Priest v. Pearce

840 P.2d 65, 314 Or. 411, 1992 Ore. LEXIS 200

• Court: Oregon Supreme Court
• Decided: October 22, 1992
• Docket: SC S39032
• Status: Published

Opinions

GILLETTE, J.

In this original habeas corpus proceeding, we are called upon to decide whether the right to suitable bail guaranteed by Article I, section 14, of the Oregon Constitution, set out post, is available to a convicted criminal defendant during the pendency of his or her appeal. We hold that the scope of Article I, section 14, does not extend to appeals.

Plaintiff, who is the defendant in an underlying criminal case, pleaded guilty on October 17, 1991, to charges of second and fourth degree assault. By a judgment entered on January 15, 1992, he was sentenced to 20 months in jail. Plaintiff had been released on bail pending trial;¹ he sought release pending resolution of his appeal. The trial court denied bail. Plaintiff then filed with this court petitions for a writ of mandamus and a writ of habeas corpus, both aimed at requiring either the trial court or the Court of Appeals to admit plaintiff to bail. We denied his petition for a writ of mandamus, but issued a writ of habeas corpus, in order to address the important and unresolved question of constitutional law presented by this case.

Article I, section 14, of the Oregon Constitution, provides:

“Offences [sic], except murder, and treason, shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong.”

Plaintiffs argument is simple: Because he “has been found guilty of offenses that are neither treason nor murder in any degree,” he is “entitled to bail as a matter of right under [Article I, section 14],” during the pendency of his appeal. He does not assert that his release must be on his own recognizance; neither does he deny that any release may be conditioned on a wide variety of circumstances. The amount of bail and any conditions that a releasing court might wish to impose as a condition of release are, plaintiff recognizes, matters for the releasing court to consider in its discretion. But plaintiff does assert that he is entitled to have that discretion exercised and to have some level of bail set.

SUB-CONSTITUTIONAL ANALYSIS

As is customary under our methodology, we begin with the pertinent sub-constitutional law. See, e.g., State v. Moylett, 313 Or 540, 545-46, 836 P2d 1329 (1992) (even where a party’s claim of right is based on a constitutional provision, court should first determine whether party’s claim may be satisfied by statute). ORS 135.285(2) provides:

“After judgment of conviction in municipal, justice or district court, the court shall order the original release agreement, and if applicable, the security, to stand pending appeal, or deny, increase or reduce the release agreement and the security. If a defendant appeals after judgment of conviction in circuit court for any crime other than murder or treason, release shall be discretionary.”

(Emphasis added.) Clearly, the emphasized portion of the statute establishes that there is no absolute statutory right to release on bail pending appeal: If the trial court is given the right “to deny * * * the release agreement and the security,” and if an affirmative decision to “release” is “discretionary,” it follows ineluctably that a decision not to release the convicted person lies within the range of discretion granted by the statute.

If the foregoing were subject to dispute as a matter of interpreting English, the legislative history of ORS 135.285(2) removes any residual doubt as to the statute’s meaning. First enacted in 1971 as part of a revision of the criminal procedure code relating to appeals, the statute was reenacted two years later as part of the comprehensive revision of Oregon’s criminal procedure law. Before it was changed to essentially its present form in 1971, ORS 140.030 (1969) provided:

“If the charge is for any other crime than those mentioned in ORS 140.020 [which is not pertinent to this case], the defendant, before conviction, or after judgment of conviction, if he has appealed, is entitled to be admitted to bail as a matter of right.”

ORS 140.030 (1969) thus made bail pending appeal, except in cases involving murder or treason, a matter of right. See Hanson v. Gladden, 246 Or 494, 426 P2d 465 (1967); Delaney v. Shobe, 218 Or 626, 346 P2d 126 (1959) (recognizing rule). The intent of the committee that drafted the 1972 Oregon Criminal Procedure Code was to change that rule:

“Subsection (2) [of what eventually became ORS 135.285] changes the current law of [former] ORS 140.030 from the right of the defendant to release upon appeal to release upon appeal subject to the discretion of the court. * * * If the defendant appeals from his conviction in circuit court, the court may grant release subject to its discretion.”

Proposed Oregon Criminal Procedure Code 147, § 247, Commentary (1972). See also Owens v. Duryee, 285 Or 75, 589 P2d 1115 (1979) (dictum indicating that release after judgment of guilt is discretionary under ORS 135.285(2)).

