NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter 

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 

State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made 

before this opinion goes to press.

2017 VT 9

No. 2017-029

State of Vermont Supreme Court

On Appeal from

 v. Superior Court, Chittenden Unit,

Criminal Division

Malik A. Pratt February Term, 2017

Dennis R. Pearson, J.

Ryan O. Richards, Chittenden County Deputy State’s Attorneys, Burlington, and David Tartter,

 Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Michael J. Straub, Law Offices of Michael J. Straub, Burlington, and Sara Puls, Appellate

Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. ROBINSON, J. This case calls upon us to consider whether a court may, in order 

to secure a defendant’s appearance in court, impose bail in an amount that the defendant is unable 

to pay. Defendant appeals the trial court’s requirement that he post a secured appearance bond in 

the amount of $25,000 with a ten percent deposit to be paid to the court. Defendant is now being 

held for lack of bail, and he argues that the amount set by the trial court is excessive. Although a 

court must consider a defendant’s financial resources in determining conditions of release, we 

conclude that neither the U.S. nor Vermont Constitution nor the applicable Vermont statutes 

require trial courts to find that a defendant has a present ability to raise bail in the amount set by 

the court. Although courts must consider a defendant’s financial resources when they set bail, 
2

courts may set bail at a level that a particular defendant cannot secure. In setting bail, courts must 

always be guided by the goal of securing a defendant’s appearance at trial, and should not set bail 

at an unattainable level for the purpose of detaining a defendant rather than assuring the 

defendant’s appearance. Given these standards, and the broad discretion trial courts enjoy in these 

cases, we conclude that the trial court’s bail decision is “supported by the proceedings below,” 13 

V.S.A. § 7556(b). We accordingly affirm.

¶ 2. On August 22, 2016, defendant was arraigned on two felony charges for aggravated 

domestic assault, 13 V.S.A. § 1043(a), and attempted sexual assault, 13 V.S.A. § 3252(a)(1). 

(Docket No. 3102-8-16 Cncr). Initially, the State requested that defendant be held without bail, 

and the court scheduled a hearing to consider the motion.1 The State subsequently withdrew its 

motion to hold defendant without bail and requested that the court impose bail and conditions of 

release requiring defendant to stay with a responsible adult and abide by a curfew. The court 

imposed a $10,000 secured appearance bond, with a $2000 deposit to be paid to the court. On 

September 12, defendant posted bail through a bail bondsman and was released under conditions 

that required him to stay at a court-approved address, comply with a curfew, not contact the victim, 

and enroll in school. 

¶ 3. On October 3, defendant was arrested and arraigned on two new sets of charges. 

Included in the first set of charges was one felony count of burglary, 13 V.S.A. § 1201(c)(1), three 

misdemeanor counts of violating conditions of release, 13 V.S.A. § 7559(e), and two misdemeanor 

counts of buying, receiving, selling, possessing, or concealing stolen property, 13 V.S.A. § 2561(b) 

(Docket No. 3643-9-16 Cncr). The court set bail at $25,000 for this set of charges, consecutive to 

defendant’s existing bail obligation, and imposed a number of conditions of release. Included in 

 

1 The State apparently filed this motion pursuant to both 13 V.S.A. § 7553 (release in cases 

punishable by life imprisonment) and 13 V.S.A. § 7553a (release in cases involving acts of 

violence). 
3

the second set of charges was one count of felony possession of methamphetamine, 18 V.S.A. 

§ 4234a(a), and misdemeanor counts of resisting arrest, 13 V.S.A. § 3017(a)(1), unlawful trespass, 

13 V.S.A. § 3705(a), and petit larceny, 13 V.S.A. § 2502 (Docket No. 3646-10-16 Cncr). The 

court imposed bail of $2500 for this set of charges, concurrent with the bail imposed in the first 

set of charges.

