Pretrial Release


Some People Are Too Dangerous To Release On Bail

In Oregon, as well as in almost every other state, a person accused of murder can be held in jail without bail pending trial. However, prior to the passage of 1996, in cases other than murder and treason, the accused had a right to bail and "the primary consideration in pretrial release decisions is the risk of the accused person not appearing rather than the safety of the victim or the public" (quote from the 1999 voters pamphlet). This meant that if you beat a person to death, you were held without bail, but if you beat the person to within an inch of his life and threatened to finish the job later, you had a right to bail. The case of Robert Holliday illustrates that this is not an academic issue.

In 1996, the voters approved Measure 40. One of the provisions of Measure 40 was that a person accused of a serious violent crime could be denied bail. However, in 1998, the Oregon Supreme Court threw out Measure 40 on narrow technical grounds.

In 1999, the issue was presented to the voters again in the form of Measure 71.

Here is some language from the Measure, with emphasis added:

. . . The right to have decisions by the court regarding the pretrial release of a criminal defendant based upon the principle of reasonable protection of the victim and the public, as well as the likelihood that the criminal defendant will appear for trial. Murder, aggravated murder and treason shall not be bailable when the proof is evident or the presumption strong that the person is guilty. Other violent felonies shall not be bailable when a court has determined there is probable cause to believe the criminal defendant committed the crime, and the court finds, by clear and convincing evidence, that there is a danger of physical injury or sexual victimization to the victim or members of the public by the criminal defendant while on release.

Despite this language, opponents claimed without qualification that Measure 71 denies bail to criminal defendants. They neglected to mention that this denial was conditional on probable cause and clear and convincing evidence.

Fortunately, voters saw through this distortion and passed Measure 71 by a margin of 58% to 42%.

Here are some arguments from the 1999 voters pamphlet:


How would you feel if your child, spouse, sibling or parent were assaulted, raped or murdered?

Now, how would you feel if you learned that the person who committed this crime was previously arrested for a serious crime, held in jail, and released by our criminal justice system?

Some of your fellow citizens know this feeling.

The family of Donna Louise Smith knows this feeling. She was murdered by a person with a lengthy criminal record who was released on bail awaiting trial for kidnapping, sodomy and rape! (Oregonian, 10/26/96)

The family of Robert Holliday knows this feeling. He was kidnapped, tortured, and buried alive by a man who was released on bail awaiting trial for previously kidnapping and torturing him! (Oregonian 3/27/98)

The family of a 13 year-old Oregon girl knows this feeling. She was kidnapped, raped and sodomized by a person with 49 arrests and at least 15 convictions who was released on bail awaiting trial on burglary! (Oregonian, 4/3/98)

Sarah Zimmerman knows this feeling. Her finger was shot off and her eye was shot out by a man who was released on bail awaiting trial for attempted murder in a previous attack on her! (Oregonian, 12/9/98)

These cases and many others like them constitute a disgraceful lapse of our justice system.

Under our current law, except in the case of murder, the safety of victims and other innocent people is not a primary consideration when setting bail. The primary consideration is whether the defendant is likely to appear for trial if released on bail.

Please, to protect innocent people, change this law. Vote yes on Measure 71. And vote yes on the other victims' rights measures, 69, 70, 72, 73, 74, and 75.

Howard Rodstein
Crime Victims United

{This information furnished by Howard Rodstein, Crime Victims United.)



If you are accused of a crime (other than murder or treason) the Oregon Bill of Rights guarantees you the right to bail. That right has been Oregon law for 140 years.

This proposed measure would abandon that basic right. It would allow preventive detention even if you are innocent.

An accusation does not prove guilt. Guilt must be proved beyond a reasonable doubt in a trial by jury. This measure would allow a judge to jail you for months while you wait for trial. Public anger at some crimes will demand that judges lock up a person accused of the crime, even if the charges are later dropped or the accused is acquitted.

For 140 years, Oregon has successfully prosecuted and convicted offenders under its existing Bill of Rights. Nothing new requires sacrificing the constitutional right to bail. Vote against Measure 71.

Hans Linde
Former Oregon Supreme Court Justice

Betty Roberts
Former Oregon Supreme Court Justice

Jacob Tanzer
Former Oregon Supreme Court Justice

Claudia Burton
Professor of Law

(This information furnished by Andrea R. Meyer, Crime Victims For Justice.)

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