We find it to be clear from the foregoing discussion that plaintiff has no statutory right to the relief that he seeks. Therefore, the constitutional question that he raises is squarely presented. We turn now to that issue.²

CONSTITUTIONAL ANALYSIS

In support of his position, plaintiff relies primarily on the statement in Article I, section 14, of the Oregon Constitution, that “[o]ffences [sic], except murder, and treason, shall be bailable by sufficient sureties.” (Emphasis added.) There are three levels on which that constitutional provision must be addressed: Its specific wording, the case law surrounding it, and the historical circumstances that led to its creation. We shall address those topics in the order in which they are listed.

1. Text and Context

The particular words on which plaintiff relies do not, in our judgment, support his theory, as soon as those words are seen in the larger context of the constitutional provision as a whole: “[Offenses] * * * shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong.” (Emphasis added.)

It is clear, by that wording, that at least the second sentence of Article I, section 14, can apply only to those charged with, but not yet convicted of, the offenses of murder or treason. The second sentence of the constitutional provision becomes meaningless if it is intended to apply after a conviction is obtained and an appeal is brought: When a court or jury has found guilt beyond a reasonable doubt, proof hardly can be said to be other than “evident”; the presumption of guilt hardly can be said to be other than “strong.”

It would be anomalous to treat the first sentence of the constitutional provision as applying even after conviction and on appeal, while the second sentence would apply only before conviction, when there is not a single word in the constitutional provision itself to suggest that the two sentences differ in their coverage. The logical course is to give a parallel construction to both sentences of the same provision. This means that both sentences speak only to the circumstances of those charged with, but not yet convicted of, offenses. The question of post-conviction bail is left to legislative grace, not constitutional mandate.

Logic outside the wording of the provision also supports this construction. One charged with an offense is presumed innocent. One convicted of an offense has lost the benefit of that presumption and, as this court recently put it, may be under “enormous pressure to flee.” Gillmore v. Pearce, 302 Or 572, 581, 731 P2d 1039 (1987). It makes sense that Oregon’s founders would provide within the constitution for bail for one charged with an offense, but omit any such consideration for one already convicted.

2. Case Law

This court’s case law under Article I, section 14, is somewhat inconsistent on this issue. Some earlier cases appear to assume that bail on appeal is a matter of constitutional right, but no case actually required the Supreme Court to address the point. See, e.g., Hanson v. Gladden, supra, 246 Or at 495 (stating that, under Article I, section 14, and ORS 140.030 (1969), “the defendant in a criminal case who appeals from a conviction is entitled to be admitted to bail”); Mozorosky v. Hurlburt, 106 Or 274, 278, 198 P 556, 211 P 893 (1923) (same). However, later decisions of this court appear to assume that the constitutional provision is concerned solely with release before conviction of an offense; but, again, no case that we have found specifically and authoritatively decides the question. See, e.g., State v. Pinnell, 311 Or 98, 116, 806 P2d 110 (1991) (“When a defendant is charged with murder, his right to release on security pending trial will be denied if the state establishes at a security release hearing by ‘clear and convincing evidence’ that the likelihood of the defendant’s guilt is strong”) (emphasis added); State v. Douglas, 310 Or 438, 445, 800 P2d 288 (1990) (same); Gillmore v. Pearce, supra (same).

3. History

The concept of a right to bail, as set forth in Article I, section 14, and in similar provisions in the constitutions of other states, was foreign to the English court system, just as it is foreign to the system of bail in the federal judicial system under the Eighth Amendment. United States v. Edwards, 430 A2d 1321, 1325-29 (DC 1981), cert den 455 US 1022 (1982). Id. at 1327 (footnote omitted). The Massachusetts provision served as a model for the Pennsylvania Charter of Liberty (1682) which, in turn, was later adopted by the new states of Pennsylvania and North Carolina in 1776 and (still later) was widely copied in state constitutions enacted in the 19th century, among them Oregon’s. Id. at 1327-28. See also Foote, The Coming Constitutional Crisis in Bail: 1,113 U Pa L Rev 965, 975 (1965) (noting the lack of precedent in English law).

“The earliest colonial provision concerning bail is found in section eighteen of the Massachusetts Body of Liberties of 1641. This enactment deviated sharply from the English tradition by granting an affirmative, though limited, right to bail. Excluded were capital crimes, contempts of court, and other cases to be expressly designated by the legislature.”

