Bail is a pretrial release with or without conditions while a defendant is awaiting his or her criminal trial. There is also post-conviction bail, in which conditional and nonconditional release may also be considered for convicted offenders while they are waiting for their sentences and while their appeals are pending. Release on bail is often weighed as an alternative to pretrial detention of suspects or defendants.
Bail decisions invariably fall within the purview of the judiciary; judicial officers, also referred to as bail authorities, determine and decide pretrial release or pretrial detention. The twofold criteria for all forms of release on bail are flight risk and future dangerousness to society.
There are legislative or statutory laws that extend conditional rights to defendants to be released on bail, as well as constitutional safeguards to these rights that the bail shall not be excessive. This is a universally and formally acclaimed due process right, which evokes presumption of innocence and humanitarian consideration. Hence, bail shall be viewed not only as a matter of legal rights but also as an ethical issue. It is an issue of justice, fairness, equity, respect, equal protection, and sensibility.
Release on bail provides suspects or defendants of nonviolent crimes the opportunity to be free while effectively preparing cases for their defenses, fulfilling their family responsibilities, continuing working, maintaining their community ties, and suspending punishment until found guilty beyond reasonable doubt.
The most extensively utilized type of bail in the United States is a secured bail in which a financial guarantee or surety bond is promised or posted to the court by a third party. In the United States, commercial bail is the principal form in which a licensed and insured bond agents facilitate the release as surety or guarantor, after collecting a 10 percent (of the total posted bail amount) nonrefundable payment from the defendant. The bond agent assumes responsibility to ensure the appearance of the defendant in court, risking forfeiture of the money bond they posted on behalf of the defendant. The court also verifies that the source of the bond money is clean and was not obtained with any type of illegal means. The other variations as alternative to commercial bail are (1) release on recognizance (ROR), in which low-risk defendants are released without financial bond with only a promise to appear in court; (2) refundable cash bail and deposit bail, which are posted with county and district courts; (3) use of summons in lieu of arrests; and rarely (4) property bail in which real property, such as a home, is used to post bail.
The history of bail goes back a little more than seven centuries, and is traced to the English Common law tradition in the 13th century. In 1275, the Statute of Westminister for the first time classified crimes as bailable and nonbailable offenses and limited the unchecked power to issue detention orders of the local sheriff. Subsequently, the English Parliament enacted the Habeas Corpus Act in 1677. The act empowered the magistrates as bail authorities, permitted the release of defendants who committed bailable offenses on recognizance with surety, as well as brought focus for the first time on the characteristics of offenders and the gravity of the offenses as conditions for release on bail.
Most important, the 1689 English Bill of Rights, the precursor to the U.S. Bill of Rights, prohibited the setting of bail with an excessive monetary value. The Eighth Amendment to the U.S. Constitution echoes this constitutional protection of due process rights by regulating unlimited judicial discretionary power. Similarly, both Pennsylvania’s and Virginia’s constitutions, ratified in 1776, prohibit excessive bail. It has been observed that the right to bail is explicitly guaranteed by federal and state legislation, while these rights are implicitly safeguarded by the U.S. and state constitutions, limiting the power of the judiciary in setting excessive bail. This means that the Eighth Amendment is not executable without attendant and specified statutory (substantive) laws pertaining to release on bail. The statutes affirm bail as a fundamental but a qualified right; whereas, the constitutional amendments safeguard the reasonable implementation of the right.
In this respect, the 1789 Judiciary Act provided a general framework of bail laws in the United States. It stipulated which types of offenses were to be bailable, and it ascertained judicial discretion about the pretrial release or pretrial detention of defendants even on capital offense cases. The act also highlighted factors, such as the seriousness of the crime and the strength of incriminating evidence, to be accounted for the determination and decision of pretrial release on bail.
Particular attention was given to bail reform in the criminal justice system beginning in the 1960s. Much of the credit for invigorating such concern goes to Arthur Beeley and Caleb Foote, who had critically examined the bail system and process in Chicago in the 1920s and in Philadelphia and New York in the 1950s, respectively. Their studies showed the unnecessary and unfair overuse of pretrial detentions, particularly against poor defendants for nonviolent offenses in overcrowded jails.
