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State v. Anderson

Supreme Court of Connecticut.
Nov 3, 2015
319 Conn. 288 (Conn. 2015)

Summary

reaffirming principles of Mahoney

Summary of this case from Doe v. Dep't of Mental Health & Addiction Servs.

Opinion

No. 19399.

11-03-2015

STATE of Connecticut v. Francis ANDERSON.

Monte P. Radler, public defender, with whom was Cynthia Love, assistant public defender, for the appellant (defendant). Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Peter A. McShane, state's attorney, Jeffrey Doskos, senior assistant state's attorney, and Alanna D. Tynan, deputy assistant state's attorney, for the appellee (state).


Monte P. Radler, public defender, with whom was Cynthia Love, assistant public defender, for the appellant (defendant).

Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Peter A. McShane, state's attorney, Jeffrey Doskos, senior assistant state's attorney, and Alanna D. Tynan, deputy assistant state's attorney, for the appellee (state).

Nancy B. Alisberg filed a brief for the Office of Protection and Advocacy for Persons with Disabilities as amicus curiae.

Proloy K. Das filed a brief for the National Crime Victim Law Institute as amicus curiae.

Opinion

ZARELLA, J.

This case raises the questions of whether a trial court may set a monetary bond as a condition of release when an insanity acquittee is charged with committing new, violent crimes while housed at a maximum security psychiatric facility and, if the acquittee cannot post that bond, whether he may be held in the custody of the Commissioner of Correction at a prison while awaiting trial on the new charges. After concluding that this matter presented issues of substantial public interest and that further delay may work a substantial injustice, the Chief Justice granted the request of the defendant, Francis Anderson, to file an expedited, interlocutory appeal pursuant to General Statutes § 52–265a. The defendant thereafter appealed from the trial court's order requiring, as a pretrial condition of his release, that he post a $100,000 cash or surety bond. He claims that, under the circumstances of this case, the trial court's imposition of a monetary bond and, after he was unable to post that bond, his subsequent transfer to the custody of the Commissioner of Correction, amounted to violations of his constitutional rights to (1) bail, pursuant to article first, § 8, of the constitution of Connecticut, and (2) procedural due process, pursuant to the fourteenth amendment to the United States constitution. We disagree with each of the defendant's claims and, accordingly, affirm the trial court's order setting a monetary bond as a condition of his release.

General Statutes § 52–265a, which allows for expedited, interlocutory appeals when certain, special circumstances are shown to exist, provides in relevant part: “(a) Notwithstanding the provisions of sections 52–264 and 52–265 governing appeals and writs of error, any party to an action who is aggrieved by an order or decision of the Superior Court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the Supreme Court within two weeks from the date of the issuance of the order or decision. The appeal shall state the question of law on which it is based.“(b) The Chief Justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice.“(c) Upon certification by the Chief Justice that a substantial public interest is involved and that delay may work a substantial injustice, the trial judge shall immediately transmit a certificate of his decision, together with a proper finding of fact, to the Chief Justice, who shall thereupon call a special session of the Supreme Court for the purpose of an immediate hearing upon the appeal....”Subsequent to the Chief Justice's granting of the defendant's application to appeal pursuant to § 52–265a, we granted the petitions of the Office of Protection and Advocacy for Persons with Disabilities and the National Crime Victim Law Institute to appear as amici curiae.

Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great....”

Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great....”

General Statutes § 54–64f provides: “(a) Upon application by the prosecuting authority alleging that a defendant has violated the conditions of the defendant's release, the court may, if probable cause is found, order that the defendant appear in court for an evidentiary hearing upon such allegations. An order to appear shall be served upon the defendant by any law enforcement officer delivering a copy to the defendant personally, or by leaving it at the defendant's usual place of abode with a person of suitable age and discretion then residing therein, or mailing it by registered or certified mail to the last-known address of the defendant.“(b) If the court, after an evidentiary hearing at which hearsay or secondary evidence shall be admissible, finds by clear and convincing evidence that the defendant has violated reasonable conditions imposed on the defendant's release it may impose different or additional conditions upon the defendant's release. If the defendant is on release with respect to an offense for which a term of imprisonment of ten or more years may be imposed and the court, after an evidentiary hearing at which hearsay or secondary evidence shall be admissible, finds by clear and convincing evidence that the defendant has violated reasonable conditions of the defendant's release and that the safety of any other person is endangered while the defendant is on release, it may revoke such release.“(c) If the defendant is on release with respect to an offense for which a term of imprisonment of ten or more years may be imposed and the court, after an evidentiary hearing at which hearsay or secondary evidence shall be admissible, finds by clear and convincing evidence that the safety of any other person is endangered while the defendant is on release and that there is probable cause to believe that the defendant has committed a federal, state or local crime while on release, there shall be a rebuttable presumption that the defendant's release should be revoked.“(d) The revocation of a defendant's release pursuant to this section shall cause any bond posted in the criminal proceeding to be automatically terminated and the surety to be released.”

The fourteenth amendment to the United States constitution, § 1, provides in relevant part: “No State shall ... deprive any person of life, liberty or property, without due process of law....”

Prior to the incident for which the defendant was charged in the present case, the defendant had been charged with assault of public safety personnel in violation of General Statutes § 53a–167c (a), a class C felony, which is punishable by a term of one to ten years imprisonment. See General Statutes §§ 53a–35a (7) and 53a–167c (b). On May 27, 2014, the court ordered the defendant released on a promise to appear in that case. The state alleged that the defendant had committed the most recent assault on August 25, 2014, at which time he was on release with respect to the previous felony assault, thus making him subject to the revocation provisions set forth in § 54–64f.

The following undisputed facts and procedural history are relevant to this appeal. The defendant, who is forty-six years old, has an extensive history of psychiatric problems and involvement with the criminal justice system. He has spent much of his adult life either incarcerated or in other institutionalized settings. Following an incident that occurred on or about July 6, 2012, the defendant was charged with assault of a correction officer, breach of the peace and failure to submit to fingerprinting. The defendant subsequently was found not guilty of these charges by reason of mental disease or defect. On August 15, 2013, the trial court, McMahon, J., committed the defendant to the custody of the Commissioner of Mental Health and Addiction Services. The defendant was transferred to the Whiting Forensic Division of Connecticut Valley Hospital (hospital), where he received a psychiatric evaluation pursuant to General Statutes § 17a–582. The October 23, 2013 report resulting from that evaluation recommended that the defendant be returned to prison. On November 18, 2013, Judge McMahon disagreed with the hospital's recommendation and, consistent with the contrary recommendation of an independent evaluator sought by the defendant pursuant to § 17a–582 (c), ordered that the defendant be committed to the custody of the Psychiatric Security Review Board (board) and confined at the hospital for a period not exceeding ten years. On February 7, 2014, the board held the defendant's initial commitment hearing, after which it concluded that he had a psychiatric illness that required care, custody and treatment. It concluded further that he had a psychiatric disability to the extent that his discharge would constitute a danger to himself or others, and that he required confinement in a maximum security setting. Accordingly, the board ordered that the defendant remain confined at the hospital under maximum security conditions.

With the exception of a five day period, the defendant had been incarcerated in correctional facilities from age seventeen to age thirty-five. He spent approximately the next three years in either an inpatient hospital setting or the community, then was reincarcerated in 2007. He remained incarcerated until the occurrence of the events described hereinafter.

According to the majority, preventive detention is properly defined as detention without bail. See footnote 32 of the majority opinion. Of course, as the majority acknowledges, detention without bail is prohibited by article first, § 8, of the Connecticut constitution except in certain capital cases. The majority's conception of preventive detention as detention without bail, however, is too limited. In the present case, it is undisputed that the trial court intentionally set a bond that far exceeded an amount that the defendant could pay solely to ensure that he would be incarcerated in advance of trial due to his perceived dangerousness. Thus, despite the majority's apparent reluctance to acknowledge it, the defendant has been preventively detained: he remains incarcerated, unable to post a bond that was purposefully set by the court in an amount far greater than he could pay, solely on account of his perceived dangerousness.

At the time of the incident, the defendant was serving a sentence for an earlier conviction for assault of a correction officer.

I therefore do not reach the defendant's due process claim.

General Statutes § 53a–13 provides in relevant part: “(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law....”

See, e.g., United States v. Melendez–Carrion, 790 F.2d 984, 988, 1004 (2d Cir.), cert. dismissed, 479 U.S. 978, 107 S.Ct. 562, 93 L.Ed.2d 568 (1986). See generally L. Tribe, “An Ounce of Detention: Preventive Justice in the World of John Mitchell,” 56 Va. L.Rev. 371 (1970).

General Statutes § 17a–582 provides in relevant part: “(a) When any person charged with an offense is found not guilty by reason of mental disease or defect pursuant to section 53a–13, the court shall order such acquittee committed to the custody of the Commissioner of Mental Health and Addiction Services who shall cause such acquittee to be confined, pending an order of the court pursuant to subsection (e) of this section, in any of the state hospitals for psychiatric disabilities....

“(b) Not later than sixty days after the order of commitment pursuant to subsection (a) of this section, the superintendent of such hospital ... shall cause the acquittee to be examined and file a report of the examination with the court, and shall send a copy thereof to the state's attorney and counsel for the acquittee, setting forth the superintendent's ... findings and conclusions as to whether the acquittee is a person who should be discharged....”

The court in Salerno also held that preventive detention pursuant to the Bail Reform Act of 1984 did not violate the substantive component of the due process clause of the fifth amendment. See United States v. Salerno, supra, 481 U.S. at 746, 752, 107 S.Ct. 2095. The court concluded that, because of the significant procedural protections required before bail could be denied on public safety grounds—including that the government must prove by clear and convincing evidence that no conditions of release would ensure the safety of the public—the Bail Reform Act of 1984 was sufficiently narrowly tailored to further the government's compelling interest in preventing crime by arrestees released on bail. See id., at 749–51, 107 S.Ct. 2095.

Pursuant to § 17a–582 (c), following receipt of the hospital's report, counsel for the acquittee may seek a separate examination of the acquittee by a psychologist or psychiatrist of the acquittee's choice, and any resulting report from such examination must be filed with the trial court within thirty days of the filing of the hospital's report.

Practice Book § 38–4 similarly requires the court to consider the safety of other persons when setting conditions of release in certain cases; see Practice Book § 38–4(a); and authorizes the court to consider the likelihood that the defendant will commit another crime if released when setting such conditions. See Practice Book § 38–4(b)(10).

Pursuant to § 17a–582 (d), the trial court, after receiving the results of a hospital evaluation conducted pursuant to § 17a–582 (b) and, if the acquittee requests it, a separate evaluation conducted by a psychologist or psychiatrist of the acquittee's choice pursuant to § 17a–582 (c), must conduct a hearing. After that hearing, the court may find that the acquittee should be either discharged, conditionally released or confined. See General Statutes § 17a–582 (e)(1) and (2). “If the court finds that the acquittee is a person who should be confined ... the court shall order the acquittee committed to the jurisdiction of the board and ... confined in a hospital for psychiatric disabilities ... for custody, care and treatment pending a hearing before the board pursuant to section 17a–583; provided (A) the court shall fix a maximum term of commitment, not to exceed the maximum sentence that could have been imposed if the acquittee had been convicted of the offense....” General Statutes § 17a–582 (e)(1).

The defendant further argues that, to the extent that § 54–64a (b) authorizes the court to set a monetary bond in order to protect the safety of other persons, the trial court only may consider such concerns when the defendant poses a risk to the safety of others in a manner that affects the integrity of the judicial process. I note that, as a matter of statutory interpretation, it is by no means clear that the legislature intended for § 54–64a (b) to authorize the imposition of a monetary bond solely on the basis of concerns that a defendant poses a general threat to public safety and not to ensure his appearance or the integrity of the proceedings. In the trial court, the defendant challenged that court's authority under § 54–64a to detain him solely on the ground that he posed a danger to Whiting staff and patients, but he appears to have limited his claim on appeal to the contention that the trial court's application of § 54–64a in this case violated article first, § 8, of the Connecticut constitution. Thus, although the parties have addressed the meaning of § 54–64a (b) in the context of the defendant's constitutional challenge, they have not briefed the issue of whether the trial court's imposition of a monetary bond violated the statute itself. I believe that supplemental briefing by the parties on this issue is warranted. Because, however, the majority considers only whether the imposition of a monetary bond in this case violated the defendant's state constitutional rights, I also limit my review to that claim.

Pursuant to § 17a–583 (a), “[t]he board shall conduct a hearing to review the status of [an insanity] acquittee within ninety days of an order committing the acquittee to the jurisdiction of the board,” and, pursuant to § 17a–583 (b), at that hearing, “the board shall make a finding and act pursuant to section 17a–584.”General Statutes § 17a–584 directs the board, at the hearing held pursuant to § 17a–583 (a), to “make a finding as to the mental condition of the acquittee ... considering that its primary concern is the protection of society....” It further authorizes the board to find that the acquittee either should be discharged, conditionally released or confined. See General Statutes § 17a–584 (1) through (3). “If the board finds that the acquittee is a person who should be confined, the board shall order the person confined in a hospital for psychiatric disabilities ... for custody, care and treatment.” General Statutes § 17a–584 (3).General Statutes § 17a–599 provides in relevant part that, “[a]t any time the court or the board determines that the acquittee is a person who should be confined, it shall make a further determination of whether the acquittee is so violent as to require confinement under conditions of maximum security....” Pursuant to General Statutes § 17a–561, “[t]he Whiting Forensic Division of the Connecticut Valley Hospital shall exist for the care and treatment of [inter alia] (1) patients with psychiatric disabilities, confined in facilities under the control of the Department of Mental Health and Addiction Services, who require care and treatment under maximum security conditions....”

Article first, § 14, of the Connecticut constitution of 1818 provides in relevant part: “All prisoners shall, before conviction, be bailable by sufficient sureties, except for capital offences, where the proof is evident, or the presumption great....”

Upon arriving at the hospital, the defendant allegedly commenced a pattern of assaulting other patients and hospital staff. As a result of his conduct on various dates from October, 2013, through February, 2014, he was charged with several misdemeanors. Thereafter, in April, 2014, he was charged with, inter alia, two counts of assault of health-care personnel, a class C felony. See General Statutes § 53a–167c. In connection with all but one of these charges, the defendant was released on a promise to appear and ordered returned to the hospital. Also, in April, 2014, the state filed a motion for bond review, in which it requested that the trial court modify the defendant's existing conditions of release and impose an “appropriate” monetary bond. The defendant filed an opposition to the state's motion and an accompanying memorandum of law, arguing therein that the court lacked the authority to impose a monetary bond under the circumstances of this case. The parties attached exhibits to these filings, including the hospital's October 23, 2013 report concerning its psychiatric evaluation of the defendant, several reports from the defendant's independent psychiatric evaluator, the transcript of the commitment hearing before the board and the board's report recommending that the defendant be confined in a maximum security setting.

The record indicates that, as a result of incidents occurring on five separate dates, the defendant was charged with a total of eleven misdemeanors, including one count of unlawful restraint in the second degree, three counts of assault in the third degree, two counts of threatening in the second degree, one count of criminal mischief in the third degree, three counts of disorderly conduct and one count of breach of the peace in the second degree.Moreover, the hospital's October 23, 2013 report indicates that, between August 24, 2013, and October 1, 2013, while the defendant was being evaluated by the hospital, he engaged in an additional five unprovoked physical altercations with other patients, as well as other verbal altercations with both patients and hospital staff. None of these incidents resulted in any criminal charges against the defendant.

As we noted in Ayala, the statutory declaration of rights “had constitutional overtones even though it was statutory in form. State v. Lamme, 216 Conn. 172, 179, 579 A.2d 484 (1990) ; see also C. Collier, [‘The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,’ 15 Conn. L.Rev. 87, 94 (1982)]....” (Citation omitted; internal quotation marks omitted.) State v. Ayala, supra, 222 Conn. at 350, 610 A.2d 1162.

As to the charge of threatening in the second degree, the trial court, Gold, J., imposed a $1000 nonsurety bond.

In the quoted language in Ayala, the year 1949 rather than 1849 appears. As the majority notes, this court mistakenly identified 1949 as the year in which the legislature added statutory language conditioning bail on a defendant's appearance. See footnote 25 of the majority opinion, citing Revised Statutes of the State of Connecticut (1849) tit. VI, c. XII, § 163, pp. 259–60. In light of the court's previous statement in Ayala that “[l]egislative references to either purpose were eliminated from statutes enacted after 1818 and before 1849”; State v. Ayala, supra, 222 Conn. at 351, 610 A.2d 1162; it is likely that we meant to refer to 1849 as the year in which the legislature added statutory language conditioning bail on the defendant's appearance. As I explain hereinafter, however, my review of the statutory history indicates that provisions governing the administration of bail in Connecticut have conditioned bail in criminal cases on the defendant's appearance in court since at least 1784.