The revolutionary nature of the concept of a right to bail, first recognized in Massachusetts in 1641 and adopted by the people of this state when they adopted Article I, section 14, in 1857, says nothing about the scope of the right. Was that right intended to apply only to the criminally accused, or was it also intended to apply to the criminally convicted'? We focus now on that more specific issue.

As is true of so many other sections of the Oregon Constitution, Article I, section 14, is based on an essentially identical provision of the 1851 Indiana Constitution. State ex rel Connall v. Roth, 258 Or 428, 431, 482 P2d 740 (1971); Palmer, The Sources of the Oregon Constitution, 5 Or L Rev 200, 201 (1925); Carey, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, 468 (1926).³ Just what the Oregon constitutional convention believed that the provision meant is unknown. We have found no Indiana decision antedating Oregon’s adoption of the Indiana provision that would have informed the judgment of the convention in that regard. Indiana court decisions since Oregon statehood uniformly hold that bail on appeal is not governed by Article I, section 17, of the Indiana Constitution,⁴ but decisions made after Oregon’s statehood do not establish the meaning of the earlier-adopted language in the Oregon Constitution. See State v. Soriano, 68 Or App 642, 649 n 8, 684 P2d 1220, aff’d, opinion adopted 298 Or 392, 693 P2d 26 (1984) (1860 Indiana decision not given “any special weight in construing” an Oregon constitutional provision that had been adopted from a similar Indiana provision, because the court decision came after the Oregon provision had been adopted).

Although neither Oregon nor Indiana precedent is decisive, we note that, of all the states that presently have provisions like Article I, section 14, only one — Louisiana — has ever held that its constitutional provisions concerning bail apply to criminal appeals. (Even that supposedly contrary decision from Louisiana, New Orleans v. Lacoste, 169 La 717, 125 So 865 (1930), appears to have been based on a peculiar and additional provision in the Louisiana Constitution expressly providing for post-conviction bail.) So far as we have been able to determine, all the other states that have considered the issue have concluded that their constitutional provisions applied only to proceedings before conviction. See generally State v. Wassillie, 606 P2d 1279, 1282 (Alaska 1980) (citing relevant authorities); State v. Flowers, 330 A2d 146, 147-48 (Del Supr 1974) (same). Thus, neither the specific history of the Oregon constitutional provision nor the more general history of the parallel provisions found in many other state constitutions supports plaintiffs position here.

CONCLUSION

We hold that Article I, section 14, applies only to those accused (but not yet convicted) of offenses. Article I, section 14, of the Oregon Constitution, does not aid plaintiff. Plaintiff does not have any legal right to release on bail pending appeal from his convictions. It follows that the writ of habeas corpus heretofore issued should be discharged.

Writ discharged.

1 We refer to “bail,” because that is the term used in Oregon Constitution, Article I, section 14 — the constitutional provision under scrutiny in this proceeding. By the term, “bail,” we refer to an amount of money or other thing of value that is pledged by one accused of a crime, or by others on behalf of the accused, and that is intended to ensure the attendance of the accused at all appropriate times during the criminal proceeding. That which traditionally was referred to as “bail” has been replaced in name, but not in basic concept, by what presently is referred to statutorily as a “security amount,” ORS 135.265. •

2 When we issued our writ in this case, we directed the parties to submit memoranda to us “addressing the historical origins, including federal constitutional provisions, of Article I, section 14, of the Oregon Constitution, specifically with reference to whether Article I, section 14, applies to release after conviction [and] pending appeal.” We wish to note that counsel complied with our request in a particularly comprehensive and helpful fashion. Much of what follows is derived directly from the materials presented to us by the parties’ memoranda.

3 Article I, section 14, of the Oregon Constitution is virtually identical to Article I, section 17, of the Indiana Constitution. The Indiana provision begins: “Offenses, other than murder and treason * * Burns Ind Stat Anno (Const). The Oregon provision, after misspelling “offenses,” substitutes “except murder, and treason” for the words, “other than murder or treason.” Beyond those minor differences, the two provisions are the same. More than 30 other states have similar provisions. United States v. Edwards, 430 A2d 1321, 1328 n 14 (DC 1981) (indicating that 36 states have similar provisions), cert den 455 US 1022 (1982); Duker, The Right to Bail: A Historical Inquiry, 42 Alb L Rev 33, 93-94 n 373 (1977) (listing 38 states).

4 See, e.g., Tyson v. State, 593 NE2d 175, 177 n 1 (Ind 1992) (so holding); Atkins v. State, 550 NE2d 342 (Ind Ct App 1990) (same).