MINOT -- All over the country, impoverished defendants await trial in county lockups for months on end, often because they are unable to afford the bond or the fees assessed as a requirement of their release pending trial.
Local defense attorneys say that is also often the case in North Dakota.
Last week in Minot, a judge decided to revoke the bond of one such defendant, accused heroin dealer Mylin George Wicker, because he has failed to comply with the requirements of Ward County's 24/7 Sobriety Program.
"I do believe, with my client's being indigent, it amounts to a debtor's prison," Wicker's defense attorney, Ashley Gulke, told Judge Gary Lee.
Gulke pointed out to the judge that the testing fees run about $50 a week, or $200 a month – the cost of a car payment for a man who has no income coming in.
Ward County Assistant State's Attorney Caitlyn Pierson, who asked the judge to enforce the requirements of the 24/7 program, asked why Wicker has failed to get a job in the past five months that would help him pay for the testing.
"He mows lawns and trims trees," said Gulke "That is his skill set." During the winter months, she said there is no great demand for lawn mowing or tree trimming, which is why Wicker has not had a job.
If Wicker, who is presumed innocent of the crime, sits in jail for the summer awaiting a trial date in September that will almost certainly be pushed back, she said he will not be able to earn any income to pay required fees.
Lee said it is not his job to legislate from the bench. The State Legislature has mandated that defendants in cases such as these participate in drug testing while they are on bond. Despite Gulke's argument about the heavy burden of testing fees on her indigent client, Lee said he had no other choice but to revoke Wicker's bond.
Rules regarding a defendant's release before trial are laid out in North Dakota Rules of Criminal Procedure Rule 46.
At an initial appearance following the defendant's arrest, according to the rule, "the magistrate must order the person released pending trial on the person's personal recognizance or on execution of an unsecured appearance bond in an amount specified by the magistrate, unless the magistrate determines, in the exercise of the magistrate's discretion, that unconditional release will not reasonably assure the appearance of the person as required."
Over the last year in district court in Minot, it has been rare for a defendant to be released on a personal recognizance bond or an unsecured appearance bond. Instead, a judge might require the execution of an appearance bond, with a requirement that the defendant post 10 percent of that to the court. The money is then returned to the defendant if he or she meets all the requirements of supervision. Alternately, the judge might require that the defendant go through a bondsman or post a cash bond with the court.
If a defendant is unable to post bond within 48 hours, he or she is entitled to a bond reviewal hearing before the judge. At a bond review, a judge might – but will not always – reduce the bond. When the bond is set high, defendants are generally unable to pay it and sit in jail for months.
Accused armed robber Jherik Hess has been held in custody for more than a year on $350,000 bond, since he was arrested for allegedly breaking into a Minot residence on April 8, 2016, tying up a 22-year-old woman and pointing a gun at her, and robbing her. According to court documents, he fled the house with the woman's cell phone, a wallet, several firearms and a digital camera. Hess has not been able to raise the bond in 15 months. He is scheduled to go to trial in August.
At a bond hearing on June 20, defense attorney Raissa Carpenter argued that Hess's bond should be lowered to a percentage bond that would require his family to post 10 percent. If released, Hess planned to live with his family, work in construction and take care of his children.
"Defendants have a right to a reasonable bond," Ward County Assistant State's Attorney Marie Miller told Judge Todd Cresap. "They do not have a right to an obtainable bond."
Carpenter, citing Rule 46, said she disagreed. She said community safety is one of several factors to be considered in granting bond and there are other ways to ensure safety, such as the no contact order in place preventing Hess from contacting alleged victims and a requirement that he undergo drug testing. Hess, like all defendants awaiting trial, is presumed innocent.
Cresap, citing community safety, refused to lower Hess's bond.
Sometimes an unobtainable bail means that a defendant who is ultimately found innocent at trial will have sat in jail for well over a year pending trial. That was the case earlier this year for one man who was found not guilty of the crime of sexually assaulting an 11-year-old girl and who had been held in jail, unable to make bond. During that sometimes lengthy wait for trial, defendants will very likely lose their jobs, their housing and sometimes their children.
Over the past several months, more than one defendant in district court in Minot has begged a local judge to set a lower bond so he or she can make arrangements to pay rent and avoid being evicted or to secure personal belongings so they do not lose everything they own. The pleas – sometimes made by defendants who have a history of drug use or of failing to show up for court appearances – often fall on deaf ears.
Under the state's Rule 46, judges are permitted to set conditions of release, such as the 24/7 testing requirement for Wicker. As a general rule, judges also require defendants on bond to surrender any dangerous weapons in their possession to law enforcement, not to drink alcohol or take illegal drugs. They are often also required to have no contact with alleged victims or witnesses and to stay away from certain locations. They are all required to maintain regular contact with their attorney, to notify the court of any change in address and not to leave the state without permission of the court. They may be required to maintain or seek employment or to follow the recommendations made by medical professionals.
Some other states have either passed or are considering bond reform legislation.
New Jersey's Bail Reform and Speedy Trial Act took effect in January, according to an article at www.dailykos.com. Under the reforms, bail is eliminated for most defendants charged with minor offenses and a risk assessment tool is used to assess whether other defendants should be released before trial. A Jan. 2 story in The Jersey Journal reported that a defendant who had been accused of committing aggravated assault, using a pipe, was released on his own recognizance before trial because the pre-trial assessment deemed him to be low risk of not showing up for court or of committing another crime. Under the old guidelines, the state would have asked for a bond of $20,000 to $50,000 with a requirement that the man post 10 percent.
But in other states where bond reform has been considered, including Texas, bail bondsmen have resisted reform because it would hurt their industry. Others oppose bail reform because they claim it would enable people who have committed violent offenses to get out of jail when they shouldn't.