On June 18, 2014, the trial court, Gold, J., concluded that, although the defendant was a confined insanity acquittee, the court retained the authority, conferred by General Statutes § 54–64a and Practice Book § 38– 4 , to set a monetary bond upon his commission of new offenses in the hospital setting, particularly for the purpose of ensuring the safety of other persons. The court then scheduled an evidentiary hearing on the state's motion for bond review to consider whether the defendant's existing conditions of release should be modified. Before that hearing could occur, however, the defendant was charged with another felony count of assault of health-care personnel, as well as three additional misdemeanors. On August 25, 2014, at the defendant's arraignment on those charges, the court set a bond in the amount of $100,000, cash or surety. Because the defendant was unable to post that bond, he was transferred to the custody of the Commissioner of Correction. See General Statutes § 54–64a (d). The court directed that the mittimus reflect that the defendant required mental health treatment and that he should be housed and monitored in a way to ensure, to the extent possible, the safety of other inmates and correction personnel. The defendant's appeal to this court, pursuant to certification by the Chief Justice, ultimately followed.

Hereinafter, all references to the trial court are to the court, Gold, J., unless otherwise noted.

To the extent that we suggested in Ayala that the framers of the 1818 constitution intended the right to bail contained in article first, § 14, of the 1818 constitution to be coextensive with the provision contained in the preconstitutional declaration of rights; see State v. Ayala, supra, 222 Conn. at 350–51, 610 A.2d 1162; a comparison of the text of the two provisions plainly reveals that the provision adopted in the 1818 constitution provides broader protection than its preconstitutional counterpart. A preconstitutional statute provided that a person could not be detained prior to conviction unless “some express Law doth allow of, or order the same”; An Act containing an Abstract and Declaration of the Rights and Privileges of the People of this State, and securing the same, ¶ 4, reprinted in Acts and Laws of the State of Connecticut, in America (1796) p. 22; which essentially restricted the discretion of courts to deny bail in a given case unless it was expressly authorized, but left the legislature free to limit the cases in which bail was allowed. Another preconstitutional statute limited the right to bail for persons charged with treason, providing that such persons could not be admitted to bail by any authority other than the court having jurisdiction over the cause. An Act for the punishment of High–Treason, and other atrocious Crimes against the State, ¶ 3 (enacted in October, 1776), reprinted in Acts and Laws of the State of Connecticut, in America, supra, at p. 420. The 1818 constitution contained no such limitation, providing for bail as a matter of right in all criminal cases not falling within the stated exception. See Conn. Const. (1818), art. I, § 14 (“[a]ll prisoners shall ... be bailable by sufficient sureties, except for capital offences, where the proof is evident, or the presumption great” [emphasis added] ). This expansion of the right to bail in criminal cases may be traced to a statute enacted in 1808, which provided that “all prisoners detained in gaol for trial, for an offence not capital, shall be entitled to bail; to be taken by one or more of the judges of the court, having cognizance of the offence.” Public Statute Laws of the State of Connecticut (1808) tit. XVII, c. II, § 1, p. 69. Contrary to our suggestion in Ayala, the fact that article first, § 14, of the 1818 Connecticut constitution more closely resembles the right to bail as expressed in the 1808 statute suggests that the framers intended the right to bail to include protections that had developed after the enactment of the provision contained in the 1750 revision of the statutory declaration of rights.This understanding is consistent with the circumstances surrounding the adoption of the 1818 constitution. Although we acknowledged in Ayala that “[t]he constitution adopted in 1818 did not create a government but gave to that which had already been established the sanction of the people and, in very general language, formulated its framework”; (internal quotation marks omitted) State v. Ayala, supra, 222 Conn. at 351, 610 A.2d 1162; we did so in suggesting that, in the absence of some express indication to the contrary, the framers of the 1818 constitution intended to incorporate the same understanding of the right to bail as that expressed in the 1750 statutory declaration of rights. As I explained, however, the meaning of the bail provisions contained in the 1818 constitution can be understood only upon review of the relevant statutory and case law leading up to and culminating in the adoption of the 1818 constitution.

General Statutes § 54–64a provides in relevant part: “(b) (1) When any arrested person charged with the commission of a felony, with certain listed exceptions ... is presented before the Superior Court, said court shall, in bailable offenses, promptly order the release of such person upon the first of the following conditions of release found sufficient to reasonably ensure the appearance of the arrested person in court and that the safety of any other person will not be endangered: (A) Upon such person's execution of a written promise to appear without special conditions, (B) upon such person's execution of a written promise to appear with nonfinancial conditions, (C) upon such person's execution of a bond without surety in no greater amount than necessary, (D) upon such person's execution of a bond with surety in no greater amount than necessary. In addition to or in conjunction with any of the conditions enumerated in subparagraphs (A) to (D), inclusive, of this subdivision, the court may, when it has reason to believe that the person is drug-dependent and where necessary, reasonable and appropriate, order the person to submit to a urinalysis drug test and to participate in a program of periodic drug testing and treatment. The results of any such drug test shall not be admissible in any criminal proceeding concerning such person.“(2) The court may, in determining what conditions of release will reasonably ensure the appearance of the arrested person in court and that the safety of any other person will not be endangered, consider the following factors: (A) The nature and circumstances of the offense, (B) such person's record of previous convictions, (C) such person's past record of appearance in court after being admitted to bail, (D) such person's family ties, (E) such person's employment record, (F) such person's financial resources, character and mental condition, (G) such person's community ties, (H) the number and seriousness of charges pending against the arrested person, (I) the weight of the evidence against the arrested person, (J) the arrested person's history of violence, (K) whether the arrested person has previously been convicted of similar offenses while released on bond, and (L) the likelihood based upon the expressed intention of the arrested person that such person will commit another crime while released.“(3) When imposing conditions of release under this subsection, the court shall state for the record any factors under subdivision (2) of this subsection that it considered and the findings that it made as to the danger, if any, that the arrested person might pose to the safety of any other person upon the arrested person's release that caused the court to impose the specific conditions of release that it imposed....”

Significantly, as a result of the 1967 legislation; see Public Acts 1967, No. 549, § 12 (P.A. 549); the General Statutes authorized courts to deny bail and order a defendant detained but expressly limited that authority to circumstances in which the court found “custody ... to be necessary to provide reasonable assurance of his appearance in court....” (Emphasis added.) P.A. 549, § 12, codified at General Statutes (Rev. to 1968) § 54–64a. This was the only time in our history that the General Statutes authorized the denial of bail other than in capital offenses, and the language was repealed in 1977. See Public Acts 1977, No. 77–452, § 39.

The provisions of Practice Book § 38–4 are similar to those of General Statutes § 54–64a (b).

See Conn.Code Evid. § 8–3(1)(B); see also State v. Pierre, 277 Conn. 42, 72, 890 A.2d 474 (“[w]hen a party's conduct indicates that the party assents to or adopts a statement made by another person, the statement is admissible against the party” [internal quotation marks omitted] ), cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006).

The Commissioner of Correction thereafter directed that the defendant be confined at Northern Correctional Institution.

Mississippi adopted its current constitution in 1890. At the time Dennis and Royalty were decided, article III, § 29, of the Mississippi constitution of 1890 provided: “Excessive bail shall not be required; and all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.” A subsequent amendment in 1995 to article III, § 29, of the Mississippi constitution of 1890 allows courts to deny bail for serious felonies provided the defendant is afforded certain procedural protections. See 1995 Miss. Laws c. 636.

Prior to filing his appeal with this court, the defendant filed a petition for bail review with the Appellate Court pursuant to Practice Book § 78a–1. The Appellate Court granted the defendant's petition but denied the relief requested therein.

The fact that In re Underwood, Truesdale and Pray were abrogated by constitutional amendment in no way undermines their persuasive force. Indeed, several states that had right to bail provisions similar to article first, § 8, amended their constitutions to provide that courts may deny bail if necessary to protect public safety. See M. Mann, supra, 24 Conn. L.Rev. at 963 and nn. 246–47 (listing such states and noting that “[t]his evidences not only recognition of pretrial detention as unconstitutional under provisions granting release in noncapital cases, but also that some of those states viewed the constitutional right to bail as precluding a public safety consideration”); see also, e.g., Mo. Const. art. I, § 32(2) (adopted in 1992). That these states saw the need to amend their constitutions before allowing preventive detention lends further support to the conclusion that article first, § 8, does not permit courts to deny bail on the ground that the accused poses a danger to others.

At a subsequent hearing to address the defendant's motion for stay of the trial court's order setting a monetary bond pending disposition of this appeal, the court elaborated on its reasons for that order. It reiterated its belief that it “retain[ed] the inherent authority to set bond and to establish conditions of release, including financial conditions, even as to insanity acquittees who are alleged to have committed new crimes during their period of insanity commitment.” The court reasoned further that a rule to the contrary “would effectively deprive the court of its right—in fact, its obligation—to set conditions of release that are necessary to ensure that the safety of other persons will not be endangered.” Moreover, according to the court, such a rule “would mean that an insanity acquittee, regardless of the frequency and seriousness of his ... new crimes committed during the commitment period, would be free to commit those crimes, confident that he would be ultimately returned to the same facility to be placed, again, among the same staff and same patients that [he allegedly] victimized in the first instance.” The court observed that the defendant allegedly committed seven assaults on seven separate people at seven different times.

At this hearing, the trial court denied the defendant's request for either an automatic or a discretionary stay, and the defendant thereafter filed with this court a motion for review of the trial court's order. See Practice Book §§ 61–13, 61–14 and 66–6. We granted the motion for review but denied the relief requested therein.

See Ill. Const. (1870), art. II, § 7 (“[a]ll persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great”).

The trial court further explained that, as authorized by Practice Book § 38–4(b), it had considered the defendant's history of violence and the risk posed to the physical safety of the staff and other patients at the hospital, and had concluded that financial conditions of release were necessary to ensure their safety. Moreover, the court indicated that it had considered the rights of victims afforded by the state constitution, particularly their right to be protected from an accused. Additionally, the court reasoned that, even if the defendant had a right to psychiatric treatment, it was not an unqualified and inalienable right to a certain type of treatment, and the nature of the treatment afforded to him had to be determined with reference to the management issues that he presented, with his interests weighed against the interests of other patients who also were entitled to treatment. Finally, the court noted that, pursuant to its order, the defendant was to receive psychiatric treatment while in the custody of the Commissioner of Correction, and correction officials remained free to consult with the hospital and the board regarding that treatment. The defendant's appeal to this court followed.

Article first, § 8, of the constitution of Connecticut, as amended by article seventeen and twenty-nine of the amendments, provides in relevant part: “In all criminal prosecutions, a victim ... shall have ... the right to be reasonably protected from the accused throughout the criminal justice process....”

The Illinois Supreme Court subsequently concluded that the denial of bail when it is “necessary to prevent fulfillment of the threat [on] which the charge is based” does not violate the state constitutional right to bail. People v. Bailey, 167 Ill.2d 210, 240, 212 Ill.Dec. 608, 657 N.E.2d 953 (1995).

The defendant claims on appeal that the trial court's order setting a monetary bond as a condition of release and, because he was unable to post that bond, his subsequent transfer to the custody of the Commissioner of Correction were in violation of his constitutional rights, namely, his right to bail under the state constitution and his right to procedural due process under the federal constitution. For the reasons we explain hereinafter, we disagree with each of these claims. We further conclude that the defendant's remedy, if he believes that the mental health treatment he is receiving while in the custody of the Commissioner of Correction is constitutionally inadequate, is through an expedited petition for a writ of habeas corpus challenging the conditions of his confinement.

I

The defendant claims first that the trial court's imposition of a monetary bond as a condition of his release violated his right to bail as guaranteed by article first, § 8, of the constitution of Connecticut. According to the defendant, under the circumstances of this case, the court's setting of a monetary bond pursuant to § 54–64a and Practice Book § 38–4 amounted to impermissible preventive detention. Specifically, the defendant contends, the fundamental purpose of bail is to ensure the subsequent appearance of the accused and not to protect the public from a dangerous accused. The defendant argues that, because, as a confined insanity acquittee, his appearance in court essentially was assured, the court's setting of a monetary bond was not permissible. We do not agree.

The defendant also argues that public policy reasons should exempt him from the imposition of a monetary bond and consequent incarceration for his inability to post that bond because, by virtue of his status as an insanity acquittee, he is mentally ill and requires treatment at the hospital. As we discuss more fully in part II of this opinion, there are competing public policy objectives that require a balancing of the interests of the defendant, the state and crime victims. In the end, the temporary incarceration of the defendant, while not a perfect solution, best serves the interests of all of the affected parties.

Article II, § 24, of the Missouri constitution of 1875 provides in relevant part: “[A]ll persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.”

We begin with the applicable standard of review. Typically, “[t]he determination of an appropriate pretrial bond is a matter within the sound discretion of the trial court”; (internal quotation marks omitted) State v. McDowell, 241 Conn. 413, 415, 696 A.2d 977 (1997); and appellate review of an order setting such a bond is limited to consideration of whether the trial court abused its discretion. See id. To the extent the defendant's claim requires us to construe either the meaning or applicability of constitutional or statutory provisions, however, our review is plenary. See, e.g., Rodriguez v. Testa, 296 Conn. 1, 7, 993 A.2d 955 (2010). Additionally, we conduct our review of the defendant's claim that § 54–64a was unconstitutionally applied to him “mindful that legislative enactments carry with them a strong presumption of constitutionality.... Consequently, a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) Hammond v. Commissioner of Correction, 259 Conn. 855, 876, 792 A.2d 774 (2002).

Article first, § 8, of the constitution of Connecticut guarantees certain rights to an accused person in “all criminal prosecutions,” including the right “to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great....” This court has interpreted the constitutional bail provision strictly, concluding that, “in all cases, even capital cases not falling within the [stated] exception, bail in a reasonable amount should be ordered.” State v. Menillo, 159 Conn. 264, 269, 268 A.2d 667 (1970); see also State v. Ayala, 222 Conn. 331, 342–43, 610 A.2d 1162 (1992) (“[a criminal] defendant has a fundamental constitutional right to bail pending trial in all [cases] but [those involving] certain capital offenses”).

Although we indicated in Menillo that the primary purpose of bail is to secure an accused person's presence at trial; State v. Menillo, supra, 159 Conn. at 269, 268 A.2d 667; we later acknowledged, after reviewing Connecticut's unique constitutional history, the additional customary purpose of ensuring a defendant's good behavior during the pretrial period. See State v. Ayala, supra, 222 Conn. at 350–51, 610 A.2d 1162; cf. State v. Bates, 140 Conn. 326, 330, 99 A.2d 133 (1953) (“ ‘[u]pon admission to bail,’ ” accused remains within constructive custody of law).

As we subsequently observed, a bail bond “constitutes a contract that can be forfeited, not only upon the defendant's failure to appear, but also upon breach of other conditions in the agreement.” (Emphasis added.) State v. Garvin, 242 Conn. 296, 305, 699 A.2d 921 (1997); see also United States v. Gigante, 85 F.3d 83, 85 (2d Cir.1996) (approving bail condition requiring forfeiture of bail collateral if defendant committed new crime during release).

Article II, § 25, of the Missouri constitution of 1875 provides in relevant part: “[E]xcessive bail shall not be required....”

As we explained in Ayala, Connecticut's constitutional bail provision, which first appeared in the constitution of 1818 in substantially similar form, has deep roots in our preconstitutional history. See State v. Ayala, supra, 222 Conn. at 349–50, 610 A.2d 1162. A right to bail provision first appeared in a 1672 legislative enactment and, by 1750, was included in our statutory declaration of rights, where it remained until the creation of a constitutional declaration of rights in article first of the 1818 constitution. See id., at 350–51, 610 A.2d 1162. The preconstitutional provision declared that “no man's person shall be restrained, or imprisoned, by any authority whatsoever, before the law hath sentenced him thereunto, if he can and will give sufficient security, bail, or mainprize for his appearance and good behaviour in the mean time, unless it be for capital crimes, contempt in open court, or in such cases wherein some express law doth allow of, or order the same.” (Emphasis added.) Public Statute Laws of the State of Connecticut (1808) tit. I, § 4, p. 24. Neither the 1818 constitution nor any subsequent constitution made any express reference to either appearance or good behavior as a purpose of bail. State v. Ayala, supra, at 350–51, 610 A.2d 1162. As we observed in Ayala, however, there is “no evidence ... that the framers of the 1818 constitution intended to abandon the customary purposes of bail that were in effect at the time of the adoption of the constitution and had been for at least 145 years”; id., at 351, 610 A.2d 1162; particularly because the 1818 constitution was intended to enshrine rights already in existence by virtue of statute and the common law. See id.

See Conn. Const. (1818), art. I, § 14 (“[a]ll prisoners shall, before conviction, be bailable by sufficient sureties, except for capital offences, where the proof is evident, or the presumption great”).

Significantly, even after Missouri amended its constitution in 1992 to provide that bail may be denied “upon a showing that the defendant poses a danger to a crime victim, the community, or any other person”; Mo. Const. art. I, § 32(2); the Supreme Court of Missouri nevertheless concluded that this provision, while authorizing courts to deny bail when the requisite showing is made, does not “permit [the] use of bail to keep a defendant from being released.” State v. Jackson, 384 S.W.3d 208, 215 (Mo.2012).

In determining the meaning of provisions in our state constitution, we have considered, among other things, the language of their historical antecedents. See, e.g., State v. Lamme, 216 Conn. 172, 178–79, 579 A.2d 484 (1990).