The Manhattan Bail Project was launched in 1961 in New York City under the Vera Institute, with a budget of $95,000 to address such serious concerns as the bail rights of poor defendants and jail overcrowding. The project primarily assisted poor and low-risk youth detainees. These detainees, who were eligible for pretrial release, were identified through interviews on the basis of strong community ties.
The Bail Reform Act was enacted by the U.S. Congress on June 22, 1966. The act addresses the release on recognizance or release on personal bond in noncapital federal cases with a guarantee to appear at a future trial. It also enumerates factors, such as the nature of the offense and the offender, ties to his or her family or community, employment history, and mental condition, for judges to consider for bail release with or without financial bond. Furthermore, imposition of travel restrictions, pretrial supervision, and regular reporting were stipulated as control conditions of the defendant, addressing public safety concerns while defendants are free on bail. The 1974 federal reform to achieve constitutionally mandated speedy trials with the 100-day rule also complemented bail reforms.
The federal bail reforms culminated in comprehensively revised and additional statutes in 1984. The Bail Reform Act of 1984 legitimized pretrial detention so long as the release of the defendant “will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community” (§3141(c)). The act also requires a mandatory pretrial detention hearing and a revocation hearing in open court, in which the defendant enjoys the rights to a defense counsel, to cross-examine government witnesses, and to present evidence in his or her favor, as well as appeal rights in case of denial of bail. The act further sets the procedural parameters of “standard of proof” (preponderance of evidence), admissibility of “hearsay evidence,” and “burden of persuasion” (on the government) about flight risk and future dangerousness. The act also requires that detention orders shall be provided in writing with clear and convincing “finding of facts” and “statements of reason.” One of the unique features in the act is the incorporation of sentence enhancing provisions for new crimes committed while free on bail, that is, up to one year for a misdemeanor and up to 10 years for a felony to be added to the penalty of the new crime.
According to the act, the conditions for freedom on bail include, among other things, custodial supervision, abstention from commission of crime, abstention from drugs and alcohol, enrollment in educational and rehabilitation programs, staying away from victims and witnesses in the case, no possession of firearms, and forfeiture of cash deposit or property in case of “jumping” bail. The local and state court jurisdictions, by far and large, have salient features about the substantive and procedural aspects of release on bail similar to the federal laws, including such release criteria as flight risk and future dangerousness, detention and bail revocation hearings, and preconditions of release while awaiting trial or sentencing or pending appeals.
In United States v. Salerno (1987), the Bail Reform Act of 1984 was challenged in the U.S. Supreme Court for violation of the due process rights of the two defendants who were charged with multiple offenses of racketeering. At issue was whether the defendants’ pretrial detention (denial of bail) was a violation of their due process rights protected under the Fifth and Eighth Amendments, and that the defendants were punished before convicted or found guilty. The U.S. Supreme Court decided the pretrial detention by the district court was constitutional because (1) the legislative intent of the U.S. Congress was “regulatory” (protection of public safety) and not “punitive,” community safety outweighs the freedom of high-risk individuals, and analogously, the government has “compelling interest” to maintain public order; and (2) the Eighth Amendment does not accord individuals with the right to be released on bail.
- Foote, Caleb. “The Coming Constitutional Crisis in Bail: Part I.” University of Pennsylvania Law Review, v.113/7 (May 1965).
- Friedman, Lee. “The Evolution of a Bail Reform.” Policy Sciences, v.7/3 (September 1976).
- The Federal Judicial Center, 2nd ed. The Bail Reform Act of 1984 (18 U.S.C. §§ 3141–3150, 3156). http://www.fjc.gov/public/pdf.nsf/lookup/bailref.pdf/$file/bailref.pdf (Accessed March 2013).
- S. v. Salerno, 481 U.S. 739 (1987). Cornell University Law School. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0481_0739_ZO.html (Accessed March 2013).
- Wice, Paul. Freedom for Sale: A National Study of Pretrial Release. Lansing: University of Michigan Press, 1974.
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