Bail system

SIGNIFICANCE: This highly debated practice has been criticized for discriminating against poor and minority arrestees; it has also been criticized for the practice of preventive detention, which uses exorbitant bail to keep accused offenders from committing crimes while awaiting trial.

The United States bail system operates on the premise that some arrested individuals can be released prior to their appointed court date by leaving an amount of money with the court. Individuals are expected to return for their subsequent court appearance to have the amount of bail returned to them. Many argue that this practice discriminates against poor arrestees who cannot afford a monetary bail and thus must remain incarcerated while awaiting trial.

Tradition in English Law

The bail system in the United States is rooted in the traditional court systems of England. In feudal England (prior to the Battle of Hastings in 1066), law was dispensed by judges who would travel from county to county. Sheriffs would typically keep accused offenders in local jails with the promise to turn the offender in when the judge returned. As the number of offenders increased and jail space became limited, offenders were occasionally entrusted to the custody of a friend or relative who would ensure their appearance. In some cases, these individuals were required to sign a bond promising a specific sum of money to the king if the accused failed to appear when the judge next visited the area.

Over time (and eventually in the American colonies), the practice of having an individual step forward for an accused was replaced by the use of financial security, or monetary bail. In exchange for freedom prior to trial, the accused would deposit a certain amount of money with the court, which would be returned following appearance. Even before the colonization of America it was recognized that the practice discriminates against individuals who cannot afford to leave a monetary bail. Arrestees who could not afford to leave bail were frequently incarcerated until their appearance at trial, a time period that could encompass years. Thus, the first formal regulations governing the use of bail were written in England in the year 1275. These statutes set forth specific conditions under which bail could be imposed, defining which crimes were “bailable” and which were not. That is, they specified for which crimes bail must be denied and the accused must be incarcerated prior to trial. Laws forbidding excessive bail eventually appeared in England, but not until they were included in the English Bill of Rights in 1688.

History of the American Bail System

Like the English system, early Americans also protected against excessive bail. The Eighth Amendment to the US Constitution begins with the phrase, “Excessive bail shall not be required.” The meaning of this phrase, however, has not been successfully decided by the US Supreme Court. For example, does excessive bail refer to the defendant’s ability to pay, or does it relate to the seriousness of the crime committed? In addition, is there a constitutional right to bail?

The Judiciary Act of 1789 gave offenders a right to bail unless arrested for a capital offense. For a capital offense, maximum penalties can consist of life imprisonment or death. Assuming that these offenders may be likely to flee, considering the severity of punishment, bail is typically denied. Thus, every defendant in a noncapital case was guaranteed to receive bail. The appropriate amount of bail was not discussed in the Judiciary Act of 1789.

A recommended or appropriate amount of bail was not dealt with in the United States until 1951, when the Supreme Court, in Stack v. Boyle, decided that bail must be of sufficient amount to ensure the defendant’s appearance at trial. In other words, the amount of bail must be enough to assure the defendant’s appearance, but it cannot be more than that amount, or else it would be considered excessive. The vagueness of this decision has left many experts speculating about the appropriate amount of bail.

Types of Bail

The general bail system is relatively simple: judges must make a decision for every offender regarding the likelihood that the offender will appear for trial. They take several factors into account in making this decision, usually including prior arrest record, whether the defendant has appeared at previous hearings, stable family ties, and steady employment. After judges weigh these factors, they make a determination about how likely the defendant is to appear at trial. If offenders are classified as good risks—that is, if they are likely to appear for trial—they are typically released on their own recognizance. Release on recognizance (ROR) allows offenders to remain free before trial with the expectation that they will appear at the appropriate time.

Not all offenders are judged as good risks for appearance. For those expected to be bad risks, or those who are unlikely to appear at trial, some type of bail is usually required. While bail itself involves leaving some type of financial security with the court, the type of security can vary. The most obvious type of bail is typically called a cash bond, and this occurs when the defendant turns over money in the exact amount of bail to the court. Money is not the only type of bail that a defendant can leave with the court. In some cases, a defendant can post a property bond instead, which entails leaving property (personal possessions) with the court to ensure appearance. If the defendant does not appear for the next court appearance, all money and property are forfeited to the court.

Courts are aware that not everyone has the financial ability to post the exact amount of bail or to put up a substantial amount of property. For these individuals, a deposit bond is available. In a deposit bond, the accused offender deposits only a portion of the full bail amount to the court. If the defendant fails to appear, the deposit is kept by the court. If the defendant appears for trial, the majority of the bond is returned, with a small percentage kept by the court to cover court costs.

Finally, the most common type of bail is a surety bond. In this arrangement, a third party (not the court nor defendant) promises the court that if the defendant does not appear, they will turn over the amount of bail to the court. In exchange for this service, the defendant pays a fee to the third party. Usually, this third party is a bailbondsman.