The Supreme Judicial Court of Massachusetts also has concluded that setting a monetary bond that a defendant cannot post, on the basis of his perceived dangerousness, constitutes preventive detention, and, pursuant to Salerno, a statutory scheme that allows courts to set bond for that purpose without providing sufficient procedural protections violates the due process clause of the fourteenth amendment. See Aime v. Commonwealth, 414 Mass. 667, 680, 611 N.E.2d 204 (1993); see also footnote 7 of this opinion. The Massachusetts constitution, unlike our own, does not expressly guarantee the right to bail, but only provides that excessive bail may not be required. See Mass. Const. pt. 1, art. XXVI. A previous iteration of that state's statutory bail provisions required courts to refuse to release a defendant without surety, and, instead, to require a bond with surety, if it found the defendant posed a danger to the community. Aime v. Commonwealth, supra, at 670, 611 N.E.2d 204. The court rejected the commonwealth's argument that the statutory scheme did not purport to establish a system of preventive detention because, even though it did not expressly provide for the denial of bail, it nevertheless “accomplish[ed] this goal through the use of the surety [that] an arrestee must post in order to be admitted to bail.” Id., at 676, 611 N.E.2d 204. The court concluded that, pursuant to Salerno, the bail provisions in question violated the fourteenth amendment because “[a] [s]tate may not enact [preventive] detention schemes without providing safeguards similar to those which Congress incorporated into the Bail Reform Act [of 1984].” Id., at 680, 611 N.E.2d 204. The Massachusetts legislature subsequently enacted a scheme similar to the federal Bail Reform Act of 1984, which the court upheld in Mendoza v. Commonwealth, 423 Mass. 771, 773, 673 N.E.2d 22 (1996).

Although the state's preconstitutional declaration of rights was statutory in form, it was “treated by both the legislature and the people as standing above ordinary statutes. The [d]eclaration and supplementary statutes relating to individual rights were grounded in the Connecticut common law and viewed as inviolate.” (Footnote omitted.) C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L.Rev. 87, 94 (1982).

I therefore disagree with the majority that there is no difference, for constitutional purposes, between the limited detention authorized under the peace bond statutes and the use of bail to detain a defendant, on the ground that he poses a danger to others, from his arrest until trial.

In Ayala, we also reviewed Connecticut's bail statutes following the enactment of the 1818 constitution and noted that they initially, like the new constitutional provision, were silent as to the purposes of bail. See id.; see also Public Statute Laws of the State of Connecticut (1839) tit. XX, c. I, § 126, p. 173; Public Statute Laws of the State of Connecticut (1821) tit. 22, § 97, p. 171. In 1849, however, language was added to provide that bail was conditioned on a defendant's appearance in court, and that language remained in the statutes thereafter. State v. Ayala, supra, 222 Conn. at 351, 610 A.2d 1162; see Revised Statutes of the State of Connecticut (1849) tit. VI, c. XII, § 163, pp. 259–60. We then referred to the addition to the General Statutes of nonfinancial conditions of release in 1981 and concluded that the use of those conditions, “in addition to or in lieu of bond,” had “broadened the focus of the purposes of bail to recognize, once again, that bail is a method for ensuring a defendant's good behavior while on release,” as well as a method of securing his appearance in court. State v. Ayala, supra, at 351, 610 A.2d 1162.

Ayala mistakenly identifies the year in which such language first appears as 1949, rather than 1849. See State v. Ayala, supra 222 Conn. at 351, 610 A.2d 1162; see also Revised Statutes of the State of Connecticut (1849) tit. VI, c. XII, § 163, pp. 259–60.

This is not to say that there would be no constitutional objection to detaining a person for failing to post a peace bond. In fact, several courts in our sister states have concluded, on various grounds, that it is unconstitutional to detain a person who is unable to post a monetary bond set in a peace bond proceeding. See, e.g., Ex parte James, 53 Ala.App. 632, 644, 303 So.2d 133 (incarceration of indigent petitioner by virtue of his inability to post peace bond violated equal protection clause of fourteenth amendment to United States constitution), cert. quashed, 293 Ala. 759, 303 So.2d 145 (Crim.1974); Santos v. Nahiwa, 53 Haw. 40, 42, 487 P.2d 283 (1971) (incarceration of indigent petitioner by virtue of his inability to post peace bond violated equal protection of laws and petitioner's substantive due process rights because statutory scheme failed to require proof of guilt beyond reasonable doubt); Kolvek v. Napple, 158 W.Va. 568, 575, 212 S.E.2d 614 (1975) (incarceration of indigent person based on his inability to post peace bond violated equal protection clause of fourteenth amendment to United States constitution); see also State v. Weller, 152 Vt. 8, 15–16, 563 A.2d 1318 (1989) (expressing concern that peace bond was imposed “as a form of bail for preventive incarceration” but declining to reach constitutional issues after concluding that court imposed peace bond without affording defendant process required by statute).

Further research into Connecticut's statutory history provides additional support for the notion that the imposition of a bond for the purpose of ensuring public safety is a constitutionally sound practice. Specifically, both prior to and following the adoption of the 1818 constitution, justices of the peace were statutorily authorized to require persons accused of certain disruptive or violent behaviors to provide sureties of “the peace and good behavior,” and to imprison those who failed to provide the ordered security. Public Statute Laws of the State of Connecticut (1821) tit. 21, § 36, pp. 147–48; see also Public Statute Laws of the State of Connecticut (1808) tit. CXXV, c. I, §§ 4–6, pp. 545–46. The historical notes to the 1808 provision indicate that statutory authority for sureties of the peace and good behavior has existed since 1698. Public Statute Laws of the State of Connecticut (1808) tit. CXXV, c. I, §§ 4 and 5, p. 546 nn. 4 and 5; see also Sturges v. Sherwood, 15 Conn. 149, 151 (1842). This court has explained that the “proceedings authorized [under these statutory provisions] were intended to prevent the commission of a crime anticipated, rather than to punish a crime committed.” Sturges v. Sherwood, supra, at 151. Provisions for sureties of the peace and good behavior were carried forward in each subsequent revision of the General Statutes, and, in fact, statutory authority for a trial court to order them exists today. See General Statutes § 54–56f. The presence of statutes authorizing sureties of the peace and good behavior both prior to, and since, the adoption of the 1818 constitution, along with statutes authorizing bail to ensure a defendant's appearance, clearly establishes that both purposes are constitutionally acceptable reasons for a court to require financial security from an accused individual.

Contemporaneous case law illustrates the use of sureties of the peace to ensure good behavior and to protect public safety. See Sturges v. Sherwood, 15 Conn. 149, 149 (1842) (preliminary statement of facts and procedural history) (defendant, who had assaulted complainant and then threatened to harm him, was required to post $750 bond); Darling v. Hubbell, 9 Conn. 350, 351 (1832) (preliminary statement of facts and procedural history) (defendant, who was accused of maintaining house of bawdry and ill fame, was required to post $40 bond).

I disagree with the majority's contention that sureties of the peace “are not truly separate and apart” from bail. Footnote 28 of the majority opinion. That the sureties of the peace statute eventually was included within the same chapter of the General Statutes as the provisions governing the administration of bail provides scant support for the contention such sureties were considered to be a form of bail at the time of the 1818 constitution. In fact, in the first revision of the statutes following the adoption of the 1818 constitution, the statute providing for sureties of the peace was included within the title setting forth the powers and duties of the courts; see Public Statute Laws of the State of Connecticut (1821) tit. 21, § 36, pp. 147–48; whereas the statutes governing bail were included within the title that defined crimes and regulated criminal procedure. See Public Statute Laws of the State of Connecticut (1821) tit. 22, §§ 97, 99 and 100, pp. 171–72. The sureties of the peace statute was not transferred to the title dealing with criminal procedure until the 1839 statutory revision. See Public Statute Laws of the State of Connecticut (1839) tit. XX, c. I, § 124, pp. 172–73. Consistent with this view, authorities on this issue have stated that sureties of the peace are not a form of bail but, rather, a special, limited procedure for preventing a person who appears to pose a specific threat of future harm from carrying out that threat. See L. Tribe, supra, 56 Va. L.Rev. 406 (noting availability of sureties of peace for “those who threaten specific crimes, either verbally or by repeated efforts” and that such persons “present a separate problem unrelated to the pendency of a criminal charge and [do] not [require] sweeping governmental authority to detain for generalized dangerousness”); S. Childress, “Peace Bonds—Ancient Anachronisms or Viable Crime Prevention Devices?,” 21 Am. J.Crim. L. 407,414 (1994) (observing that most courts that have addressed issue have concluded that peace bond proceedings are not criminal proceedings).

General Statutes § 54–56f provides in relevant part: “Any judge of the Superior Court may, from his personal knowledge or upon complaint of another, require sureties of the peace and good behavior from any person who threatens to beat or kill another or resists or abuses any officer in the execution of his office or contends with angry words or, by any unlawful act, terrifies or disturbs any person. When any person complains on oath to a judge of the Superior Court that he has just cause to fear that another will imprison, beat or kill the complainant, or procure others to do so, and that he is under fear of bodily harm, such judge may, if he believes such person has just cause for such fear, require sureties of the peace and good behavior from the person so complained of. Upon refusal of the person so required to find sureties of the peace in any of such cases, such judge may commit him to a community correctional center to remain until he is discharged by due course of law or until the next term of the superior court having criminal jurisdiction in such judicial district, which may make further order relating to the subject matter of any such offense....” (Emphasis added.).

The dissent does not acknowledge the long-standing existence in Connecticut of statutory provisions authorizing sureties of the peace and good behavior until nearly the conclusion of a lengthy analysis that relies heavily on dicta and case law from other jurisdictions. According to the dissent, these provisions are not relevant because they are not part of the criminal law, and our constitutional bail provision applies only to criminal prosecutions. That assertion is belied by (1) the inclusion of General Statutes § 54–56f in title 54 of the General Statutes, which governs criminal procedure, and in chapter 960 of the General Statutes, which addresses information, procedure and bail, and (2) the directive of § 54–56f to commit one who fails to provide surety to a community correctional center until legally discharged or “until the next term of the superior court having criminal jurisdiction....” (Emphasis added.) Moreover, pursuant to § 54–64a (c)(4), a court imposing conditions of release on an arrested person is explicitly authorized to order that person to provide a surety of the peace pursuant to § 54–56f. Finally, as the dissent acknowledges, this court has described surety of the peace statutes as “criminal in ... nature.” In re Bion, 59 Conn. 372, 383, 20 A. 662 (1890). In re Bion was a habeas action brought after the petitioner was jailed for failing to provide a surety of the peace in connection with a criminal matter. See id., at 372, 374, 20 A. 662 (preliminary statement of facts and procedural history). In that case, the surety at issue was conditioned on both the petitioner's future appearance before the court and the requirement “that in the meantime he keep the peace and be of good behavior to all the citizens of the state, and especially [toward] the ... [complainant]....” Id., at 374, 20 A. 662 (preliminary statement of facts and procedural history). In an aside, the decision references the constitutional bail provision and notes that, in that case, the “bail” was challenged as “excessive” and subsequently reduced. Id., at 389, 20 A. 662; see also id., at 375, 20 A. 662 (preliminary statement of facts and procedural history). The foregoing demonstrates that Connecticut's statutes governing bail and sureties of the peace are not truly separate and apart, as the dissent suggests, with constitutional strictures applying to one but not the other.The dissent contends variously that “there is no indication in either the pre–1818 or post–1818 statutes that courts were authorized to set a monetary bond to protect the public from a defendant perceived to pose a safety risk,” that “for more than 150 years after the adoption of the 1818 constitution, no Connecticut statute authorized a court to consider public safety in determining whether to release a defendant on bail until the current language was added to § 54–64a in 1990,” and that, “[t]hroughout the history of Connecticut jurisprudence, there is not a single case in which a Connecticut court has indicated that a monetary bond may be set in a criminal case for the purpose of protecting public safety.” In light of the consistent, unbroken inclusion of provisions authorizing sureties of the peace and good behavior in Connecticut's statutes from 1698 until today, and case law evidencing their usage; see footnote 26 of this opinion; the dissent's repeated assertions to the contrary are inaccurate.Finally, even if, as the dissent contends, sureties of the peace truly are creatures distinct from bonds for appearance, the distinction would do little to advance the defendant's claim. It would be irrational to conclude that a court constitutionally is authorized to detain, for the inability to provide financial security, an individual not charged with any crime, who poses a threat to a particular person, but not to detain, for the inability to provide financial security, a person who has been charged with a felony and likely poses a danger to the general public. If the constitution permits the former, it necessarily must permit the latter, even if, for a time, the statutes governing bail did not explicitly contemplate consideration of the risk that a defendant would pose a danger to others.

Consistent with these dual purposes, bail reform measures were undertaken in 1990 and resulted in the amendment of statutes governing bail and pretrial release. Specifically, § 54–64a was amended to require trial courts, when setting nonfinancial and financial conditions of release for individuals charged with most felonies, to consider “what conditions of release will reasonably assure the appearance of the arrested person in court and that the safety of any other person will not be endangered....” (Emphasis added.) Public Acts 1990, No. 90–213, § 51 (P.A. 90–213), codified as amended at General Statutes (Rev. to 1991) § 54–64a (b)(2). As part of the same public act, the legislature added § 54–64f, which, in certain cases, provides for the revocation of an accused's pretrial release if there is an adequate showing that he or she has violated the conditions previously imposed “and that the safety of any other person is endangered while the [accused] is on release....” (Emphasis added.) P.A. 90–213, § 53, codified at General Statutes (Rev. to 1991) § 54–64f (b).

I agree with the dissent that the trial court could have elected to revoke the defendant's release in an earlier case pursuant to § 54–64f. That, however, is not the issue before us.

In State v. Ayala, supra, 222 Conn. at 331, 610 A.2d 1162, after concluding that bail in Connecticut historically had served dual purposes; see id., at 349–53, 610 A.2d 1162; we upheld the application of § 54–64f against a challenge under article first, § 8, by a defendant whose pretrial release had been revoked upon his arrest for the commission of new, violent crimes. See id., at 333–35, 353, 610 A.2d 1162. We reasoned, additionally, that the defendant's constitutional right to bail had not been infringed because he initially had been released on bail, although he ultimately, by virtue of his more recent criminal behavior, had forfeited his right to be released. Id., at 348–49, 610 A.2d 1162.

Approximately five years before this court decided Ayala, the United States Supreme Court held that protecting the public from particularly dangerous individuals, pursuant to the federal Bail Reform Act of 1984 (act), 18 U.S.C. § 1341 et seq., was a constitutionally permissible reason for the outright pretrial detention, without the possibility of bail, of certain accused individuals. See United States v. Salerno, 481 U.S. 739, 753–55, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Unlike article first, § 8, however, the eighth amendment to the United States constitution does not explicitly provide fora right to bail but only provides that “[e]xcessive bail shall not be required....” U.S. Const.amend. VIII. In Salerno, the United States Supreme Court confirmed, as a preliminary matter, that the eighth amendment does not confer an absolute right to bail but guarantees only that, if bail is imposed, it cannot be excessive. United States v. Salerno, supra, at 754, 107 S.Ct. 2095.

In light of the foregoing, we conclude that the defendant's constitutional challenge must fail. To begin, the defendant was not actually denied bail but, rather, was unable to post the bail that the trial court, in its discretion, properly set. Accordingly, as in Ayala, the defendant in this case was afforded the opportunity for release that constitutionally was required. Although the defendant suggests that the amount of bail that the trial court set was unreasonable due to his indigence, it is established that “a reasonable amount [of bail] is not necessarily an amount within the power of an accused to raise” but, rather, an amount that is reasonable under all of the relevant circumstances. State v. Menillo, supra, 159 Conn. at 269, 268 A.2d 667. Additionally, when setting bail, the trial court properly considered the factors set forth in § 54–64a (b)(2) and how those factors bore on the issue of the danger that the defendant posed to other persons. In other words, the court correctly considered the need to ensure the safety of others, regardless of whether the defendant was a potential flight risk. The defendant was charged with a felony in connection with his alleged assault of and harm to a health-care worker after recently accruing a string of misdemeanor and felony charges for similar conduct directed at multiple victims on multiple occasions, over a period of time spanning less than one year. Pursuant to the statutory directive, and consistent with Ayala, the court concluded that “[t]he nature and circumstances of the offense”; General Statutes § 54–64a (b)(2)(A); “the number and seriousness of charges pending against the [defendant]”; General Statutes § 54–64a (b)(2)(H); and “the [defendant's] history of violence”; General Statutes § 54–64a (b)(2)(J); suggested that he continued to pose a serious risk to the safety of staff and patients at the hospital, particularly the victims of the assaults for which he had been charged, who constitutionally were entitled to be protected from him. See Conn. Const.amend. XXIX (victim of crime has “the right to be reasonably protected from the accused throughout the criminal justice process”). Accordingly, the trial court acted within its discretion in requiring a substantial monetary bond as a condition of the defendant's release.