2

¶ 4. On November 18, defendant filed a motion to review the $25,000 bail 

determination, and the court held a hearing to consider the motion on November 28. Defendant

argued that the State failed to provide evidence that he could meet the bail requirement and that

the court must make particularized findings regarding defendant’s risk of flight that would justify

the bail amount. In its December 1 order, the court considered the role of a defendant’s ability to 

raise bail in a bail determination, asking whether any amount of bail may be imposed upon an 

indigent defendant. It did not directly answer the question in its analysis. Instead, after reviewing 

the evidence pertinent to the bail review hearing, the court concluded that there had been a dramatic 

escalation over the course of several months in the alleged criminality of defendant’s conduct, with 

criminal charges exponentially increasing in quantity and severity. The court concluded that the 

real issue in this case was protecting the public from further criminal behavior that could include 

the risk of violence and physical harm to others. Accordingly, the court scheduled another hearing 

on the issue of whether defendant should be held without bail under § 7553a. In the meantime, 

the court ordered that the $25,000 bail requirement remain in effect. 

 

2

 Defendant faces additional charges on other dockets that are not discussed here. These 

charges are relevant to the trial court’s bail determination, as the court considers the number and 

nature of charges pending against a defendant when setting bail. 13 V.S.A. § 7554(a)(1). 

However, this appeal pertains only to the trial court order issued on December 28 setting bail for 

docket numbers 3102-8-16 Cncr, 3643-9-16 Cncr, and 3646-10-16 Cncr, and we therefore consider 

the additional pending charges only to the extent that they bear on defendant’s flight risk, in 

accordance with 13 V.S.A. § 7554(a)(1).
4

¶ 5. The court held another hearing on December 22 to address the issue of whether 

defendant should be held without bail. The State, however, chose not to pursue a hold-withoutbail order and instead argued that the $25,000 bail requirement should be maintained under 13 

V.S.A. § 7554(a). At this hearing, the court considered the bail and conditions in all three of the 

above dockets.

¶ 6. In its December 28 order, the court incorporated its earlier findings and conclusions 

from the December 1 order. These findings included that defendant was facing thirty-one separate 

charges in fourteen pending cases, including serious felonies such as aggravated first-degree 

domestic assault, attempted sexual assault, and two counts of burglary involving occupied 

residences. He faces potential life imprisonment. Five of defendant’s pending charges involve 

violating conditions of release, indicating lack of compliance with the “least restrictive” 

requirements previously imposed by the court. His family ties are minimal, and his mother is the 

putative victim in connection with the aggravated first-degree domestic assault charge. He is not 

employed, and is currently transient, if not homeless, with no fixed residence. And he does not 

have any financial resources. On the other hand, the court noted that defendant was able to raise 

enough money to secure a bail bond in the amount of $2000 to satisfy the deposit requirement for 

the court’s prior $10,000 secured appearance bond, he has no prior convictions, and no failure-toappear charges on his record; almost all of his current pending charges have occurred in rapid 

succession over several months. Considering these findings, the court concluded that defendant 

did present a flight risk, so some amount of bail was necessary to secure his appearance. 

¶ 7. The court issued an order converting bail for the two sets of new charges filed on 

October 3 to a secured appearance bond in the amount of $25,000 with a ten percent deposit to be 

paid to the court, concurrent in both cases. On the same day, the court reimposed the $10,000 

secured appearance bond, with a $2000 deposit, in the case involving the August 22 assault 
5

charges.3 The $25,000 and $10,000 bond requirements were ordered to run consecutive to each 

other. The court also approved a family friend to serve as a responsible adult in connection with 

one of defendant’s conditions of release. The court noted that release on pretrial detention under 

13 V.S.A. § 7554b, with more structure and supervision by the Department of Corrections, would 

be preferable, but observed that that statute is infrequently used because the Department 

infrequently approves the proposed residence and/or custodian, even though such pre-approval is 

not explicitly required by the statute. 

