Anticipatory Bonds for Probation Violations

“Arrest on first positive drug screen. $50,000 secured bond.”

“Hold without bond for any probation violation.”

May a judge sentencing a defendant to probation include instructions such as these in the judgment suspending sentence?

No statute gives a judge authority to set an anticipatory bond as part of a probationary judgment. To the contrary, G.S. 15A-1345(b) says that a person arrested for a probation violation must be taken without unnecessary delay before a judicial official to have release conditions set in the same manner as provided in G.S. 15A-534. I read that provision to incorporate by reference the ordinary procedures for pretrial release for a criminal charge. Those procedures require an evaluation of the person’s dangerousness and risk of flight, based on the factors set out in G.S. 15A-534(c) (the nature of the offense, the evidence against the defendant, family ties, employment, intoxication, etc.). Most of those factors are most sensibly evaluated by the judicial official before whom the probationer appears at the time of arrest—not by the judge who sentenced him or her (which could have happened months or years earlier).

I don’t know of an appellate case expressly considering the validity of an anticipatory bond (or requirement to “hold without bond”) ordered in a judgment suspending sentence. The closest appears to be State v. Hilbert, 145 N.C. App. 440 (2001), in which the defendant objected to the trial judge’s imposition of a condition stating “First positive test he is to be immediately arrested and placed under $100,000.00 cash bond to await the probation violation hearing.”

The issue wound up not being properly before the court of appeals (the case in which the condition was imposed was not part of the court’s grant of certiorari). In dicta, however, the court “fe[lt] compelled to urge caution” against the setting of anticipatory probation appearance bonds like this. The court referred to G.S. 15A-1345(b) as the proper procedure to follow. If the trial court wished to address the issue of prehearing release for a violation, the better practice, the court of appeals said, would be to recommend—not order—a bond in a certain amount upon issuance of a violation.

Notwithstanding G.S. 15A-1345(b) and Hilbert, my sense is that some judges regularly impose anticipatory bonds in their probationary judgments. Arguably they are mere recommendations, but there’s no doubt they have an impact on the way the case is managed. Probation officers instructed to arrest upon first violation will do it, even Community Corrections policy (Chapter D) would have directed a different response—perhaps a mere reprimand or referral to treatment—depending on the nature of the violation and the probationer’s assessed risk and needs. Magistrates holding initial appearances for arrested probationers also feel a tension between the probationary order and their statutory responsibility under G.S. 15A-534.

I can understand why judges include such orders in their judgments. Putting a defendant on probation carries a certain degree of risk, and a judge may feel that the assurance of a swift and certain response to any violation will help keep the defendant on the straight and narrow. Nevertheless, anticipatory bonds are of dubious legality, and sometimes more of a hindrance to probation officers than a help. At a minimum, judges may wish to confer with their local Community Corrections leaders to learn more about what conditions give officers the greatest prospects for success with a probationer.