Because the trial court set a bond, much of the authority on which the defendant relies, which involves state constitutional provisions similar to Connecticut's, is readily distinguishable or otherwise does not support his claim. See Martin v. State, 517 P.2d 1389, 1390–91, 1397–98 (Alaska 1974) (finding unconstitutional preventive detention as to one appellant, who had been refused bail entirely, but not as to other two appellants, and, of those two, one was detained after conviction because he had violated his probation and other was held when nonfinancial condition of pretrial release was not met); In re Underwood, 9 Cal.3d 345, 346–47, 508 P.2d 721, 107 Cal.Rptr. 401 (1973) (concluding that trial court's complete denial of petitioner's opportunity to post bail on ground that he posed danger to community violated his constitutional right to bail); State v. Pray, 133 Vt. 537, 542, 346 A.2d 227 (1975) (holding that complete denial of bail to defendants on ground that they posed danger to public was unconstitutional); see also Rendel v. Mummert, 106 Ariz. 233, 238–39, 474 P.2d 824 (1970) (upholding revocation of bail for petitioner's commission of new offenses, in comparison to “outright [pretrial] detention, [for which] no bail is allowed in the first instance”); Mello v. Superior Court, 117 R.I. 578, 581–85, 370 A.2d 1262 (1977) (upholding revocation of bail for defendant's commission of new crimes while on pretrial release, reasoning, in part, that defendant had not been denied bail in first instance, as constitutionally required).The defendant further relies on United States v. Melendez–Carrion, 790 F.2d 984, 988, 1004 (2d Cir.), cert. dismissed, 479 U.S. 978, 107 S.Ct. 562, 93 L.Ed.2d 568 (1986), for the proposition that safeguarding the community from a dangerous person is a constitutionally impermissible justification for pretrial preventive detention. He contends that, consistent with the historical analysis embraced by that decision, trial courts setting conditions of release should not consider public safety in general, but only whether the accused is likely to disrupt the trial process by intimidating or injuring witnesses or jurors. The reasoning of Melendez–Carrion was rejected, however, by the United States Supreme Court in Salerno. See United States v. Salerno, 481 U.S. 739, 748–51, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Additionally, the defendant's contention is belied by the factual context of State v. Ayala, supra, 222 Conn. at 331, 610 A.2d 1162, against which the holding of that case must be read. In Ayala, the defendant's release was revoked not for intimidating or injuring a witness or juror but for the commission of a new and unrelated assault on a stranger. See id., at 336, 610 A.2d 1162.

The dissent articulates its belief that the state constitution does not permit preventive detention. While preventive detention is permitted in certain instances in the federal system, I agree that it is not permitted under our state constitution except in capital cases. The bond in this matter was set at $100,000. Notably, the defendant has not asserted a claim under the eighth amendment to the United States constitution or the portion of article first, § 8, prohibiting the imposition of “excessive bail....” Moreover, if the defendant believes that the amount of the bond that the trial court set was more than necessary to ensure public safety, he may, at any time, file a motion to modify the conditions of his release pursuant to General Statutes § 54–69(a).

In sum, the trial court properly set a monetary bond as a condition of the defendant's release as a means to ensure the safety of other persons. We conclude, therefore, that the trial court did not deny the defendant his right to bail under article first, § 8, of the constitution of Connecticut. We now turn to the defendant's remaining claim on appeal.

II

In his initial brief to this court, the defendant claimed that his transfer from the hospital to prison, that is, from the jurisdiction of the board to the custody of the Commissioner of Correction, violated his rights to both substantive and procedural due process. According to the defendant, he had certain treatment rights by virtue of his status as an insanity acquittee, and by virtue of certain statutes, regulations and case law governing such persons, and he wrongfully was deprived of those rights as a result of his transfer to the custody of the Commissioner of Correction after his alleged commission of additional crimes and his failure to post bond. The defendant contended further that the transfer was effected without appropriate procedural safeguards, because no explicit statutory mechanism or jurisprudential guidance exists to govern the transfer of an insanity acquittee to a correctional facility on the ground that he poses a danger to others. He suggested that, at a minimum, a full evidentiary hearing is necessary, at which there could be consideration of his treatment rights and the hospital's ability to house him safely. In his reply brief and at oral argument, however, the defendant conceded that the treatment rights to which he had referred were not absolute, and he clarified that his challenge was to the procedures that had been employed to deprive him of those rights. Accordingly, we consider his substantive due process claim to be abandoned. With respect to the defendant's procedural due process claim, the state contends that the defendant has not established any constitutional violation because, while represented by counsel, he had multiple hearings, including a bond hearing at which the relevant factors were considered, and expedited appellate review, which he pursued, and there were other procedures available to him through which he could have contested the necessity of his detention but did not. We agree with the state.

The due process clause of the fourteenth amendment to the United States constitution provides that no state shall “deprive any person of life, liberty or property, without due process of law....” The United States Supreme Court has held that the due process clause “protects individuals against two types of government action. So-called substantive due process prevents the government from engaging in conduct that shocks the conscience ... or interferes with rights implicit in the concept of ordered liberty.... When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner.... This requirement has traditionally been referred to as procedural due process.” (Citations omitted; internal quotation marks omitted.) United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

See General Statutes § 17a–599 (“[a]ny acquittee found so violent as to require confinement under conditions of maximum security shall not be confined in any hospital for psychiatric disabilities ... unless such hospital ... has the trained and equipped staff, facilities or security to accommodate such acquittee”).

As an additional basis for his procedural due process claim, the defendant argues that he had a liberty interest in avoiding transfer from the hospital to Northern Correctional Institution (Northern), a maximum security facility, because that transfer constituted “ ‘a major change in his conditions of confinement amounting to a grievous loss,’ ” and he wrongfully was deprived of that interest without due process. The defendant cites, among other cases, Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), in support of his argument. According to the defendant, the detrimental effects of such a facility on a mentally ill individual are a necessary consideration in any transfer decision, such that procedural safeguards are required. We decline to consider this argument because it is unsupported by any competent evidence in the record regarding the actual conditions of confinement to which the defendant, a pretrial detainee, is subject at Northern, and how they differ from the conditions to which he was subject at the hospital. Compare Scarver v. Litscher, 434 F.3d 972, 973–74 (7th Cir.2006) (relying on factual findings regarding facility conditions made during preliminary injunction hearing held by District Court), with Romero v. Schauer, 386 F.Supp. 851, 855 and n. 5 (D.Colo.1974) (making factual findings based on testimony concerning differences between facilities). We disagree with the defendant that we appropriately may consider this issue by relying on law review articles, or on factual findings from extra-jurisdictional cases concerning the conditions at different correctional facilities at different points in time. This court repeatedly has drawn the distinction between the proper use of extra-record materials, such as social science texts or journal articles, as “legislative facts ... which help determine the content of law and policy, and adjudicative facts ... concerning the parties and events of a particular case.... Legislative facts may be judicially noticed [on appeal] without affording the parties an opportunity to be heard, but adjudicative facts, at least if central to the case, may not.” (Citation omitted; internal quotation marks omitted.) State v. Edwards, 314 Conn. 465, 478–79, 102 A.3d 52 (2014). For similar reasons, we cannot rely on most of the material cited by the Office of Protection and Advocacy for Persons with Disabilities in its amicus brief, much of which purports to describe conditions in the most restrictive level of the administrative segregation unit at Northern. Notably, there is no evidence to indicate that the defendant, a pretrial detainee, has been placed in this unit. Rather, the records of the Department of Correction that defense counsel submitted to the trial court in connection with the defendant's motion to stay indicated that, upon admission to Northern, the defendant was assigned to the general population with full privileges.

We begin with the well settled general principles governing a procedural due process claim. “[F]or more than [one] century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard.... Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.... Instead, due process is a flexible principle that calls for such procedural protections as the particular situation demands.” (Internal quotation marks omitted.) Barros v. Barros, 309 Conn. 499, 507–508, 72 A.3d 367 (2013). For this reason, a due process analysis is “inherently fact-bound” and focused on the particular circumstances of the case at hand. (Internal quotation marks omitted.) State v. Long, 268 Conn. 508, 523, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S.Ct. 424, 160 L.Ed.2d 340 (2004).

“Due process analysis begins with the identification of the life, liberty or property interest at stake.” State v. Campbell, 224 Conn. 168, 181, 617 A.2d 889 (1992), cert. denied, 508 U.S. 919, 113 S.Ct. 2365, 124 L.Ed.2d 271 (1993). In order to prevail on a fourteenth amendment procedural due process claim based on the deprivation of a liberty interest, a party must establish: “(1) [a] liberty interest [that] falls within the protection of the due process clause; (2) [that] he has been deprived of that interest; and (3) [that] the deprivation has occurred without due process of law.” Id., at 182, 617 A.2d 889.

The liberty interest that the defendant claims derives from provisions of Connecticut statutes governing insanity acquittees and the hospitalization of mentally ill persons. Specifically, the defendant cites his right to be treated at the hospital, a maximum security psychiatric facility, as a result of his acquittal by reason of mental disease or defect and the board's subsequent determinations; see General Statutes § 17a–561 (“[t]he Whiting Forensic Division of the Connecticut Valley Hospital shall exist for the care and treatment of inter alia, (1) patients with psychiatric disabilities, confined in facilities under the control of the Department of Mental Health and Addiction Services, who require care and treatment under maximum security conditions”); and the statutory bill of rights for psychiatric patients (patient bill of rights); see General Statutes §§ 17a–540 through 17a–550; which we have held is not applicable to inmates receiving mental health services in correctional institutions. Wiseman v. Armstrong, 269 Conn. 802, 812, 850 A.2d 114 (2004). But cf. id., at 824, 850 A.2d 114 (indicating that §§ 17a–540 through 17a–550 nevertheless would be applicable to patients receiving treatment in facilities such as “Whiting Forensic Division of the Connecticut Valley Hospital”).

The defendant also mentions the right to be overseen by the board, citing various provisions of the statutes governing that body; see General Statutes §§ 17a–582, 17a–592 and 17a–599; and jurisprudence discussing the board's function and expertise. We do not consider this claimed right as a part of our due process analysis, however, because it is not clear from the record that the defendant, although temporarily in the physical custody of the Commissioner of Correction, has been deprived of board oversight. See, e.g., State v. Campbell, supra, 224 Conn. at 182, 617 A.2d 889 (requiring showing of deprivation of claimed liberty interest to establish due process violation); see also State v. Lindo, 110 Conn.App. 418, 424, 955 A.2d 576 (inmate at correctional institution remained under jurisdiction of board for purposes of recommitment hearing), cert. denied, 289 Conn. 948, 960 A.2d 1038 (2008). We note in this regard that insanity acquittees who are eligible for conditional release or temporary leave from confinement, and who therefore are not housed in a psychiatric hospital in the physical custody of the Commissioner of Mental Health and Addiction Services, nevertheless remain under the jurisdiction of the board. See generally General Statutes §§ 17a–584 through 17a–591. Moreover, as the trial court observed in denying the defendant's motion for stay, officials at Northern Correctional Institution are free to consult with the board regarding the defendant's treatment.

It is well established that “[l]iberty interests protected by the [f]ourteenth [a]mendment may arise from two sources—the [d]ue [p]rocess [c]lause itself and the laws of the [s]tates.” (Internal quotation marks omitted.) State v. B.B., 300 Conn. 748, 752, 17 A.3d 30 (2011). Even when there is no inherent constitutional guarantee to a particular right, “[o]nce a state provides its citizens with certain statutory rights beyond those secured by the constitution itself, the constitution forbids the state from depriving individuals of those statutory rights without due process of law.” (Internal quotation marks omitted.) Id., at 753, 17 A.3d 30. We agree that, given the defendant's status as an insanity acquittee and the determinations of the board that followed his acquittal, the statutory provisions he has cited create a right to, or justifiable expectation in, his treatment at the hospital and certain protections regarding the contours of that treatment that may not be available to him during his temporary period of pretrial detention. Accordingly, he has stated a cognizable liberty interest, of which he cannot be deprived without due process of law. See, e.g., id., at 754–55, 17 A.3d 30; see also Vitek v. Jones, 445 U.S. 480, 488–89, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (“[o]nce a [s]tate has granted ... a liberty interest [via statute] ... due process protections are necessary to [e]nsure that the state-created right is not arbitrarily abrogated” [internal quotation marks omitted] ).

The United States Supreme Court has held that involuntarily committed individuals “are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo ex rel. Romeo, 457 U.S. 307, 322, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); see also id., at 321–24, 102 S.Ct. 2452 (examining rights of involuntarily committed mentally retarded persons). Specifically, such individuals enjoy “constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required [to effectuate] these interests.” Id., at 324, 102 S.Ct. 2452. Because Connecticut statutes provide a higher level of protection to involuntarily committed insanity acquittees, we analyze the defendant's due process claim with reference to those provisions.We further emphasize that the right of the defendant, as an insanity acquittee, to be free from punishment does not truly differentiate him from any other pretrial detainee who has not yet been convicted of a crime. See Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“under the [d]ue [p]rocess [c]lause, a [pretrial] detainee may not be punished prior to an adjudication of guilt in accordance with due process of law”). It is established that pretrial detention, although undoubtedly a significant restriction on liberty, does not constitute punishment but, rather, permissible government regulation of the pretrial process. See id., at 536–37, 99 S.Ct. 1861; see also United States v. Salerno, supra, 481 U.S. at 747, 107 S.Ct. 2095.

Once a protected liberty interest is identified, we must determine the nature and extent of the process that is due. “Due process analysis requires balancing the government's interest in existing procedures against the risk of erroneous deprivation of a private interest inherent in those procedures.... All that is necessary is that the procedures be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard ... to [e]nsure that they are given a meaningful opportunity to present their case.... Under this analysis, the court must consider three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [g]overnment's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Citations omitted; internal quotation marks omitted.) State v. Patterson, 236 Conn. 561, 571–72, 674 A.2d 416 (1996); accord Mathews v. Eldridge, 424 U.S. 319, 335, 349, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

We begin with the first Mathews factor, namely, the private interest of the defendant that was affected by the trial court's order. The provisions of the patient bill of rights, which do not apply to the defendant during his period of pretrial incarceration, are significant. They include not just the protection of a patient's “personal, property [and] civil rights”; General Statutes § 17a–541; rights to communicate by mail and telephone and to receive visitors; General Statutes §§ 17a–546 and 17a–547; and qualified rights to refuse the administration of medication and certain treatment; General Statutes § 17a–543; but also include a positive, “meaningful right to treatment, consistent with the requirements of good medical practice,” in other words, “not only basic custodial care but also an individualized effort to help each patient by formulating, administering and monitoring a specialized treatment plan as expressly mandated by General Statutes § 17a–542.” (Internal quotation marks omitted.) Mahoney v. Lensink, 213 Conn. 548, 565, 569 A.2d 518 (1990). In contrast, the medical and psychiatric treatment rights of a pretrial detainee housed in a correctional facility generally are governed by federal constitutional standards that bar correction officials from demonstrating “deliberate indifference” to a detainee's “serious medical condition....” Caiozzo v. Kore man, 581 F.3d 63, 72 (2d Cir.2009). Additionally, however, there is a statutory requirement that the Department of Correction provide a person such as the defendant, who has been diagnosed with a mental illness by a psychiatrist and deemed a danger to himself or others, with “individualized, clinically appropriate and culturally competent mental health services to treat such [person's] condition.” General Statutes § 18–96a (a).

We pause to observe that, however significant the benefits at issue may be to the defendant, they necessarily constitute a less significant liberty interest than that at issue in a typical bond hearing, namely, the interest in full and unrestricted freedom from confinement. The defendant, as an insanity acquittee confined at a maximum security psychiatric facility, already had had his liberty sharply curtailed. Cf. Wilkinson v. Austin, 545 U.S. 209, 225, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (“[p]risoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled [before being transferred to a facility with more restrictive conditions of confinement] are more limited than in cases [in which] the right at stake is the right to be free from confinement at all”); In re Steven M., 264 Conn. 747, 763, 826 A.2d 156 (2003) (“a juvenile who already has been adjudicated delinquent and is in the custody of the state does not possess the same liberty interest as a juvenile who faces delinquency proceedings”). Furthermore, the liberty interest that the defendant is seeking to enforce through this appeal essentially is one, the United States Supreme Court has held, that an incarcerated prisoner has an interest in avoiding. See Vitek v. Jones, supra, 445 U.S. at 492–93, 100 S.Ct. 1254 (involuntary transfer of prisoner to state mental hospital implicates liberty interest and requires procedural safeguards because “[t]he loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement,” due to adverse social consequences, stigma and potential for compelled treatment).

As the United States Court of Appeals for the Eleventh Circuit has explained, “[d]eliberate indifference to a [pretrial detainee's] serious medical needs” violates the due process clause of the fourteenth amendment. Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir.2007); see id. (explaining that standards that govern prisoner's cruel and unusual punishment claim under eighth amendment govern pretrial detainee's claim under due process clause of fourteenth amendment). “To show deliberate indifference, the detainee must show that: (1) [he] had a serious medical need; (2) the prison official acted with deliberate indifference to that serious medical need; and (3) the prison official's deliberate indifference caused the detainee injury.” Blanchard v. White County Detention Center Staff, 262 Fed.Appx. 959, 963 (11th Cir.2008). “To show deliberate indifference, the subjective component of the claim, the [detainee] must prove three things: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” (Internal quotation marks omitted.) Id. When a claim “turns on the quality of the treatment provided, there is no constitutional violation as long as the medical care provided to the inmate is minimally adequate.” (Internal quotation marks omitted.) Id., at 964.The deliberate indifference standard shapes the contours of a detainee's right to psychological or psychiatric care, just as it does the right to other types of medical treatment. See Inmates of Allegheny City Jail v. Pierce, 612 F.2d 754, 763 (3d Cir.1979). “The key factor in determining whether a system for psychological or psychiatric care in a jail or prison is constitutionally adequate is whether inmates with serious mental or emotional illnesses or disturbances are provided reasonable access to medical personnel qualified to diagnose and treat such illnesses or disturbances.” (Footnote omitted.) Id.

