EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, August 7, 2015

Capital vs. Noncapital First-Degree Murder & The Likelihood of Getting a Bail Package

I've written a few posts in which I've tried to determine the percentage of suspects charged with noncapital first-degree murder who are given some type of bail package. As I've noted, approximately 55-60% of "murder" suspects are given some type of bail package, but "murder" includes capital murder, noncapital first-degree murder, second-degree murder, and voluntary manslaughter.

I suspect that the percentage varies across jurisdictions, but I thought I'd start with the jurisdiction that has the country's most famous homicide statute: California.

California's homicide statute is contained in California Penal Code Section 187. "One Eight Seven" is so synonymous with murder that it was actually the title of a Samuel L. Jackson moviePenal Code Section 187 covers capital murder, noncapital first-degree murder, and second-degree murder.

Like many jurisdictions, California has a bail schedule.

The purpose of this bail schedule is to fix an amount upon which a person who is arrested without a warrant may be released from custody prior to appearance in court. At and after a defendant's first appearance, pursuant to Penal Code section 1269b(b), the amount of bail, if any is allowed, shall lie with the sound discretion of the judicial officer before whom the defendant appeared, and may be greater or less than the amount set forth in this schedule, subject to the provisions of Penal Code section 1275. This schedule may also be used by a magistrate in fixing bail pursuant to Penal Code section 815a at the time an arrest warrant is issued, the amount of which lies with the sound discretion of the magistrate

Under California's bail schedule, capital murder, i.e., murder "with special circumstance" is not bailable. Conversely, all other murders have a bail amount of $1 million (which can later be adjusted up or down in the discretion of the judge after a suspect's first appearance based upon prior convictions, drug addiction, etc.).

This is explained more fully in a Los Angeles Times article:

[In the Phil Spector case, the State] has not alleged any special circumstances that would make the case a capital murder.

As a result, Spector qualified for $1-million bail, which he posted Monday by providing the usual 10% to a bail bondsman....

There are 207 defendants whose cases are scheduled in the downtown Los Angeles criminal courthouse who face noncapital murder charges. Theoretically, they could get out of jail on $1-million bail unless they are parole or probation violators. Most, however, do not have $1 million in assets or the $100,000 to pay out for bond, which they would not get back under any circumstances.  

Maryland, by way of contrast, does not have a bail schedule.



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Hmm so Adnan's case would have been a special circumstance murder in California right? Because the state alleged that the murder was a lying in wait attack.

Posted by: rocknroll | Aug 7, 2015 12:09:03 PM

rocknoll: A special circumstances murder in California is one that allows for the imposition of the death penalty or life without parole based the presence of one or more special circumstances. If Adnan's case took place under current California/federal law, he couldn't get the death penalty or life without parole. So, he could not be charged with special circumstances murder.

Posted by: Colin | Aug 7, 2015 12:11:43 PM

But if it had happened in 1999, it would have been okay you mean, right? Because the age restriction was imposed in 2005? In 1999, Adnan would have been eligible for the death penalty in California, because the state alleged that it was a lying in wait crime & there was no minor-exception?

And are you sure that the Special Circumstances test for bail is identical to that for bail?

Posted by: rocknroll | Aug 7, 2015 12:30:39 PM

*oops meant to say "identical to that for the death penalty."

Posted by: rocknroll | Aug 7, 2015 12:31:21 PM

You had to be at least eighteen years old at the time of the crime to be given the death penalty in California in 1999.

Posted by: Colin | Aug 7, 2015 12:35:37 PM

I see. But it seems to me that "special circumstances" can still apply to a minor? see here http://www.latimes.com/local/la-me-juveniles-20140506-story.html Would this have meant that Adnan could have been denied bail + received life w/o parole?

Posted by: rocknroll | Aug 7, 2015 12:45:24 PM

rocknroll: Here's an example from last December:


Six teens charged with first-degree murder and assault with a deadly weapon after severely beating two homeless men, killing one of them. This would usually be a special circumstances murder (special circumstance #14), but bail was set at $1 million for all six teens.

Posted by: Colin | Aug 7, 2015 12:55:59 PM

Okay - is this a statutory result? has there been a liberalization of this area of the law since then?

I guess I'd be more curious about the result in 1999, as the Undisclosed proposition is that were it not for then Adnan would have received bail.

Posted by: rocknroll | Aug 7, 2015 1:09:54 PM

rocknroll: It depends on the jurisdiction. For instance, in Alabama:


the recommended range is $50,000-no bail allowed for a capital offense and $15,000 to $75,000 for noncapital murder.

Posted by: Colin | Aug 7, 2015 1:17:42 PM

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