutes. Judges are not advocates. They are not there to please victims, police, prosecutors, or defendants. They are sworn to uphold the Constitution and laws of our State and to be a neutral arbiter.
Regardless of the truth or falsity of the alleged victim’s claim that they fear for their life, a magistrate or municipal court judge cannot deny bond for criminal domestic violence first offense:
1. Except under some limited circumstances which are outlined in the Constitution and the bond statutes, a defendant is entitled to a reasonable bond to ensure his appearance in Court. Bond is not intended to punish a person before they have been convicted.
2. Article I, Section 15 of the South Carolina Constitution mandates that a defendant must be released on his own recognizance (not required to pay a bond at all) except when charged with a capital crime (punishable by the death penalty) or when charged with a statutory violent offense (violent crimes are listed in S.C. Code Section 16-1-60, and everything that is not listed in 16-1-60 is a non-violent crime), after considering the nature and circumstances of the event.
3. Section 17-15-10 states that a defendant charged with a non-capital offense shall be released on their own recognizance without surety unless the Court makes an explicit finding of fact that justifies a surety bond.
4. Section 17-15-10 lists conditions of release that may be imposed on a defendant when the Court makes a determination that a personal recognizance will not ensure the defendant’s appearance in court or that the defendant poses an unreasonable danger to the community; however the Court is not authorized to deny bond on a non-capital, non-violent offense.
5. Section 22-5-530 provides that a person charged and to be tried before a magistrate or municipal judge is entitled to deposit with the magistrate or municipal judge bond in an amount not to exceed the maximum fine in the case for which the person is to be tried.
6. Section 22-5-530 further states that an individualized hearing must be held when a person is charged with criminal domestic violence and that the victim of the offense must be notified; however, it does not authorize the Court to impose bond in an amount greater than the maximum potential fine and it does not authorize the Court to deny bond for criminal domestic violence first offense.
7. Section 16-25-120 provides additional factors that the Court may consider when setting bond for a person charged with criminal domestic violence, provides that the Court may issue a restraining order or order of protection in appropriate cases, and requires that the Court inform the defendant in writing of his right to counsel including court-appointed counsel; however this section does not authorize the Court to impose bond in an amount greater than the maximum potential fine and it does not authorize the Court to deny bond for criminal domestic violence first offense.
This post is for South Carolina attorneys, and judges if any are reading. If you are representing someone charged with CDV and their bond was denied, do not advise them to plead guilty to get them out of jail. It is not a great leap to suspect that bond is being denied in order to force a guilty plea out of the defendant, and if you advise that client to plead to the CDV just to get out of jail you are part of the problem. File a motion to reconsider bond, copy and paste the code sections above into your motion, and if the motion is denied file a writ of habeas in the Circuit Court. If you can get a hearing faster in the Circuit Court, forget the motion to reconsider and file the writ in Circuit Court.

3 Responses to “Bond in criminal domestic violence cases (RTFM)

  • Rick Wilson
    9 years ago

    Minnesota needs to look at the law on what can and canot be charged for a person to bond out of jail.Domestic abuse has a maximum bond of ten thousand dollars.Because of a comment i made to my daughter and she relayed it to her mom and great coaching from her attorney prior to going to the police for the comment i made. The courts issued a fifty thousand dollar bond on me.I could see it if i stated any type of death threat or bodily harm but i didnt.

  • Admittedly there are some people who use the court system and the police as a means of revenge to get back at an ex spouse during divorce or court battles, but there are more victims who are truly terrified of said ex spouse and the first police report doesn’t usually get filed until after something drastic has already happened. The majority of women who have the courage to go to court and say that they are in fear of their lives are not just saying it because someone coached them. They are truly afraid this person will kill them. Until your sister or you mother, or you yourself has been a victim you will have no idea of how frightening it is to have a person who has repeatedly threatened your life walking around on the streets free.

  • I won’t dispute that there are many cases of true domestic violence. But I have handled hundreds of these cases in the last six years, and, in the cases that I have handled many of the women were not abused, and many of the cases where there was a fight it was mutual and alcohol was involved.
    I have had family members and others close to me that have been victims of domestic violence. Ironically, those cases never made it to court.
    Prosecutors or victim’s advocates for the police department do coach alleged victims to say “I fear for my life” at the bond hearing.
    If you have been a victim of domestic violence you need to understand I do not intend to minimize your experience in any way.
    And – let’s not forget the point of this blog post, which is that the law is clear as to what bond can and cannot be set for a CDV 1st offense, and there are judges who are violating the law.

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