General Statutes § 18–96a (a) provides in relevant part: “When assessing and subsequently providing mental health services to any inmate confined in a correctional facility of the Department of Correction who has been diagnosed with a mental illness by a psychiatrist ... and such psychiatrist has informed the department that such inmate is currently diagnosed by such psychiatrist to be a danger to himself ... or others, the department shall consider the diagnosis of such psychiatrist in order to appropriately assess such inmate and provide individualized, clinically appropriate and culturally competent mental health services to treat such inmate's condition.”An array of mental health services are provided to inmates at Connecticut's correctional institutions through Correctional Managed Health Care, a unit of the University of Connecticut Health Center whose mental health department is comprised of “approximately 14 [p]sychiatrists, 13 [p]sychologists, 10 mental health [n]urse [p]ractitioners, 17 psychiatric [n]urse [c]linicians, 74 [s]ocial [w]orkers, and 20 [p]rofessional [c]ounselors [who] serve the needs of approximately 19.2 percent of the inmate population, about 3300 unique individuals.” UConn Health, Correctional Managed Health Care, available at http://cmhc.uchc.edu/programs_services/index.html (last visited October 20, 2015).

In light of the existence of this liberty interest, we turn next to the question of what process was due to the defendant before he could be deprived of that interest. Under the second Mathews factor, we consider the risk that an unwarranted transfer of the defendant to the custody of the Commissioner of Correction occurred under the procedures that were used, and the probable value, if any, of additional or alternative safeguards. See State v. Patterson, supra, 236 Conn. at 572, 674 A.2d 416. Specifically, we consider whether the defendant had an adequate opportunity to contest his transfer as unnecessary, or whether additional procedures might have enhanced the accuracy of the court's determination that imposition of a bond was warranted to protect the safety of others at the hospital.

We first examine the procedures used. The defendant had ample notice that the state intended to seek a bond, which potentially could cause him to be transferred, on the basis of the danger that he posed to the hospital staff and patients, specifically, because of his repeated, assaultive conduct at the hospital. This is because, in the months preceding the trial court's August 25, 2014 order setting a bond, the parties vigorously litigated the issue of whether, under the circumstances of the case, the court possessed the authority to do so. After the defendant had been arraigned on multiple charges in connection with multiple incidents at the hospital, the state filed a motion for bond review, pursuant to which it sought to have a bond imposed in connection with the new offenses, and the defendant filed two lengthy memoranda of law in response. Along with these filings, a great deal of evidence concerning the defendant's psychiatric condition and his violent propensities was submitted to the court in exhibits, much of it presented by the defendant. That evidence included (1) a report prepared by the hospital and three reports prepared by the defendant's independent psychiatric evaluator in connection with the defendant's prior acquittal by reason of mental disease or defect, (2) a transcript of the commitment hearing before the court, McMahon, J., at which two physicians from the hospital and the defendant's independent evaluator had testified, (3) a transcript of the defendant's subsequent commitment hearing before the board, at which the same witnesses testified, and (4) the board's memorandum of decision recommending the defendant's commitment to the hospital. On June 18, 2014, the trial court held a hearing on the state's motion for bond review, at which the defendant was represented by two public defenders who were permitted to present argument.

The hospital's report spans twenty-eight pages, is single spaced, and details extensively the defendant's lengthy history of violence and psychiatric diagnoses and treatment.

These transcripts detail the defendant's violent behavior while at the hospital for evaluation and the injuries that he had caused to patients and staff.

The board's memorandum of decision indicates that, following the defendant's arrival at the hospital, his conduct necessitated four transfers to different units.

At the hearing, the trial court indicated that it had read the psychiatric reports attached to the parties' filings.

A bond hearing was held on August 25, 2014, after the defendant was charged with new, violent offenses. At that hearing, the defendant again was represented by a public defender. Defense counsel explained to the court the circumstances of the defendant's most recent offenses and argued that he should remain at the hospital. The court noted the defendant's multiple existing cases involving his assaults of people at the hospital and observed that the hospital's repeated willingness to accept the defendant back after these incidents undercut an assertion, made previously by defense counsel, that hospital staff could accommodate the defendant but was experiencing “sour grapes” due to Judge McMahon's rejection of the hospital's earlier recommendation that the defendant be returned to prison. After noting that the charged felony had resulted in injuries to a staff member, the court imposed the bond at issue, which resulted in the defendant's transfer to the custody of the Commissioner of Correction.

Following the court's setting of a bond, the defendant moved to stay its imposition pending appeal. In connection with that motion, the defendant submitted another lengthy memorandum of law and additional evidence to the court. Specifically, he submitted his treatment records from the hospital and those postdating his transfer. Hearings were held on the defendant's motion to stay on September 11 and 24, 2014. At those hearings, two public defenders appeared for the defendant and were permitted to present extensive argument.

On September 3, 2014, the defendant, while represented by a public defender, filed a bail review petition with the Appellate Court. He attached to that petition most, if not all, of the material that he previously had presented to the trial court.

Considering the extensive procedures that were employed, we conclude that the chance of an erroneous decision, namely, one involving the failure to give due consideration to the defendant's treatment rights and the deprivation of those rights by the setting of a bond and his subsequent removal from the hospital when that course of action was unnecessary, was minimal. Prior to the decision that ultimately resulted in his transfer, the defendant had multiple hearings, was represented by one or more competent counsel at all times and was permitted to present whatever argument and evidence he believed was pertinent. Accordingly, the trial court was fully aware of the defendant's status as an insanity acquittee, his mental health history, his position that he should remain at the hospital for treatment and his contention that he was being treated unfairly by being singled out for prosecution. The court was equally aware of the defendant's violent behavior and the harm that he already had caused to others. Pursuant to § 54–64a, the trial court's task, in view of the fact that the defendant had been charged with a new felony, was to determine the least restrictive condition of release that would ensure his future appearance and “that the safety of any other person [would] not be endangered....” General Statutes § 54–64a (b)(2). The very focus of the court's inquiry, therefore, was on whether the defendant safely could be released to the hospital again on a promise to appear, or whether permitting him to remain there, without further conditions, would create an unacceptable risk of danger to others. In making this determination, the court, pursuant to the statutory directive, was required to consider a broad array of factors, including the defendant's mental health, the charges pending against him, the strength of the evidence supporting those charges, the defendant's history of violence and previous convictions, and the likelihood that he would commit another crime if released. See General Statutes § 54–64a (b)(2).

Also pursuant to statutory directive, the court was required to state the basis of its decision on the record; see General Statutes § 54–64a (b)(3); and the defendant possessed an immediate right to review of that decision by the Appellate Court. General Statutes § 54–63g. The trial court further explicated its reasoning in response to the defendant's motion to stay at yet another hearing, and our rules of practice afforded the defendant immediate review, by this court, of the trial court's denial of the stay. See Practice Book § 66–6. In sum, the procedures actually employed contained most if not all of the standard hallmarks of due process. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 226–27, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (explaining that fair notice and opportunity for response are among most important procedural mechanisms for avoiding erroneous deprivations of liberty interests, that multiple levels of review further reduce chances of erroneous deprivations and that requiring decision maker to provide statement of reasons for decision guards against arbitrariness).

According to one constitutional law treatise, the essential elements of due process, outside of the criminal trial context, are the following: “(1) adequate notice of the charges or basis for government action; (2) a neutral decision-maker; (3) an opportunity to make an oral presentation to the decision-maker; (4) an opportunity to present evidence or witnesses to the decision-maker; (5) a chance to confront and cross-examine witnesses or evidence to be used against the individual; (6) the right to have an attorney present the individual's case to the decision-maker; [and] (7) a decision based on the record with a statement of reasons for the decision.” 3 R. Rotunda & J. Nowak, Treatise on Constitutional Law: Substance and Procedure (5th Ed.2012) § 17.8(a), p. 128.

The defendant contends that a more extensive, more adversarial hearing, perhaps with a greater burden on the state, was necessary and would have lessened the chance of an unnecessary loss of his treatment rights. Although we doubt that this is the case, we note that, under existing statutory procedures, the defendant had an additional avenue available to him that he did not pursue, one that could have afforded him a full evidentiary hearing. Specifically, at any time following his transfer, the defendant could have filed a motion to modify the conditions of his release pursuant to General Statutes § 54–69(a). In accordance with that provision, whenever any accused person believes that the amount of a bond imposed is excessive in relation to its purpose, he may apply to the trial court and receive a hearing at which he has the opportunity to prove such excessiveness. See General Statutes § 54–69(a). If the trial court agrees, it is authorized to modify the bond and/ or impose different conditions of release. See General Statutes § 54–69(a). Consequently, if the defendant had any evidence that the hospital could house him in a way that ensured the safety of others but, for whatever reason, was refusing to do so, he clearly had the opportunity to present that evidence to the court.

Finally, under the third Mathews factor, we consider the state's interest, including any burdens that the imposition of additional procedural requirements would entail. State v. Patterson, supra, 236 Conn. at 572, 674 A.2d 416. As a general matter, the state's interest in protecting its citizens is well established and is particularly acute in the case of institutionalized individuals in its custody, who are entitled to the same treatment as the defendant, in addition to being safe and secure. See, e.g., Youngberg v. Romeo ex rel. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (involuntarily committed persons have “constitutionally protected interests in conditions of reasonable care and safety”); cf. Wilkinson v. Austin, supra, 545 U.S. at 227, 125 S.Ct. 2384 (in prison context, “[t]he [s]tate's first obligation must be to ensure the safety of guards and prison personnel, the public, and the prisoners themselves”). Moreover, the state has a constitutional obligation to protect crime victims from accused persons. See Conn. Const.amend. XXIX. At the time of the defendant's transfer from the hospital to the custody of the Commissioner of Correction, he stood accused of multiple, violent crimes against other patients and staff at the hospital. All of the incidents underlying the charges against the defendant had occurred within a relatively short period of time and had commenced shortly after his arrival at the hospital. See footnote 11 of this opinion. Furthermore, at the time of the incident that resulted in the final charges against the defendant and the court's imposition of a bond, a second hearing on the state's previous motion for bond review had been scheduled and then postponed at the defendant's request. These circumstances suggest that any delay attendant to the imposition of additional procedural requirements or placement of a higher evidentiary burden on the state would create a substantial risk of additional injuries to innocent persons.

A balance of the three relevant factors leads us to conclude that the procedures employed before the defendant was transferred from the hospital to the custody of the Commissioner of Correction were adequate and that the defendant was not deprived of procedural due process. We are not persuaded that any benefits that might have accrued from additional procedural requirements justify a conclusion that those requirements were constitutionally required. In fact, the palpable risk of harm to third parties counsels against them.

The only case of which we are aware that involves a similar factual pattern lends further support to our conclusion. In Romero v. Schauer, 386 F.Supp. 851 (D.Colo.1974), the United States District Court for the District of Colorado evaluated the constitutionality of the procedures employed to transfer patients confined at a “[s]tate [h]ospital” to a state penitentiary, pursuant to a statute that authorized such a transfer when a patient is “so dangerous that he cannot be safely confined in any institution for the care and treatment of the mentally ill....” (Internal quotation marks omitted.) Id., at 854, quoting Colo.Rev.Stat. § 71–2–4(3) (Cum.Supp.1967). One of the patients whose transfer was at issue was committed as a result of a civil proceeding, whereas the other, like the defendant in the present case, was an insanity acquittee. Romero v. Schauer, supra, at 853. The court concluded that the existing procedures, which were highly informal and conducted entirely by hospital personnel, violated the patients' due process rights; id., at 855–56; and mandated a more formal procedure requiring that a potential transferee receive the assistance of counsel, notice of the basis of the allegations of dangerousness, a hearing before an impartial decision maker, a qualified opportunity to present witnesses and documentary evidence, and a written statement by the decision maker explaining the evidence relied on and the reasons for the transfer decision. Id., at 858, 862.

Romero is not truly on point in that the patients subject to transfer, unlike the defendant in the present case, had not been charged with committing multiple, violent crimes against other patients and staff while institutionalized. See id., at 857. Moreover, the transfers at issue in Romero were not, by their nature, limited in duration; see id.; as is the defendant's temporary period of pretrial detention. Because of those differences, it is safe to conclude that less vigorous procedural protections than those afforded to the patients in Romero would suffice in the present case. Nevertheless, as we previously noted, the protections that the defendant received essentially were commensurate with those held to be constitutionally required in Romero. In sum, the defendant received all of the process that was required, and likely more.

As a final matter, we reemphasize that the defendant, although temporarily in the custody of the Commissioner of Correction, still possesses a right to some level of psychiatric treatment, even if that treatment is less than that to which he has become accustomed during his time at the hospital. See footnotes 35 and 36 of this opinion. Contrary to the defendant's suggestion, there is nothing in the record to indicate that he is not receiving the care to which he, as a pretrial detainee, is entitled. If, however, at any time, the defendant believes that the treatment he is receiving is inadequate, he may pursue an expedited petition for a writ of habeas corpus challenging the conditions of his confinement. See, e.g., Jolley v. Commissioner of Corrections, 98 Conn.App. 597, 597–98, 910 A.2d 982 (2006), cert. denied, 282 Conn. 904, 920 A.2d 308 (2007).

The order imposing a monetary bond as a condition of the defendant's release is affirmed.

In this opinion EVELEIGH, ESPINOSA and ROBINSON, Js., concurred.

PALMER, J., with whom ROGERS, C.J., and McDONALD, J., join, dissenting.

As this court repeatedly has stated, the purpose of bail in this state is, and always has been, to ensure the appearance in court of a criminal defendant awaiting trial. Despite this unchallenged principle, and notwithstanding the right to bail expressly guaranteed under article first, § 8, of the Connecticut constitution,1 the majority today holds that a defendant who concededly is not a flight risk may be held in lieu of bail solely on account of his perceived dangerousness. Because I do not agree that the state constitutional right to bail permits this form of preventive detention, I must dissent.

The majority accurately sets forth the facts and procedural history in some detail. Lost in the thicket of the procedural history of this case, however, are several key points that are necessary for a full understanding of the claim of the defendant, Francis Anderson, that the imposition of a monetary bond under the circumstances of this case deprived him of his state constitutional right to bail. First, although the defendant had been released and transferred back to the Whiting Forensic Division of Connecticut Valley Hospital (Whiting) on a promise to appear on a previous felony assault charge at the time he allegedly committed his most recent assault, the trial court did not revoke the defendant's release on the basis that he committed that assault while on pretrial release, which, under General Statutes § 54–64f (c),2 the court was authorized to do.3 Rather, the court imposed a monetary bond in the new case, and the defendant was transferred to the custody of the Commissioner of Correction because he could not afford to pay that bond. If the court had proceeded to revoke the defendant's release pursuant to § 54–64f, the defendant would have been entitled to an evidentiary hearing prior to the revocation, at which the state would have been required to prove by clear and convincing evidence that the safety of others would be endangered by the defendant's release. See General Statutes § 54–64f (c). Because the trial court imposed a monetary bond in the new case, however, no such hearing or proof of his dangerousness was required.

Moreover, because the defendant was committed at Whiting by virtue of his previous acquittal by reason of mental disease or defect, an order releasing him on a promise to appear—or, for that matter, any nonsurety bond—would have resulted not in his release into the community, but in his continued confinement at Whiting. Thus, as the trial court recognized, there was no risk that the defendant would fail to appear in court if released, and it is undisputed that a monetary bond was unnecessary to ensure the defendant's appearance.

Finally, the trial court's sole consideration in setting a bond in this case was its belief that the defendant posed a safety risk to other patients and hospital staff if he remained at Whiting, and the bond that the court set was intended to ensure that the defendant would be transferred from Whiting to the custody of the Commissioner of Correction. As the trial court explained, in reaching its determination, it considered the defendant's “history of violence” based on the allegations against him in the pending cases, concluding “that the defendant posed a risk to the physical safety of other people, [including] ... not only the staff ... working [at Whiting], but [also] ... the other patients,” and that a $100,000 monetary bond was “necessary to ensure the safety of these people.” Quite clearly, then, the court imposed a monetary bond in an amount that the defendant could not pay, with the result that the defendant would be transferred from Whiting to the custody of the Commissioner of Correction, solely because the court believed that the defendant represented a threat to the staff and patients at Whiting. Furthermore, although the trial court did not order the defendant detained without bail on account of his dangerousness—an order that would have been unlawful—the undeniable purpose and effect of the court's imposition of a high monetary bond was to ensure that the defendant would be detained because of the threat he posed to the safety of others. As a result, the defendant has been preventively detained.4

On appeal, the defendant claims that the imposition of a monetary bond for the purpose of ensuring that he would be detained pending trial based solely on the belief that he posed a threat to public safety violates his right to bail under article first, § 8, of the Connecticut constitution. For the reasons set forth hereinafter, I agree with this contention.5

Article first, § 8, contains two provisions pertaining to bail in criminal cases. First, like the eighth amendment to the United States constitution, article first, § 8, of the Connecticut constitution provides that excessive bail shall not be required. Although it had been argued that the prohibition on excessive bail under the eighth amendment implies that bail may not be denied,6 the United States Supreme Court rejected this view in United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In that case, the respondents challenged the constitutionality of the Bail Reform Act of 1984, which authorized the pretrial detention of a defendant if, after an evidentiary hearing, the court finds by clear and convincing evidence that “no condition or combination of conditions will reasonably assure the appearance of the [defendant] ... and the safety of any other person and the community....” Public L. No. 98–473, 98 Stat.1976, 1978–80 (1984), codified at 18 U.S.C. § 3142(e) and (f) (Supp. II 1984). The respondents claimed, inter alia, that this provision violated the eighth amendment because the excessive bail clause guaranteed their right to have bail set in an amount no greater than that necessary to ensure their appearance at trial. See United States v. Salerno, supra, at 752–53, 107 S.Ct. 2095. The court rejected this claim, concluding that the “[e]ighth [a]mendment [does not] categorically [prohibit] the government from pursuing other admittedly compelling interests through regulation of pretrial release.” Id., at 753, 107 S.Ct. 2095. According to the court, “[t]he only arguable substantive limitation of the [b]ail [c]lause is that the [g]overnment's proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil.... Thus, when the [g]overnment has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more ... [but] when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the [e]ighth [a]mendment does not require release on bail.”7 (Citation omitted.) Id., at 754–55, 107 S.Ct. 2095.

