Background
Brian Tinker was charged with two counts of misdemeanor trespass after police allegedly found him twice within two days at the Brattleboro Transportation Center despite having served him with a notice against trespass. The incidents occurred shortly after his release from more than twenty-eight years in prison. He had no employment or financial resources and could not post the $200 cash bail imposed as a condition of release.
At arraignment, the criminal division continued the $200 bail condition. Although Tinker emphasized the minor charges, his Vermont ties, and his record of appearing in court, the court relied on the two alleged offenses in quick succession, the strength of the evidence, and a report that Tinker had said he did not intend to comply with sex-offender-registration requirements. Tinker appealed to a single justice of the Vermont Supreme Court, arguing that the lower court improperly found a risk of flight and imposed unconstitutionally excessive bail.
The Court’s Holding
The Court affirmed. Applying abuse-of-discretion review and the statutory command to affirm a bail order supported by the proceedings below, Justice Drescher concluded that Tinker’s reported intention not to register as a sex offender supported the finding that he presented a risk of flight from prosecution. Although the statutory factors expressly addressing offense seriousness, custodial status, and prior failures to appear weighed against that finding, the bail statute permitted the court to consider other factors. The Court reasoned that refusing to provide registration information could indicate a desire not to be located by law enforcement.
The Court also rejected Tinker’s excessive-bail argument. A defendant’s inability to pay does not, by itself, make bail excessive, and the trial court was not required to find that Tinker could afford the amount imposed. The relevant question was whether bail exceeded an amount reasonably calculated to assure his appearance. Given the record, the statutory factors, and the Legislature’s authorization of bail up to $200 for misdemeanor trespass prosecutions, the Court held that the order was supported by the record and within the criminal division’s discretion.
Key Takeaways
- A Vermont court may impose cash bail only upon evidence of a risk of flight, but it may consider relevant circumstances beyond the factors specifically listed in the bail statute.
- A stated intention not to comply with sex-offender-registration requirements may support a flight-risk finding because the required information enables authorities to locate the registrant.
- Cash bail is not excessive solely because a defendant cannot afford it; financial resources are one factor in determining the least restrictive means of reasonably assuring appearance.
Why It Matters
The order illustrates the breadth of information Vermont courts may consider when assessing flight risk, including hearsay and conduct unrelated to a prior failure to appear. It also confirms that inability to pay is relevant but not dispositive when courts select release conditions.
The decision is limited by its deferential appellate posture: under 13 V.S.A. § 7556(b), the bail order had to be affirmed if supported by the proceedings below. The Court did not authorize cash bail for public-safety or punitive purposes, both of which remain impermissible.