MONTPELIER, Vt. (AP) – A law passed by the Legislature in 2002, allowing judges to impose “cash-only” bail on some defendants, violates the state Constitution, the Vermont Supreme Court ruled Friday.

The court said that defendants in cases where bail is allowed must be permitted to provide a “surety” – essentially a promise backed with money by a family member, friend or bail bondsman – that they will appear for their trial.

In a case arising from Rutland County, the high court said Vermont District Court Judge Patricia Zimmerman ruled improperly when she imposed $60,000 cash bail on Henry J. Hance Jr.

Hance had been arrested on a felony charge of driving while intoxicated, eighth offense, possession of cocaine and driving while his license was suspended. He fled to South Carolina before his arraignment date, the high court said.

After five months on the lam, Hance was arrested in South Carolina, returned to Vermont and arraigned on the charges May 11.

At the arraignment, Zimmerman said there was “ample evidence” that Hance might run again. She said he could make bail only by producing $60,000 in cash. The ruling came after Hance’s mother said she could put up the more commonly imposed 10 percent cash, or $6,000, and offer her property as guarantee, the justices said.

Judges can deny bail to someone charged with a crime that carries a possible life sentence and where evidence of guilt is great; they also can do so when there is strong evidence that the defendant would commit violence if released.

But in other cases, the justices said, “our Constitution makes clear that a defendant, who is after all presumed innocent, has liberty interests that must be balanced against the court’s interest in securing his or her appearance.”

The justices noted that the judge was careful to say that she was setting cash bail for Hance only to ensure that he would not skip bail again.

The court’s decision quoted Zimmerman as saying, “bail is not being imposed to ensure your incarceration, Mr. Hance. It is being imposed to assure your appearance.”

But the justices, in a decision written by Associate Justice Marilyn Skoglund, found that Zimmerman – and the Legislature – erred when they neglected language from the Vermont Constitution, which says that “all persons shall be bailable by sufficient sureties.”

“The distinction between a secured appearance and cash-only bail is significant from the standpoint of a defendant’s liberty interests,” the court said. It added that “when a court requires only a secured appearance bond, a defendant can avoid pre-trial confinement without posting cash or by posting a small percentage of the bail amount.”

AP-ES-09-08-06 1525EDT

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