In contrast to the eighth amendment, however, article first, § 8, of the Connecticut constitution expressly guarantees the right to bail in all but certain capital cases, providing that, “[i]n all criminal prosecutions, the accused shall have a right ... to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great....” Although we previously have not considered whether, in light of this additional protection, our state constitution prohibits the use of bail to protect public safety, we have concluded that a court may not deny bail outright except in cases falling within the exception expressly provided for in article first, § 8. See State v. Menillo, 159 Conn. 264, 269, 268 A.2d 667 (1970) (“the bail provision of § 8 of article first of our constitution makes clear that it was intended that in all cases, even capital cases not falling within the exception, bail in a reasonable amount should be ordered”). We also have recognized that the excessive bail clause of article first, § 8, “prevents a court from fixing bail in an unreasonably high amount so as to accomplish indirectly what it could not accomplish directly, that is, denying the right to bail.” Id. Thus, under our constitution, “[t]he right to be released on bail upon sufficient security is a fundamental constitutional right”; State v. Olds, 171 Conn. 395, 404, 370 A.2d 969 (1976); and that right may not be denied except in the limited circumstances set forth in article first, § 8, itself. See, e.g., State v. Aillon, 164 Conn. 661, 662, 295 A.2d 666 (1972) (order) (following determination of United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 [ (1972) ], that death penalty as then imposed nationwide was unconstitutional, defendant, who had been charged in this state with murder, a capital offense as defined by statute, was no longer “being detained for an offense [that was] ... punishable by death” and, therefore, was “entitled to bail and to release on entering into a recognizance, with sufficient surety, for his appearance before the court having cognizance of the three offenses with which he [was] charged”).

Although the right to bail is guaranteed by our constitution, the administration of bail has long been governed by statute. The relevant procedures governing pretrial release are set forth in General Statutes § 54–64a. Prior to 1990, § 54–64a provided that, upon presentment of the defendant, the court was to release the defendant “upon the ... [least restrictive] conditions of release found sufficient to provide reasonable assurance of his appearance in court....” General Statutes (Rev. to 1989) § 54–64a. In 1990, however, the General Assembly passed bail reform legislation that, for the first time in our history, authorized courts to consider public safety concerns when setting conditions of release for certain crimes and to revoke bail when a defendant violates the conditions set by the court. See Public Acts 1990, No. 90–213, § 51; Public Acts 1990, No. 90–261, § 9. As a result of this legislation, § 54–64a now contains two distinct provisions governing the court's pretrial release decision, depending on the seriousness of the offense with which the defendant is charged.

For defendants charged with most misdemeanors, § 54–64a (a)(1) still requires the court to impose the least restrictive conditions necessary to ensure the appearance of the defendant in court, and § 54–64a (a)(2) sets forth factors relating to that purpose that the court may consider when setting conditions of release. For defendants charged with most felonies, however, § 54–64a (b)(1) now provides that “[the] court shall, in bailable offenses, promptly order the release of [the defendant] upon the first of the following conditions of release found sufficient to reasonably ensure the appearance of the [defendant] in court and that the safety of any other person will not be endangered....” (Emphasis added.) Section 54–64a (b)(1) further enumerates the conditions that the court may set, from least restrictive to most restrictive, as follows: (1) a written promise to appear without special conditions; (2) a written promise to appear with nonfinancial conditions; (3) a bond without surety in no greater amount than necessary; and (4) a bond with surety in no greater amount than necessary. Section 54–64a (b)(2) sets forth certain factors that the court may consider in determining what conditions will ensure the defendant's appearance and the safety of other persons. In addition to identifying factors relevant to ensuring the appearance of the defendant, § 54–64a (b)(2) also authorizes the court to consider “1 the number and seriousness of charges pending against the [defendant] ... 2 the [defendant's] history of violence, 3 whether the [defendant] has previously been convicted of similar offenses while released on bond, and 4 the likelihood based upon the expressed intention of the [defendant] that [the defendant] will commit another crime while released.” General Statutes § 54–64a (b)(2)(H), (J), (K) and (L). Finally, § 54–64a (b)(3) requires the court to “state for the record any factors ... that it considered and the findings that it made as to the danger, if any, that the [defendant] might pose to the safety of any other person upon the [defendant's] release that caused the court to impose the specific conditions of release that it imposed.” Thus, when a court sets conditions of release for persons charged with most felonies, § 54–64a (b) expressly instructs it to consider the safety of other persons and authorizes it to consider the likelihood that the defendant will commit another crime if released.8

On the basis of this statutory language, the trial court in the present case determined that, although a monetary bond was not necessary to ensure the defendant's appearance in court, § 54–64a (b)(1) nevertheless authorized it to set a monetary bond for the purpose of ensuring the safety of other persons. The defendant claims, however, that courts may not set financial conditions of release solely to protect public safety. Rather, the defendant contends, the purpose of bail under the Connecticut constitution is to ensure the appearance of the accused, and the right to be released “upon sufficient security” pursuant to article first, § 8, mandates that a trial court may set a monetary bond only in an amount necessary to effectuate that end.9 The defendant maintains that, because the trial court set a monetary bond solely to protect the safety of Whiting patients and staff by ensuring that he would be detained pending trial, the imposition of a monetary bond in this case violated his right to bail under article first, § 8.

We last examined the purposes of bail in State v. Ayala, 222 Conn. 331, 610 A.2d 1162 (1992), which presented the issue of whether article first, § 8, precludes courts from revoking a defendant's bail for violating nonfinancial conditions of release. In Ayala, the defendant, Enrique Ayala, was arrested on several felony charges. See id., at 335, 610 A.2d 1162. Ayala initially posted the monetary bond set by the court and was released subject to certain conditions, one of which was that he not commit any crime while on release. Id. Shortly after his release on bond, Ayala was charged with second degree assault, and, two days later, he was charged with threatening. Id. Although he again was released on bond in those cases, the state sought to revoke his bond in the first case, claiming that revocation was warranted under § 54–64f because he had committed crimes in violation of the conditions of his release. Id., at 335–36, 610 A.2d 1162. After a hearing, the trial court found probable cause to believe that Ayala had committed a crime while he was released on bond, and also found by clear and convincing evidence that the safety of another person, namely, the victim in the assault case, would be endangered if Ayala were to be released. Id., at 337, 610 A.2d 1162. Accordingly, in reliance on § 54–64f (c), the court revoked Ayala's bond in the first case. Id.

On appeal, Ayala claimed, inter alia, that the right to bail under article first, § 8, prohibited the court from revoking his bail without setting a new bond. See id., at 342, 610 A.2d 1162. We rejected that claim, explaining that “[t]he fundamental right to bail guaranteed under our state constitution must be qualified by a court's authority to ensure compliance with the conditions of release”; id., at 347, 610 A.2d 1162; and that, “[w]hile released on bail prior to trial, a defendant is still within the constructive custody of the law. State v. Bates, 140 Conn. 326, 330–31, 99 A.2d 133 (1953). The trial court retains jurisdiction over the conditions of release ... and possesses the inherent authority to exercise powers; to implement and enforce laws; to exact obedience.” (Citations omitted; internal quotation marks omitted.) State v. Ayala, supra, 222 Conn. at 347, 610 A.2d 1162. We further explained that Ayala's “failure to abide by the conditions of his release resulted in a forfeiture of his right to release”; id., at 348, 610 A.2d 1162; and that, “[b]ecause [Ayala] was initially released on bail, the requirements of article first, § 8 ... were met.” Id., at 348–49, 610 A.2d 1162. We also expressly observed that this conclusion was “not inconsistent with our statement in State v. Menillo, supra, 159 Conn. at 269 268 A.2d 667, that the fundamental purpose of bail is to ensure the presence of an accused throughout all proceedings.” (Internal quotation marks omitted.) State v. Ayala, supra, at 349, 610 A.2d 1162. As we explained, the revocation of a defendant's bail for the commission of an offense while he is on release is consistent with the purpose of ensuring the defendant's appearance because “[i]t is reasonable to suppose that a defendant who is arrested and charged with the commission of additional and serious crimes while on pretrial release might, as a result of these charges, more readily be tempted to flee the jurisdiction.” Id.; see also Mello v. Superior Court, 117 R.I. 578, 582, 370 A.2d 1262 (1977) (“When one free on bail commits other crimes, the pressure to flee the court's jurisdiction and fail to appear when summoned is apt to increase. Thus, bail may also be conditioned on the continuing good behavior of the accused.”).

In addressing Ayala's argument that the revocation of his bail based on the commission of a crime conflicted with the fundamental purpose of bail under the state constitution, we also looked to the history of the right to bail in Connecticut. See State v. Ayala, supra, 222 Conn. at 349–51, 610 A.2d 1162. We noted that, prior to the adoption of the right to bail provision in the 1818 constitution,10 the right to be admitted to bail was protected by statute as early as 1672, and was incorporated into the 1750 revision of the statutory declaration of rights.11 Id., at 350, 610 A.2d 1162. The relevant provision of the 1750 declaration of rights provided that “no man's person shall be restrained, or imprisoned, by any authority whatsoever, before the law hath sentenced him thereunto, if he can and will give sufficient security, bail, or mainprize for his appearance and good behaviour in the mean time, unless it be for capital crimes, contempt in open court, or in such cases wherein some express law doth allow of, or order the same.” (Emphasis added.) Public Statute Laws of the State of Connecticut (1808) tit. I, § 4, p. 24. We explained that this language suggests that courts had the authority to ensure the good behavior of defendants who were released on bail pending trial. See State v. Ayala, supra, at 351, 610 A.2d 1162. We observed that “[n]either the text of the 1818 constitution nor that of any subsequent constitution has made express reference in its bail provision to the defendant's appearance or to the defendant's good behavior”; (footnote omitted) id., at 350–51, 610 A.2d 1162; and that “[l]egislative references to either purpose were eliminated from statutes enacted after 1818 and before 1849....” Id., at 351, 610 A.2d 1162. We also indicated, however, that, although “language providing that bail was conditioned [on] a defendant's appearance before the court reappeared in statutes enacted in 184912 and remained thereafter ... [t]here [was] no evidence ... that the framers of the 1818 constitution intended to abandon the customary purposes of bail that were in effect at the time of the adoption of the 1818 constitution....” (Footnote added.) Id. On the basis of our understanding of this history, we observed that, “while ensuring the appearance of the defendant is a primary purpose of bail in this state, it is not necessarily the sole purpose”; (emphasis in original) id., at 350, 610 A.2d 1162; and that, by permitting trial courts to impose nonfinancial conditions of release, the legislature recognized the court's authority to regulate and monitor the conduct of defendants who have been released into the community pending trial. See id., at 349–51, 610 A.2d 1162.

In Ayala, although we did not have occasion to consider whether a trial court may set a monetary bond as a means of detaining a dangerous defendant solely in the interest of public safety, we strongly suggested that courts are not authorized to set financial conditions of release for that purpose. See id., at 351, 610 A.2d 1162. Rather, we explained that “[c]onditioning pretrial release on a defendant's ability to meet a financial bond set by the court emphasizes the appearance aspect of bond,” whereas “[t]he use of nonfinancial conditions of release in addition to or in lieu of bond has broadened the focus of the purposes of bail to recognize ... that bail is a method for ensuring a defendant's good behavior while on release.” (Emphasis added.) Id. In other words, a trial court, pursuant to its authority over a defendant who has been released on bail, also may impose nonfinancial conditions to ensure the defendant's good behavior while he is awaiting trial, and the court may enforce such conditions by revoking bail in the event that the defendant fails to comply with them. This does not mean, however, that a court may set a monetary bond to prevent a defendant from obtaining release in the first instance predicated on the concern that he poses a danger to the public. Indeed, in agreeing with the reasoning of the court in Mello v. Superior Court, supra, 117 R.I. at 585, 370 A.2d 1262, we indicated in Ayala that our holding should not be interpreted as authorizing the detention of a defendant on the basis of public safety concerns alone. See State v. Ayala, supra, 222 Conn. at 352, 610 A.2d 1162. We explained that “[t]he authority ... to revoke bail in certain situations [should not] be construed as [sanctioning the] authority to exercise preventive detention. The former is a sanction for past acts, [whereas] the latter [is] a prophylactic for the future.” (Internal quotation marks omitted.) Id., quoting Mello v. Superior Court, supra, at 585, 370 A.2d 1262.

Moreover, the history of the right to bail in Connecticut belies any claim that our constitution allows courts to set financial conditions of release as a means of detaining a defendant for the protection of the public. That history reveals, rather, that the sole legitimate purpose for requiring a defendant to post a monetary bond before being admitted to bail is to ensure his appearance in court.13 We previously have recognized that the 1818 constitution, and the declaration of rights contained in article first of that constitution in particular, did not establish new or additional rights but, rather, incorporated into our founding document certain fundamental rights that already were protected by statute or the common law. See, e.g., Dowe v. Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946); see also W. Horton, The Connecticut State Constitution (2d Ed.2012) pp. 3–4; C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L.Rev. 87, 96 (1982). Consistent with this view, when interpreting provisions of our constitution, we have observed that, “[t]o understand the intent of the instrument it is often necessary to have recourse to the form of government as it had existed before, and did exist at the time of, the adoption of the 1818 constitution.” Dowe v. Egan, supra, at 119, 48 A.2d 735; see, e.g., State v. Stoddard, 206 Conn. 157, 164–65, 537 A.2d 446 (1988) (reviewing history of right to counsel in Connecticut in concluding that state constitution requires that suspect in custody be informed of efforts by counsel to render legal assistance). Thus, in determining whether the right to be released on “sufficient sureties” within the meaning of article first, § 14, of the 1818 constitution; see footnote 10 of this opinion; included the right to a monetary bond in an amount no more than necessary to ensure the defendant's appearance, we must examine the statutes and case law leading up to the adoption of the 1818 constitution to ascertain the purpose of bail as it was understood at that time.

Significantly, statutory provisions enacted both before and immediately after the adoption of the 1818 constitution suggest that the purpose of bail was to ensure the appearance of the accused, and that bail should be set in an amount necessary to effectuate that purpose. For example, a statutory provision passed in 1784 authorizing justices of the peace to set bail in criminal matters “not determinable by a single minister of justice” indicated that “such [justices of the peace] shall recognize with surety, such person or persons, if bailable, to appear before the court proper to try and determine the [matter]: and for want of sufficient bail to commit him or them to gaol, for the purpose aforesaid....” (Emphasis added.) Public Statute Laws of the State of Connecticut (1808) tit. XLVI, c. I, § 3, p. 230. Thus, justices of the peace were to set bail in an amount necessary to ensure the defendant's appearance, and a person who could not post bail was detained so that he could be brought to appear before the court in which the matter would be tried. This provision was carried over in substantially similar form when the statutes were rewritten and reenacted following the adoption of the 1818 constitution. See Public Statute Laws of the State of Connecticut (1821) tit. 22, § 99, p. 172. In the chapter of the 1821 statutes setting forth the powers of the justices of the peace, another provision provided that justices of the peace “may order the defendant to give bond, or to enter into a recognizance, with sufficient surety ... conditioned that the defendant appear before the court having cognizance of the offence....” (Emphasis added.) Public Statute Laws of the State of Connecticut (1821) tit. 21, § 35, p. 147. The provisions contained in the 1821 statutes shed considerable light on the meaning of the 1818 constitution because the committee appointed to revise the statutes following the adoption of the 1818 constitution was instructed “to examine the statute laws, and to recommend such alterations and provisions as should be necessary and expedient to render the statutes conformable to the constitution.” Public Statute Laws of the State of Connecticut (1821) p. viii. Consequently, the 1821 statutes provide an indication of how the constitutional provisions were understood at that time. Notably, there is no indication in either the pre–1818 or post–1818 statutes that courts were authorized to set a monetary bond to protect the public from a defendant perceived to pose a safety risk.