¶ 8. Defendant was unable to post bail and remains in pretrial custody. Defendant 

appealed the cash bail requirement to a single Justice of this Court, who referred it to the full court 

for consideration. 13 V.S.A. § 7556(b). His primary argument on appeal is that the bail 

requirement set by the trial court was unconstitutionally excessive and was not the least restrictive 

means to assure defendant’s appearance in court because he is indigent and cannot meet the bail 

amount. Defendant asserts that a bail decision must be based on findings of a defendant’s ability 

to pay and that the trial court here did not properly consider defendant’s financial circumstances 

when setting bail.

¶ 9. We conclude that under Vermont’s constitutional and statutory scheme, a trial court 

setting bail is not required to make a finding that a defendant has an ability to pay the required 

amount of bail.4 However, under this scheme, and in light of our caselaw on the subject, bail 

requirements at a level a defendant cannot afford should be rare.

 

3 On March 2, 2017 the trial court, on its own initiative, issued an order reducing to $1000 

the deposit required toward the bail amount in the case involving the August 3 assault charges 

(Docket No. 3102-8-16 Cncr). That order does not on its face address the $25,000 bail order issued 

in connection with the October 3 charges (Docket Nos. 3643-9-16 Cncr and 3646-10-16 Cncr), 

and the record available to this Court does not reflect any changes in connection with that docket. 

We accordingly proceed on the understanding that that order remains in effect. 

4 Because the State did not try to make the necessary showing under §§ 7553 and 7553a 

that the evidence of guilt on one of the qualifying charges is great, and the trial court accordingly 

did not make such a finding, we presume that, notwithstanding the nature of some of the charges 
6

¶ 10. Vermont’s approach to pretrial release is grounded in the Vermont and U.S. 

Constitutions, and is detailed in Vermont’s statutes. The Vermont Constitution provides that, with 

two exceptions not applicable here, “[a]ll persons shall be bailable by sufficient sureties.” Vt. 

Const. ch. II, § 40. It further requires, “[e]xcessive bail shall not be exacted for bailable offenses.” 

Id.; see also, U.S. Const. amend. VIII (“Excessive bail shall not be required”).5 The Vermont 

statute setting standards for pretrial release on bailable offenses, 13 V.S.A. § 7554, provides that

a defendant “shall be ordered released on personal recognizance or upon the execution of an 

unsecured appearance bond” unless the court “determines that such a release will not reasonably 

ensure the appearance of the person as required.” 13 V.S.A. § 7554(a)(1). The statute’s starting

presumption, then, is pretrial release on personal recognizance or an unsecured appearance bond, 

unless those conditions will not assure the defendant’s appearance. See State v. Duff, 151 Vt. 433, 

435, 563 A.2d 258, 260 (1989).

¶ 11. When determining whether the defendant presents a risk of nonappearance, the 

court “shall consider, in addition to any other factors, the seriousness of the offense charged and 

the number of offenses with which the person is charged.” 13 V.S.A. § 7554(a)(1). The court 

must also consider, on the basis of available information, the nature and circumstances of the 

offense charged, the weight of the evidence, the accused’s family ties, employment, financial 

resources, character and mental condition, the length of residence in the community, record of 

 

against defendant, he is entitled to bail. Cf. State v. Theriault, 2014 VT 119, ¶ 2, 198 Vt. 625, 109 

A.3d 448 (mem.) (explaining that before defendant may be held without bail under § 7553, “[t]he 

State must present [substantial, admissible] evidence [of guilt], and the court must make a specific 

finding, as to each element of the charged crime”).

5 See McDonald v. City of Chicago, 561 U.S. 742, 764 n.12 (2010) (listing the excessive 

bail clause among those that apply to the states through the Due Process Clause); Schilb v. Kuebel, 

404 U.S. 357, 365 (1971) (“Bail, of course, is basic to our system of law, and the Eighth

Amendment’s proscription of excessive bail has been assumed to have application to the States 

through the Fourteenth Amendment.”) (citations omitted).
7

convictions, and record of appearance or nonappearance at court proceedings or of flight to avoid 

prosecution. 13 V.S.A. § 7554(b). 

