Alabama Legislature

Bills That Would Deny Bail for Violent Offenders Face Constitutionality Questions

Visitors watch from the viewing gallery as the Alabama State Senate meets. (Source: Alabama State Senate)

MONTGOMERY — Bills to deny bail for those accused of violent crimes were discussed in House and Senate committees Wednesday but did not advance.

In the Senate, a constitutional amendment by Sen. Cam Ward, R-Alabaster, would automatically deny bail for six specific violent offenses: murder, first-degree rape, first-degree sodomy, kidnapping, sexual abuse or sexual torture and human trafficking. The bill is being considered in the Senate Judiciary Committee, where Ward is chairman.

Auburn Chief of Police Paul Register spoke in support of Ward’s bill and pointed to the recent case of Aniah Blanchard, a college student who was allegedly kidnapped and murdered by Ibraheem Yazeed in October. Yazeed was out on bail from charges of kidnapping, attempted murder, robbery and possession of marijuana when Blanchard was killed.

“Had he not been out, Aniah Blanchard would still be with us today,” Register said.

Alabama’s constitution states that any person can be considered for bail unless they are being accused of a capital offense.

Shay Farley, policy counsel for the Southern Poverty Law Center, told the committee that denying a person’s bail automatically before they’ve been convicted of a crime would be deemed unconstitutional in the courts.

“It is pre-conviction,” Farley said. “It is a pre-determination of a deprivation of liberty without a finding of facts.”

Multiple lawmakers shared Farley’s concerns over the constitutionality of Ward’s bill.

“No matter what we do here, that bill is going to be found unconstitutional,” Sen. Rodger Smitherman, D-Birmingham, said.

Smitherman said he thinks more needs to be done to protect Alabamians, but he also thinks judges need to make those bail denial decisions.

“It should be a lot easier to make those decisions based on some kind of standards that we may be able to set,” Smitherman said.

Farley offered a substitute to Ward’s bill that would allow the state to make a case that a specific defendant should be denied bail because they pose a specific threat to public safety.

“Not a categorical class of people accused of a crime because they match a description or were picked up, but show this specific defendant poses a specific risk to the public’s safety,” Farley said.

But Ward said he was worried that was casting too wide of a net for bail consideration.

“I would like to keep it focused on just those tailored crimes I already listed in the bill,” Ward said.

After hearing the concerns from multiple lawmakers, Ward decided to carry the bill over and have further discussion outside of the committee.

“I think all of us agree on the end result that we want,” Ward said. “I think it’s a question of how we get to it.”

In the House Judiciary Committee, a public hearing was held on a similar measure sponsored by Rep. Chip Brown, R-Mobile. That legislation would deny bail to anyone arrested for a Class A felony.

Brown said the legislation wasn’t a “blanket approach” and would stay within the rights of the Eighth Amendment, which prohibits the use of excessive bail or fines on a person.

“It allows for judicial discretion, which I think is important because it keeps within the Eighth Amendment,” Brown said. “It allows the worst of the worst, for district attorneys to have an opportunity to hold those people who they know are a threat from going back into the community.”

Rep. Randy Wood, R-Anniston, said he doesn’t think Brown’s bill oversteps a person’s right to bail.

“If someone has committed a Class A felony then, No. 1, you’ve got to have reasonable proof before you can even arrest them that they’ve done something violent,” Wood said.

A version of Brown’s bill passed out of the House last year with bipartisan support but ran out of time to go to the Senate.

Committee chair Rep. Jim Hill, R-Odenville, said they would vote on the bill next week.

Each state has its own statute on what qualifies in denying bail. Fourteen states, including Alabama, only have capital offenses as their reason for refusing bail. North Carolina and Maryland are the only states that don’t have an explicit presumption of pretrial bail in their state constitutions or statutes, according to the National Conference of State Legislatures.

If either bill passes the Legislature, it would be put to a vote of the people later this year.