Although there is no case law at or around the time of the adoption of the 1818 constitution that squarely addresses the issue, several cases from that time support the view that the purpose of bail was to ensure the appearance of the defendant. For example, in Dickinson v. Kingsbury, 2 Day (Conn.) 1 (1805), in which this court, in a memorandum decision, held that a sheriff may take bail from a defendant who could not post bail at the time he was put to plea, the court reasoned that “[t]he personal liberty of the subject is to be favored, as far as practicable and safe, until conviction. Bail for his appearance at the court, in which his guilt or innocence is to be tried, is, at once, the mode of favoring liberty, and securing the appearance for trial.” (Emphasis added.) Id., at 11 (reporter's summary of case). Subsequently, in Potter v. Kingsbury, 4 Day (Conn.) 98 (1809), this court held that a justice of the peace conducting an inquiry into whether there was probable cause to bind a defendant over for trial had the authority to adjourn court for the purpose of allowing the state or the defendant to obtain witnesses, and to “commit [a defendant] to gaol for safe-keeping, unless he offers bail for his appearance....” (Citation omitted.) Id., at 99. In so holding, the court noted that, if the defendant offered bail, “it [became] the duty of the justice of the peace to take bail, if good and sufficient be offered, for the appearance of the [defendant ].” (Emphasis added.) Id. In expounding on the purpose of bail, the court further explained that “[the power to take bail] will not only give a reasonable opportunity to persons prosecuted for offenses to prepare for their defense, but will save them from imprisonment. Justices of the peace, however, in the exercise of this power, should take bonds sufficient to enforce an appearance of the [defendant ], according to the nature and enormity of the offense.” (Emphasis added.) Id., at 100.

In sum, contemporaneous statutes and case law indicate that, when the 1818 constitution was adopted, it was well understood that the sole purpose of bail was to ensure the appearance of the defendant. As one author put it in a comment containing an in-depth review of the history of bail in Connecticut that was published just after the enactment of the 1990 bail reform legislation, “[t]he only permissible object of bail since 1818 has been to assure a defendant's appearance before the court at a later date.... [T]he meaning of bail established in the state constitution not only refers to the right of those accused of noncapital offenses to be released before trial, but also to the notion that the only valid state interest in conditioning the accused's release is assuring his appearance before the court.” M. Mann, comment, “Overlooking the Constitution: The Problem With Connecticut's Bail Reforms,” 24 Conn. L.Rev. 915, 941 (1992).

This understanding is consistent with the common-law origins of our bail system. Cf. State v. Joyner, 225 Conn. 450, 489, 625 A.2d 791 (1993) (Berdon, J., dissenting) (“it is clear that in the colonial days and into the time of [Zephaniah] Swift's writings, Connecticut jurists relied [on William] Blackstone as a source of the common law”); State v. Geisler, 222 Conn. 672, 687–88, 610 A.2d 1225 (1992) (discussing English common law in course of deciding scope of protections under article first, § 7, of Connecticut constitution). Under English common law, a “bail” was a person who promised to ensure that the accused would appear before the court, and, upon such promise, the accused would be “delivered ... into the custody of his bail, to be forthcoming at a certain day, and [was] therefore said to be a surety of body ... for an appearance....” (Internal quotation marks omitted.) A. Highmore, A Digest of the Doctrine of Bail; In Civil and Criminal Cases (1783) pp. v–vi. If the accused failed to appear, the bail would become liable for the amount of the bond. Id., at pp. 200–201; see also P. Rice, “Bail and the Administration of Bail in the State of Connecticut,” 4 Conn. L.Rev. 1, 1 1971). As Blackstone explained, when a justice of the peace found that there was just cause to bind an accused for trial for an offense, the accused was required “either [to] be committed to prison, or [to] give bail; that is, put in securities for his appearance, to answer the charge against him. This commitment, therefore, being only for safe custody, wherever bail will answer the same intention, it ought to be taken....” (Emphasis added.) 4 W. Blackstone, Commentaries on the Laws of England (1807) p. 296. A 1783 treatise on the law of bail in England noted that justices of the peace should set bail in an amount “sufficient to prevent the offender's absconding”; A. Highmore, supra, at p. 194; and “must take care that, under preten[se] of demanding sufficient surety, they do not make so excessive a demand as in effect amounts to a denial of bail....” Id., at p. 196.

Although bail generally was denied in capital cases, there is no suggestion that this was due to concerns over the dangerousness of the accused. To the contrary, these authorities make clear that bail was not allowed in capital cases because a person charged with a capital offense would be more likely to flee than to appear and stand trial, and it was believed that “the public [was] entitled to demand nothing less than the highest security that can be given, [namely, in the form of] the body of the accused; in order to ensure that justice shall be done upon him, if guilty. Such persons therefore ... have no other sureties but the four walls of the prison.” 4 W. Blackstone, supra, at p. 298; see also id., at pp. 296–97 (“[I]n ... offences of a capital nature, no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit, to save his own life?”); L. Tribe, “An Ounce of Detention: Preventive Justice in the World of John Mitchell,” 56 Va. L.Rev. 371, 401 (1970) (explaining that “the underlying assumption seems to have been that certain classes of offenders, particularly those whose lives were at stake, ought to be detained simply to assure their presence at trial,” both because of “the greater temptation to flee” and “the fear that persons guilty of especially atrocious offenses might well be killed before they could appear for trial”).

That the right to bail under article first, § 8, prohibits courts from setting a bond solely on the basis of a defendant's perceived dangerousness is further evidenced by the consistency with which our legislature and courts have indicated that bail is to be conditioned on the appearance of the defendant. “A practical construction placed [on] a constitutional provision immediately after its adoption and consistently and repeatedly followed by the executive and legislative branches for over [one] century thereafter is most persuasive ... [and] furnishes strong evidence of the meaning to be accorded the [provision]. A practice of such duration, while not absolutely binding, is entitled to great regard in determining the true construction of the constitutional provision.” (Citation omitted.) Cahill v. Leopold, 141 Conn. 1, 14, 103 A.2d 818 (1954). As I discussed previously, statutes governing the administration of bail have provided for the setting of a bond to ensure the defendant's appearance since at least 1784. In 1849, the statute implementing the right to bail in criminal cases expressly provided that “[a]ll persons detained in jail for trial, for an offence not capital, shall be entitled to bail for their appearance before the court having cognizance of the offence....” (Emphasis added.) Revised Statutes of the State of Connecticut (1849) tit. VI, c. XII, § 163, p. 259. Just two years after the adoption of the Connecticut constitution of 1965, the legislature amended the bail statutes to allow for release on a written promise to appear in lieu of a monetary bond, and provided that the accused must be released upon the imposition of the least restrictive conditions sufficient “to provide reasonable assurance of his appearance in court....”14 Public Acts 1967, No. 549, § 12, codified at General Statutes (Rev. to 1968) § 54–64a. Although Connecticut's bail statutes have been amended several times throughout the state's history, language providing that bail must be set solely in order to ensure the defendant's appearance remained in effect until the 1990 bail reform effort resulted in the current language. Indeed, for more than 150 years after the adoption of the 1818 constitution, no Connecticut statute authorized a court to consider public safety in determining whether to release a defendant on bail until the current language was added in 1990. The long history of legislative enactments requiring courts to set bail to ensure the appearance of the accused, and the absence of any language suggesting that courts may consider public safety concerns when setting bail, provides support for the conclusion that the state constitutional right to bail cannot be squared with the imposition of a monetary bond solely for the purpose of detaining a defendant on the ground that he poses a danger to others.

Of course, this court also has expressed the view that the purpose of requiring a monetary bond is to ensure the appearance of the accused. As I previously noted, in State v. Menillo, supra, 159 Conn. at 265, 268 A.2d 667, this court stated that “[t]he fundamental purpose of bail is to ensure the presence of the accused throughout all proceedings, including final judgment.” Id., at 269, 268 A.2d 667. In explaining that the excessive bail clause of article first, § 8, prevents a court from circumventing the right to bail by setting an unreasonably high bond, the court also indicated that, although “a reasonable amount is not necessarily an amount within the power of the accused to raise,” the bond must be “reasonable under all the circumstances relevant to the likelihood that the accused will flee the jurisdiction or otherwise avoid being present for trial.” (Emphasis added.) Id.

In State v. Bates, supra, 140 Conn. at 326, 99 A.2d 133, this court, in the course of addressing whether a person who is released on bail is considered in custody such that his failure to deny an accusation of guilt may not be admitted against him as an adoptive admission,15 indicated that “[t]he object of requiring bail is to compel the presence of [the] defendant in court, to the end that justice may be administered.... Its purpose is to secure [at trial] the presence of the person charged with [a] crime ... and to force him to submit to the jurisdiction and the punishment imposed by the court.” (Citation omitted; internal quotation marks omitted.) Id., at 330, 99 A.2d 133; see also State v. Hedge, 297 Conn. 621, 671–72, 1 A.3d 1051 (2010) (in prosecution for failure to appear in violation of condition of bail, evidence that defendant was free on bond, that bond was forfeited, and that defendant was rearrested after failing to return to court was deemed sufficient to support inference that appearance in court was term of bond because “it is a matter of common knowledge that bonds and bail are posted as a condition of release for the purpose of ensuring the presence of an accused for all court proceedings pertaining to the charged offense”); cf. State v. Sheriff, 301 Conn. 617, 626, 21 A.3d 808 (2011) (when accused released on bond fails to appear, surety may be discharged “only when appearance at trial is made impossible by an act of God, an act of the state, or pursuant to law” because, “[b]y posting bond for the accused, the surety willingly takes custody of the accused in place of the state and insures the state against the risk of flight by accepting responsibility for the consequences thereof” [emphasis added] ). Throughout the history of Connecticut jurisprudence, there is not a single case in which a Connecticut court has indicated that a monetary bond may be set in a criminal case for the purpose of protecting public safety.

This long held view of the purpose of bail carries additional weight in light of the fact that the framers of the 1965 constitution adopted article first, § 8, without any indication that they intended to depart from this state's prior understanding of the right to bail. Although we generally have focused on how constitutional provisions were understood in 1818 when interpreting those provisions that were readopted in similar or identical form in the 1965 constitution; see, e.g., State v. Lamme, 216 Conn. 172, 178–81, 579 A.2d 484 (1990); we occasionally have looked to the state of the law in 1965 to understand how protections contained in the declaration of rights were understood by the framers of the 1965 constitution. See, e.g., Ryszkiewicz v. New Britain, 193 Conn. 589, 598, 479 A.2d 793 (1984) (concluding that provision in city charter limiting municipal liability does not infringe right to access courts under article first, § 10, because, “[g]iven that governmental immunity was a well established judicial principle at the time of the Connecticut constitution's adoption in 1818 and in 1965, the provision granting access to courts for redress of grievances found in article first, § 10, cannot be construed as granting an unqualified right to recover unlimited damages from government entities”); see also W. Horton, supra, at p. 34 (“[t]he more logical approach ... would assume that the framers [of the 1818 constitution] intended continuity, not disruption, and thus that they intended for the 1818 provisions reenacted in 1965 to continue to mean what they had come to mean by 1965”). As already demonstrated, when the 1965 constitution was adopted, it was long understood in Connecticut that the essential purpose of bail was to ensure the appearance of the accused.

It also bears noting that the 1965 constitution was adopted amidst a nationwide push for bail reform, during which the constitutionality of preventive detention was the subject of active and widespread debate. See D. Freed & P. Wald, Bail in the United States: 1964, pp. vii-viii, 9–21 (discussing initiatives aimed at reforming bail system and reviewing studies concerning bail systems in various jurisdictions published between 1924 and 1963); C. Foote, “The Coming Constitutional Crisis In Bail: I,” 113 U. Pa. L.Rev. 959, 961–65 (1965) (discussing efforts to reform bail system). Shortly before the adoption of the 1965 constitution, the Department of Justice sponsored the National Conference on Bail Reform and Criminal Justice, a highly publicized effort aimed at addressing deficiencies in the bail system. See Proceedings and Interim Report of the National Conference on Bail and Criminal Justice (April, 1965) pp. xiii-xvii. One of the chief concerns addressed by the conference was the propriety of using a high monetary bond as a means of detaining defendants prior to trial, and the resulting report indicated that “[a] substantial body of opinion supports the view that setting high bail to detain dangerous offenders is unconstitutional.” Id., p. xxix. A short time later, the American Bar Association issued proposed standards for the administration of bail, which provide in relevant part that “[t]he sole purpose of money bail is to assure the defendant's appearance. Money bail should not be set to punish or frighten the defendant, to placate public opinion or to prevent anticipated criminal conduct.” Project on Minimum Standards for Criminal Justice: Standards Relating to Pretrial Release (A.B.A., Approved Draft 1968) § 5.3(b), p. 58; see also id., § 1.2(c), p. 26 (“money bail ... should be required only in cases in which no other condition will reasonably ensure the defendant's appearance”). The introduction to the standards explains that purposely setting bail beyond the defendant's reach is “generally regarded as a distortion of the bail system” and that “only confusion and dissatisfaction can result from attempting to twist the bail system in order to prevent crime.” Id., at p. 6.

Around the same time, federal courts expressed the view that setting bail for the purpose of preventing the accused from committing additional crimes was contrary to the purpose of bail under the eighth amendment to the United States constitution. In 1950, Justice Robert H. Jackson, acting as a Circuit Justice in connection with an application by the government to revoke the bail of several members of the Communist Party whose convictions for conspiring to overthrow the government had been upheld by the Second Circuit Court of Appeals, rejected the government's contention that bail should be revoked because the defendants posed a danger to the public as “difficult to reconcile with traditional American law....” Williamson v. United States, 184 F.2d 280, 282 (2d Cir.1950). As Justice Jackson wrote, “[i]mprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted.” Id., at 282–83. A little more than one year later, the United States Supreme Court concluded that bail set at $50,000 for twelve petitioners charged with conspiring to overthrow the government was excessive under the eighth amendment in light of the lack of evidence tending to show that the petitioners were a flight risk. See Stack v. Boyle, 342 U.S. 1, 3, 5–6, 72 S.Ct. 1, 96 L.Ed. 3 (1951). The court noted that “[t]he right to release before trial is conditioned [on] the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty”; id., at 4, 72 S.Ct. 1; and that “[b]ail set at a figure higher than an amount reasonably calculated to fulfill this purpose is ‘excessive’ under the [e]ighth [a]mendment.” Id., at 5, 72 S.Ct. 1. Justice Jackson wrote separately and emphasized that, although he disagreed with the court's disposition of the case on procedural grounds, the government's argument that bail may be “fixed not as a reasonable assurance of [a defendant's] presence at the trial, but also as an assurance [that he] would remain in jail” was “contrary to the whole policy and philosophy of bail.” Id., at 10, 72 S.Ct. 1 (Jackson, J.). Against this backdrop, the fact that the framers of the 1965 constitution retained the right to bail without any suggestion that bail may be used as a means of detaining a defendant on grounds of dangerousness suggests that they intended to maintain the understanding of the purpose of bail that had been embedded in Connecticut law for close to two centuries.

Courts in other jurisdictions with state constitutional right to bail provisions similar or identical to our own also have concluded that the purpose of bail is to ensure the appearance of the accused and that preventive detention, either by the outright denial of bail or by setting a prohibitively high monetary bond, is not constitutionally permissible. As this court previously has observed, it appears that the declaration of rights adopted in 1818 has its antecedents in the Mississippi constitution of 1817. E.g., State v. Jenkins, 298 Conn. 209, 267, 3 A.3d 806 (2010). Thus, case law interpreting the Mississippi constitution's declaration of rights may be particularly persuasive when we interpret similar provisions in our own constitution. With respect to the right to bail, the corresponding provision in the Mississippi constitution of 1817 is identical in all material respects to the provision that the framers of our 1818 constitution adopted. Compare Conn. Const. (1818), art. I, § 14 (“[a]ll prisoners shall, before conviction, be bailable by sufficient sureties, except for capital offences, where the proof is evident, or the presumption great”), with Miss. Const. (1817), art. I, § 17 (“all prisoners shall, before conviction, be bailable by sufficient securities, except for capital offences, when the proof is evident or the presumption great”). Significantly, the Supreme Court of Mississippi has stated unequivocally that “the very purpose of bail is to [e]nsure the accused's appearance”; Ex parte Dennis, 334 So.2d 369, 371 (Miss.1976); and that, “[s]ince the purpose of allowing bail is to secure the presence of the accused at trial, the amount of bail to be required is governed largely by the character of the offense committed and the financial ability of the accused.” Royalty v. State, 235 So.2d 718, 720 (Miss.1970);16 see also In re Underwood, 9 Cal.3d 345, 348, 508 P.2d 721, 107 Cal.Rptr. 401 (1973) (“The purpose of bail is to assure the defendant's attendance in court when his presence is required.... Bail is not a means for punishing defendants ... nor for protecting the public safety.” [Citations omitted.] ), abrogated by 1982 amendment to Cal. Const. art. I, § 12; Commonwealth v. Truesdale, 449 Pa. 325, 338–39, 296 A.2d 829 (1972) (“Bail was conceived as a means of securing the accused's presence at trial, while at the same time according him liberty prior to trial so he could prepare his case. The traditional decision to deny bail in capital cases was not a means of keeping an accused confined to protect the public, it was a means of assuring he would appear at trial.”), abrogated by 1998 amendment to Pa. Const. art. I, § 14; State v. Pray, 133 Vt. 537, 541–42, 346 A.2d 227 (1975) (“[t]he purpose of bail, as presently constitutionally mandated, is to assure the defendant's attendance in court, and cannot be a means of punishing the defendant, nor of protecting the public”), abrogated by 1994 amendment to Vt. Const. c. II, § 40; Saunders v. Hornecker, 344 P.3d 771, 780–81 (Wyo.2015) (“the purpose of bail in Wyoming is to ensure the defendant's presence to answer the charges without excessively restricting the defendant's liberty pending trial” [emphasis omitted] ).17

In accord with this view, courts in several states have concluded that their respective constitutions do not allow the use of financial conditions of release as a means of ensuring that a defendant remains detained pending trial. For example, in People ex rel. Sammons v. Snow, 340 Ill. 464, 173 N.E. 8 (1930), the petitioner was charged with vagrancy but had a history of convictions for violent offenses, as well as pending indictments for other offenses. Id., at 465–66, 468, 173 N.E. 8. The trial court set bail at $50,000, indicating that the purpose was to ensure that the petitioner could not obtain release. Id., at 469, 173 N.E. 8. On appeal, the Illinois Supreme Court concluded that setting bail for purposes of preventive detention violated the right to bail under the Illinois constitution:18 “[The petitioner's criminal] record may be taken into consideration in fixing the amount of bail which would be reasonably sufficient to [e]nsure his attendance to answer this comparatively minor charge. But bail to answer this charge cannot be fixed with reference to securing his appearance to answer [for] the other crimes with which he is charged, or at an unreasonable amount for this charge, merely to detain and imprison him. His record, his character and his criminal activities and tendencies may well be taken into account to increase the amount of bail which should be required of him over that which would be required of an ordinary offender but do not justify fixing the bail on this charge of vagrancy for the purpose of keeping him in jail.... The amount of $50,000 could have no other purpose than to make it impossible for him to give the bail and to detain him in custody, and is unreasonable.”19 Id., at 468–69, 173 N.E. 8.