¶ 12. If the court determines that a defendant does present a risk of nonappearance, it 

may impose “the least restrictive” conditions or combination of conditions that will assure the 

person’s appearance. 13 V.S.A. § 7554(a)(1). These conditions may include placing the defendant 

in the custody of a designated person or organization agreeing to supervise him or her;

6

restricting 

his or her travel, association, or place of abode during the period of release; requiring the defendant 

to participate in a drug or alcohol treatment program; requiring the defendant to execute a secured 

appearance bond, or requiring the execution of a surety bond or the deposit of cash in lieu. Id. 

§ 7554(a)(1)(A)-(E). 

¶ 13. The court may also impose certain conditions of release to protect the public, but 

“the sole constitutionally legitimate purpose of monetary conditions of release is to provide 

‘additional assurance of the presence of an accused.’ ” State v. Cardinal, 147 Vt. 461, 464, 520 

A.2d 984, 986 (1986) (quoting Stack v. Boyle, 342 U.S. 1, 5 (1951)). Therefore, bail may be used

only to assure the defendant’s appearance in court and cannot be used as “a means of punishing 

the defendant, nor of protecting the public.” State v. Pray, 133 Vt. 537, 541-42, 346 A.2d 227, 

229 (1975); see also State v. Wood, 157 Vt. 286, 289, 597 A.2d 312, 313 (1991) (“The imposition 

of $5,000 bail in this case . . . would only protect the victim and the integrity of the judicial process 

if it could not be met. This may have been what the trial judge had in mind. Yet, the imposition 

of bail in an amount that cannot be raised by an accused, in order to obtain his incarceration, is 

precisely what the law forbids.”).

 

6 This condition may apply only in cases in which a defendant has been charged with 

certain crimes. See 13 V.S.A. § 7554(a)(1)(A) (condition applicable only to offenses that are not 

nonviolent as defined in 28 V.S.A. § 301).
8

¶ 14. Although both the U.S. and Vermont Constitutions prohibit excessive bail, neither 

this Court nor the U.S. Supreme Court has ever held that bail is excessive solely because the 

defendant cannot raise the necessary funds. See Duff, 151 Vt. at 436, 563 A.2d at 261

(“[D]efendant need not be capable of meeting bail in order for the amount to be supported by the 

record.”). As the Eight Circuit explained:

[The test of excessive bail is] whether bail is set at a figure higher 

than an amount reasonably calculated to insure that the accused will 

stand trial and submit to sentence if convicted. The mere financial 

inability of the defendant to post an amount otherwise meeting the 

aforesaid standard does not automatically indicate excessiveness. 

The purpose for bail cannot in all instances be served by only 

accommodating the defendant’s pocketbook and his desire to be free 

pending possible conviction.

White v. United States, 330 F.2d 811, 814 (8th Cir. 1964) (quotation omitted); see also Lee v. 

Evans, No. 92-15658, 1994 WL 651959, at *2 (9th Cir. Nov. 18, 1994) (“A bail setting is not 

excessive within the meaning of the Eighth Amendment merely because the defendant cannot pay 

it.”); United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988) (“[A] bail setting is not 

constitutionally excessive merely because a defendant is financially unable to satisfy the 

requirement.”); United States ex rel. Fitzgerald v. Jordan, 747 F.2d 1120, 1134 (7th Cir. 1984) 

(“The present financial inability of the petitioner to meet his bail is certainly a consideration and a 

concern which must be taken into account when determining the appropriate amount of bail, but it 

is neither the only nor controlling factor to be considered by the trial court judge in setting bail.”); 

United States v. Radford, 361 F.2d 777, 780-81 (4th Cir. 1966) (adopting White holding).

¶ 15. The touchstone for identifying excessive bail under the Eighth Amendment is not 

what a defendant can pay but, rather, whether bail is set at “a figure higher than an amount 

reasonably calculated to fulfill” the purpose of “giving adequate assurance that [the defendant] 

will stand trial and submit to sentence if found guilty.” Stack v. Boyle, 342 U.S. 1, 4 (1951). 

Although in many cases the amount of bail required to assure a defendant’s appearance will not 
9

be prohibitive for the defendant, the Constitution does not require that a defendant have the ability 

to pay the required bail if it is otherwise reasonable.7

¶ 16. Likewise, 13 V.S.A. § 7554 does not require a finding that a defendant has the 

ability to pay a particular amount to support a trial court’s bail order. When interpreting a statute, 

“[o]ur goal is to implement the Legislature’s intent.” State v. Stell, 2007 VT 106, ¶ 12, 182 Vt. 

368, 937 A.2d 649. “We assume the Legislature intended the plain and ordinary meaning of the 

language it used.” Id. Section 7554(b) lists “financial resources” as one factor among many for 

the trial court to consider when imposing conditions of release. 13 V.S.A. § 7554(b). Although 

“financial resources” may not be identical to “ability to pay,” the two concepts are related; a 

defendant’s financial resources may affect the defendant’s ability to post bail at a particular level

and is among the factors a court should consider in setting bail. But nothing in the statute suggests 

that financial resources was intended to be the controlling factor rather than one of several factors 

that guide the trial court’s evaluation of the least restrictive means of ensuring a defendant’s 

appearance. If the Legislature had intended to require a court to find that a defendant has the 

ability to pay the bail set by the court, the Legislature would have said so. As a consequence, 

§ 7554 allows a court to set bail at a level that a particular defendant may not be able to meet if the 

court concludes that bail at that level is the least restrictive way to assure that defendant’s 

appearance.8 

 

7 We acknowledge that the State cannot incarcerate people simply because they cannot 

pay a fine or judgment. See, e.g., Turner v. Rogers, 564 U.S. 431, 447 (2011) (holding that court 

violated defendant’s due process rights by, among other things, incarcerating him for civil 

contempt without any finding that he had the ability to pay child support arrearage); Tate v. Short, 

401 U.S. 395, 397-98 (1971) (holding that petitioner who was held on municipal prison farm 

because he was unable to pay fines on convictions for traffic offenses violated equal protection 

rights). These cases involved incarceration as punishment for failure to pay sums due and did not 

purport to address the use of money bail to secure a defendant’s appearance in court.

8 Defendant points to a number of recent developments in other states to support the 

proposition that a court should not require cash or a money bond if that results in pretrial detention 

of the defendant. The authorities defendant cites all involve judicial rulemaking or legislation. 
10

¶ 17. Although Vermont’s bail statute and the applicable constitutional protections do 

not require that a defendant have an ability to post bail at the level set by the trial court, courts 

should be particularly circumspect in exercising their discretion to set bail at a level that a 

defendant cannot meet. This Court has recognized that “[p]retrial detention necessarily cuts 

against the presumption of innocence inherent in our criminal jurisprudence.” Duff, 151 Vt. at

440, 563 A.2d at 263; see also State v. Hance, 2006 VT 97, ¶ 17, 180 Vt. 357, 910 A.2d 874 (2006) 

(“We have recognized that pretrial detention undermines the presumption of innocence by 

depriving a defendant of a fundamental value, the right to liberty, without an adjudication of 

guilt.”) (quotation omitted). The U.S. Supreme Court has likewise acknowledged that excessive 

bail undermines the presumption of innocence. See United States v. Salerno, 481 U.S. 739, 755 

(1987) (“In our society liberty is the norm, and detention prior to trial or without trial is the 

carefully limited exception.”); Stack, 342 U.S. at 4 (“This traditional right to freedom before 

conviction permits the unhampered preparation of a defense, and serves to prevent the infliction 

of punishment prior to conviction. Unless this right to bail before trial is preserved, the 

presumption of innocence, secured only after centuries of struggle, would lose its meaning.”) 

(citations omitted). 