The Supreme Court of Missouri came to the same conclusion in State ex rel. Corella v. Miles, 303 Mo. 648, 262 S.W. 364 (1924). At that time, the Missouri constitutional provisions guaranteeing the right to bail and prohibiting excessive bail were essentially identical to that of our 1818 constitution. Compare Mo. Const. 1875), art. II, §§ 2420 and 25,21 with Conn. Const. (1818), art. I, §§ 13 and 14. Relying on both provisions of the Missouri constitution, the Supreme Court of Missouri recognized that “[t]he purpose of giving bonds is to secure the appearance of the defendant at trial, and when the [c]onstitution forbids excessive bail it means that bail shall not be more than necessary to secure that attendance.” State ex rel. Corella v. Miles, supra, at 651, 262 S.W. 364. “Since the only purpose of bond is to secure the appearance of the defendant at the trial, any bail fixed at more than is necessary to secure that appearance is excessive within the meaning of [the constitutional prohibition on excessive bail].” Id., at 651–52, 262 S.W. 364. The court further observed that “[t]he bail bond must be fixed with a view to giving the prisoner his liberty, not for the purpose of keeping him in jail. If, in order to keep him in custody, the bond is ordered at a sum so large that the prisoner cannot furnish it the order violates [the right to bail under the Missouri constitution]. For that is saying the offense is not bailable when the [c]onstitution says it is.”22 Id., at 652, 262 S.W. 364; see also Gusick v. Boies, 72 Ariz. 233, 235, 236, 238, 233 P.2d 446 (1951) (concluding that $150,000 bail for defendant charged with sodomy and fellatio violated state constitutional provisions guaranteeing right to bail and prohibiting excessive bail, noting that “any bail fixed at more than is necessary to secure [the defendant's] appearance is excessive within the meaning of the [Arizona] constitution ... [and] excessive bail is not to be required for the purpose of preventing the prisoner from being admitted to bail” [citation omitted] ); State ex rel. Hemby v. O'Steen, 559 S.W.2d 340, 341, 342 (Tenn.Crim.App.1977) (although trial court set bail at $25,000 and declined to reduce bail because defendant was “threat to his family, and to society, particularly while under the influence of alcohol,” Court of Criminal Appeals concluded that bail was excessive under circumstances, noting that defendant was “confined nearly three months due to his inability to secure bail,” which was “tantamount to a denial of bail”); Simms v. Oedekoven, 839 P.2d 381, 385 (Wyo.1992) (concluding that Wyoming constitution does not permit denial of bail or setting of bail high enough to ensure that defendant remains detained because “either course would violate the provisions of ... the Wyoming [c]onstitution [which guarantees the right to bail]”).23

Finally, it is highly questionable whether the legislature, in amending § 54–64a, intended to authorize courts to set a monetary bond as a means of detaining a defendant solely on the basis of public safety concerns. As I noted previously, when the United States Supreme Court concluded in Salerno that the preventive detention scheme established by the federal Bail Reform Act of 1984(act) did not violate substantive due process, the court emphasized that, because of the procedures required before a defendant may be detained under the act, including the requirement that the government prove by clear and convincing evidence that no conditions of release could adequately protect the safety of the public; see 18 U.S.C. § 3142(e) and (f) (Supp. II 1984); the act was sufficiently narrowly tailored to further the government's compelling interest in preventing crime by arrestees. See United States v. Salerno, supra, 481 U.S. at 751, 107 S.Ct. 2095 (“When the [g]overnment proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, we believe that, consistent with the [d]ue [p]rocess [c]lause, a court may disable the arrestee from executing that threat. Under these circumstances, we cannot categorically state that pretrial detention offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” [Internal quotation marks omitted.] ). Thus, it seems quite clear that, under the due process clause of the fourteenth amendment, “[a] [s]tate may not enact [preventive] detention schemes without providing safeguards similar to those [that] Congress incorporated into the [act].” Aime v. Commonwealth, 414 Mass. 667, 680, 611 N.E.2d 204 (1993); cf. Foucha v. Louisiana, 504 U.S. 71, 81, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (concluding that Louisiana statutory scheme allowing continued confinement of insanity acquittee who no longer suffers from mental illness violates due process because, “[u]nlike the sharply focused scheme at issue in Salerno, the Louisiana scheme of confinement [was] not carefully limited”).

In Connecticut, the bail reform legislation that resulted in the current version of § 54–64a was enacted just three years after the United States Supreme Court issued its opinion in Salerno. Nevertheless, in authorizing courts to set conditions of release for public safety purposes, the General Assembly did not provide for any procedural protections comparable to those that the United States Supreme Court had relied on in upholding the constitutionality of the act. Our legislature did, however, provide for similar protections before a court may revoke the bail of a defendant who violates the conditions of his release, as authorized by this court in State v. Ayala, supra, 222 Conn. at 346–50, 610 A.2d 1162. See General Statutes § 54–64f (b) (requiring state to prove by clear and convincing evidence that safety of any other person is endangered before court may revoke release). The inference to be drawn from this legislative action is clear: cognizant of the due process requirements enunciated in Salerno, the legislature did not intend or anticipate that courts would use a monetary bond as a means of detaining a defendant deemed to pose a risk to public safety. It is apparent, rather, that, in requiring the release of a defendant on conditions “found sufficient to reasonably ensure the appearance of the [defendant] in court and that the safety of any other person will not be endangered”; General Statutes § 54–64a (b)(1); the legislature contemplated that courts would set a monetary bond if necessary to ensure the defendant's appearance but would use only nonfinancial conditions of release for the purpose of ensuring the safety of others. Indeed, any other conclusion would require the presumption that, in enacting § 54–64a (b)(1), the legislature simply chose to ignore the federal due process protections required under Salerno in the case of an arrestee who, like the defendant in the present case, is detained solely on the ground that he poses a danger to others. Obviously, that would be a wholly inappropriate and unjustifiable assumption. See, e.g., Castagno v. Wholean, 239 Conn. 336, 344–45, 684 A.2d 1181 (1996) (“[Because we] read statutes to avoid, rather than to create, constitutional questions ... [we] are bound to assume that the legislature intended, in enacting a particular law, to achieve its purpose in a manner [that] is both effective and constitutional.... [T]his presumption of constitutionality imposes [on] ... this court ... the duty to construe statutes, whenever possible, in a manner that comports with constitutional safeguards of liberty.” [Citations omitted; internal quotation marks omitted.] ).

For all of the foregoing reasons, I agree with the defendant that the imposition of a monetary bond for the sole purpose of ensuring the safety of others deprived him of his right to bail under article first, § 8, of the Connecticut constitution. Although the majority attempts to support its contrary conclusion with certain historical facts, the majority's evidence falls well short of its mark.

For example, the majority notes that, in Ayala, we indicated that the right to bail provision contained in the preconstitutional declaration of rights suggests that ensuring a defendant's good behavior while released during the pretrial period was a legitimate purpose of bail at that time, and that “[t]here is no evidence ... that the framers of the 1818 constitution intended to abandon” that purpose. (Internal quotation marks omitted.) Part I of the majority opinion, quoting State v. Ayala, supra, 222 Conn. at 351, 610 A.2d 1162. The majority reasons that, because courts customarily had the authority, when setting bail, to ensure a defendant's good behavior while the defendant was on pretrial release, the trial court in the present case properly “considered the need to ensure the safety of others, regardless of whether the defendant was a potential flight risk,” and then set a monetary bond “as a means to ensure the safety of other persons.” As I explained previously, however, in Ayala, we were not asked to decide whether article first, § 8, permits a court to set a monetary bond as a means of protecting public safety. In that case, rather, we were concerned with whether the constitution allows the court to set nonfinancial conditions of release to ensure the defendant's good behavior and to revoke bail when a defendant fails to comply with those conditions. See State v. Ayala, supra, at 333–36, 610 A.2d 1162. Our conclusion that a court may revoke the bail of a defendant who endangers public safety by committing a crime in violation of the conditions of his release does not mean that a court may set a monetary bond for the sole purpose of preventing a defendant from obtaining release in the first instance, and we expressly indicated as much in Ayala by clarifying that we were not endorsing preventive detention as a constitutionally permissible practice. See id., 352–53, 610 A.2d 1162.

The majority's reliance on the language of the preconstitutional statutory right to bail is similarly misplaced. First, as I previously explained; see footnote 13 of this opinion; a comparison of the preconstitutional provision with the language of article first, § 14, of the 1818 constitution suggests that the right to bail adopted by the framers of the constitution was broader than that right under the preconstitutional provision. Second, there is no evidence that the preconstitutional provision authorized courts to set bail as a means of ensuring that a defendant remained detained prior to trial, as it provided that “no man's person shall be restrained, or imprisoned, by any authority whatsoever, before the law hath sentenced him thereunto, if he can and will give sufficient security ... for his appearance and good behaviour in the mean time....” Public Statute Laws of the State of Connecticut (1808) tit. I, § 4, p. 24. The phrase “and good behaviour in the mean time ”; (emphasis added); indicates that, consistent with our conclusion in Ayala, courts had the authority to ensure a defendant's good behavior while he was released on bail prior to his appearance in court. This language further suggests that, even if courts were permitted to require financial security for that purpose—and it is far from clear that they were so authorized—they could do so only to the extent that it was necessary to ensure the defendant's good behavior while he was released. This does not mean that courts were authorized to circumvent the right to bail by imposing a financial condition of release as a means of detaining the defendant upon deciding ab initio that he likely would pose a public safety threat if released.

For similar reasons, statutes authorizing courts to require sureties of the peace or good behavior do not support the view that courts may impose a monetary bond as a means of detaining a defendant prior to trial solely on the basis of the court's belief that the defendant would pose a danger to the public if released. These so-called “peace bond” statutes authorized justices of the peace—and now authorize judges of the Superior Court—upon finding that a person posed a specific and imminent threat, to order that person to refrain from engaging in the threatened conduct during a defined period of time and to provide financial security that may be forfeited upon his failure to refrain from such conduct in accordance with the order. See, e.g., General Statutes § 54–56f (authorizing Superior Court judge to require “sureties of the peace and good behavior” from any person who “threatens to beat or kill another ... or ... terrifies or disturbs any person,” or when court finds that “[a complainant] has just cause to fear that another will imprison, beat or kill [him]”); Public Statute Laws of the State of Connecticut (1821) tit. 21, § 36, p. 147 (authorizing justice of peace to require “sureties of the peace and good behavior” from any person who “threaten[s] to beat or kill another,” or “terrif[ies] and disturb[s] the good people of the state,” or when “[a complainant] has just cause to fear that [another person] will imprison, beat, or kill [the complainant]”). Although case law regarding peace bond statutes is sparse, it is apparent that the purpose of the bond is to ensure the good behavior of the principal by imposing a financial penalty on him for failing to keep the peace. Moreover, although peace bond statutes have long granted judges the authority to commit a person to jail for failing to provide the required security, it appears that the period of detention was limited to the next session of the court having jurisdiction over the matter, at which time the court would make further orders regarding the bond. See Public Statute Laws of the State of Connecticut (1821) tit. 21, § 36, p. 148 (providing that justice of peace may commit person who fails to pay bond to jail “until he shall be discharged by due course of law, or until the next session of the county court, in said county; which court may make further order, relating to the subject matter of the complaint”). In contrast to the use of bail to incarcerate a defendant for the duration of his case, there is no indication that peace bond statutes authorized courts to detain a person for any extended period of time, in order to prevent him from committing future crimes, by setting the bond in an amount that the person could not pay.24

Moreover, despite this court's past description of peace bond statutes as “criminal in ... nature”; In re Bion, 59 Conn. 372, 383, 20 A. 662 (1890); that characterization is somewhat misleading. Peace bond statutes plainly do not define a criminal offense, as they authorize courts to order a person to provide sureties of the peace and good behavior regardless of whether the person is charged with a crime. Thus, whereas bail was used as a means of ensuring the appearance of a defendant charged with the commission of a criminal offense, peace bonds were a limited mechanism used only when there were grounds to believe that a person posed a specific threat of future harm in that they imposed a risk of financial loss if the person failed to keep the peace for the duration of the bond.25 Because peace bond proceedings always have been distinct from the process of setting bail in criminal cases, the existence of peace bond statutes at the time of the enactment of the 1818 constitution says little about whether a court setting bail for a person charged with a criminal offense could require a monetary bond on the basis of its belief that the defendant posed a threat to public safety.26

Finally, even if the existence of the peace bond statute had some arguable relevance to the meaning or scope of the right to bail under article first, § 8, it hardly provides sufficient support for the conclusion that a trial court may set bail solely for the purpose of ensuring that a defendant remains preventively detained pending trial due to future dangerousness. Because it has long been understood that the purpose of bail is to ensure the court appearance of a person charged with a crime, whereas the purpose of a peace bond is merely to provide a financial incentive for one who is not accused of a crime to refrain from future misconduct, the existence of the peace bond statute is a slender reed on which to rest the conclusion that preventive detention—which until today has never been endorsed by this or any other court of this state—is authorized under our constitution.

I emphasize that I am not unmindful of or unsympathetic to the concerns expressed by the trial court and the state regarding the need to protect the public from dangerous individuals. When a defendant who is not a flight risk is found to pose a particular threat to public safety, and when, in light of available resources, that threat can be addressed most readily by pretrial incarceration, it may seem reasonable for the court to effectively deny bail by setting a monetary bond that the defendant cannot meet and to order the defendant detained pending trial. Our law, however, provides other mechanisms—mechanisms that do not run afoul of the constitution—that courts may use to protect the safety of the public when confronted with a potentially violent defendant. For example, as this court concluded in Ayala, courts have the authority to impose nonfinancial conditions of release and to revoke bail if a defendant fails to comply with those conditions. See State v. Ayala, supra, 222 Conn. at 347–52, 610 A.2d 1162. Indeed, it appears that the trial court in the present case, following the appropriate procedures, could have revoked the defendant's bail for his commission of a crime in violation of the conditions of his release. See General Statutes § 54–64f. Moreover, if the people of Connecticut believe that courts should have the authority to effectively deny bail solely to protect public safety, they may wish to follow the lessons of other states and to amend the constitution to reflect that view. See footnote 17 of this opinion. As our constitutional history demonstrates, however, the right to bail guaranteed by article first, § 8, simply does not allow a court to order a defendant detained prior to conviction, whether by refusal to set bail or by the imposition of an excessive monetary bond, based exclusively on the likelihood that the accused will commit further crimes if released. Because the trial court in the present case imposed a bond for the sole purpose of ensuring that the defendant, who is undisputedly not a flight risk, would be removed from Whiting and incarcerated pending trial because of his perceived dangerousness, he was denied his constitutionally protected right to bail. Accordingly, I respectfully dissent.


Summaries of

State v. Anderson

Supreme Court of Connecticut.
Nov 3, 2015
319 Conn. 288 (Conn. 2015)

reaffirming principles of Mahoney

Summary of this case from Doe v. Dep't of Mental Health & Addiction Servs.
Case details for

State v. Anderson

Case Details

Full title:STATE of Connecticut v. Francis ANDERSON.

Court:Supreme Court of Connecticut.

Date published: Nov 3, 2015

Citations

319 Conn. 288 (Conn. 2015)
127 A.3d 100

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