¶ 18. Given this sensitivity, this Court has vacated high cash bail requirements in cases 

where the record contained little evidence of risk of flight beyond the seriousness of the charge 

against a defendant. See, e.g., Duff, 151 Vt. at 436, 563 A.2d at 260-61 (reversing and remanding 

bail condition of $150,000 where there was a “total lack of any evidentiary support for bail 

amount”); Cardinal, 147 Vt. at 465-66, 520 A.2d at 986 (holding that bail condition of $250,000 

 

We resolve this appeal on the basis of Vermont’s existing bail statute, cognizant of the 

constitutional parameters. We express no opinion on the policy question whether a system in 

which monetary bail is a condition courts can use to secure a defendant’s appearance is a good 

one, or whether the bail statute ought to require that bail be set at a level the defendant can pay. 

These are questions first and foremost for the Legislature.
11

was not supported by evidence where defendant, charged with sexual assault, was a lifelong 

resident of Vermont with wife, four children, and job working for same employer for seventeen 

years). The court does not, however, have to make a finding that the defendant can meet bail in 

order for the amount to be supported by the record, and it may impose a bail requirement even 

when the defendant is indigent, as long as the bail decision is supported by findings that show the 

defendant presents a risk of nonappearance and that the conditions are the least restrictive means 

of assuring the defendant’s appearance.

¶ 19. Likewise, we have ruled unconstitutional a statute authorizing cash-only bail, 

observing that the statute would “increase government power to engage in pretrial confinement, a 

result which cannot be reconciled with the history of the ‘sufficient sureties’ clause or our own 

cases discussing bail, in which we have recognized the threat to individual liberty inherent in 

pretrial detention.” Hance, 2006 VT 97, ¶ 17.

¶ 20. With these considerations in mind, we conclude that the trial court here acted within 

its discretion in setting bail in this case. Our consideration is heavily informed by the applicable 

standard of review: on appeal, this Court should affirm an order setting conditions of release “if it 

is supported by the proceedings below.” 13 V.S.A. § 7556(b). We review the trial court’s bail 

decision for abuse of discretion. Hance, 2006 VT 97, ¶ 6. 

¶ 21. Considering the record below and the trial court’s findings, we conclude that the 

trial court acted within its discretion in setting bail. The court considered the applicable § 7554 

factors and determined that defendant’s lack of family ties, stable residence, and job, as well as 

the number and seriousness of defendant’s charged crimes showed that he presented a risk of flight. 

The court pointed to defendant’s recent flurry of extensive alleged criminal activity, much of which 

occurred while he was out on bail after the arraignment on the first set of charges, as a sign of 

defendant’s state. The court acknowledged that defendant was indigent and did not have any 

financial resources. The court imposed conditions, but apparently concluded that the conditions 
12

alone would be insufficient to secure defendant’s appearance. It ultimately determined that, in 

addition to the specified conditions, a secured appearance bond in the amount of $25,000, with ten 

percent down, was the minimum amount needed to secure defendant’s appearance. The court 

explained its bail amount in the face of defendant’s indigency on this basis.

9

 There is no indication 

on the record that the court imposed bail for any reason other than to assure his appearance, and 

there is therefore no sign that bail was used for improper purposes. Cf. Wood, 157 Vt. at 289, 597 

A.2d at 313 (“[T]he imposition of bail in an amount that cannot be raised by an accused, in order 

to obtain his incarceration, is precisely what the law forbids.”). 

Affirmed.

FOR THE COURT:

Associate Justice

 

9 The trial court required a secured appearance bond with ten percent of the amount of the 

bond payable to the court as opposed to cash or a surety bond with sufficient solvent sureties. 

Defendant did not request this relief. Compare State v. Sullivan, No. 2015-149, 2015 WL 

2384077, at *5 (Vt. May 1, 2015) (unpub. mem.), 

https://www.vermontjudiciary.org/UPEO2011Present/eo15-149.bail.pdf (concluding that trial 

court exceeded its discretion by requiring cash bail or surety bond without adequate explanation 

where defendant requested a secured appearance bond rather than surety bond in same amount). 

Defendant does not appeal this aspect of the court’s order, and we do not address it here.