Bailbondsmen

When defendants are required to pay bail prior to release, they may enlist the aid of a bailbondsman in securing funds. Bondsmen are independent businessmen who loan bail money to defendants with only a small amount of cash used as a fee. Bondsmen typically require 10 percent of the amount of bail for the fee. They use part of this fee to purchase a surety bond from an insurance company, which actually pays the bail if the defendant does not appear. In addition, bondsmen usually require some collateral as assurance that the defendant will not default on the loan. Many bond businesses also serve as pawn shops in their spare time, selling the collateral left by those who jump bail. Not all defendants will qualify for a bondsman’s services. If defendants have a prior history of jumping bail, they will most likely be denied the bondsman’s service.

Even those defendants judged as good risks for the bondsman’s service sometimes jump bail. When a defendant fails to appear for trial after securing a bondsman, the bailbondsman has legal authority to retrieve the defendant. The bondsman hires individuals referred to as “bounty hunters” or “skip tracers,” people who search for those who jump bail. These skip tracers have virtually unlimited discretion in apprehending the defendant. Unlike state and local police officers, skip tracers are allowed to cross state lines to retrieve individuals who jump bail and are allowed to enter a residence without an arrest warrant. This power and the potential of its abuse have made bounty hunters highly controversial both socially and legally.

A major criticism of the bailbondsman trade is the ease with which corruption can flourish. Officers of the court, for example, are sometimes paid by bondsmen to refer defendants to their offices. These officers are typically given kickbacks for each defendant referred to the bondsmen. Judges are not immune from inappropriate behavior—some judges may set unreasonably high bail so that defendants are forced to utilize the bondsman’s services. In return for these “referrals,” judges are paid by the bondsman. Finally, the bondsman trade also discriminates against indigent offenders, as most poor people cannot afford the fees. Activists have also accused the insurance industry of driving the bail bonds market as a low-risk means of making millions of dollars in profits, noting that such a system is virtually unheard of elsewhere around the world.

Bail Reform

During the 1960s, it became apparent that the United States bail system was not operating as it was designed. Judges were accused of having an excessive amount of discretion in setting amounts for bail. In addition, judges were responsible for setting bail based on which defendants were at high risk for flight and which were not. These decisions were supposed to be based on criminal characteristics, such as the seriousness of the crime committed and prior appearance history. It became clear, however, that among the factors taken into account in the assessment of flight risk were race and sex. Thus, judges’ decisions were discriminatory against certain racial groups and against male offenders.

Another form of discrimination emerged in the practice of pretrial detention. Although the primary purpose of bail is to assure a defendant’s appearance at trial, there is another purpose. Preventive detention is the practice of holding arrestees prior to trial so that they cannot commit crimes during the time between their arrests and court appearances. If a defendant is deemed to be a danger to the community during the pretrial period, a high amount of bail might be set in order to keep the arrestee locked up. Judges are responsible for making the determination regarding the “dangerousness” of an offender. Again, it was found that these decisions were influenced by noncriminal characteristics such as sex and race. Thus, the type of discrimination that appeared when assessing risk of flight also occurred when judges attempted to assess how likely an offender was to commit a crime while awaiting trial.

In the face of these problems, a significant bail reform movement developed. Beginning during the early 1960s, bail came to the forefront as a serious problem within the criminal justice system. The Bail Reform Act of 1966 was an attempt to limit judicial discretion and remove discrimination from the bail process. There were two important developments that came from the Bail Reform Act of 1966. First, judges were expected to release all defendants on their own recognizance unless the judge had some good reason to set bail. In other words, the judge had to have solid grounds for setting bail. Second, “pretrial service agencies” were created to collect information about defendants, thus allowing the judge to have more—and more correct—information about each defendant.

Although preventive detention was a reality in the bail system, there were no laws in the United States stating that it was legal. The second bail reform movement occurred during the early 1970s, and it focused on the issue of legalizing preventive detention. In 1970, the District of Columbia enacted a law that authorized the detention of arrestees without bail if they were deemed a danger to the community. This was the first statute to set standards for the detention of arrestees for preventive reasons.

The issue of preventive detention was not a legal one until the year 1984. In that year, the United States bail system was a central focus of the Comprehensive Crime Control Act of 1984. The Bail Reform Act of 1984 legitimated two federal judicial practices that were informally used before 1984. First, this act gave judges the power to assess defendants on their level of “dangerousness” to the community if released. It gave federal judges the legal right to use preventive detention. While the District of Columbia had its own provisions for preventive detention in 1970, it was not until 1984 that federal judges were given that right. Second, judges were given the right to deny bail in certain circumstances. Traditionally, bail was denied to offenders arrested for capital crimes; the Bail Reform Act of 1984 permitted judges to deny bail to those offenders who were judged to be at extremely high risk for nonappearance. Most notable in this group of offenders were drug traffickers, who were usually able to make extremely high bail and then flee the country.

The Bail Reform Act of 1984 was challenged in 1987, when United States v. Salerno was heard before the Supreme Court. This case challenged the idea of preventive detention, arguing that incarcerating alleged offenders violates their right to due process of law. Opponents of preventive detention argue that incarcerating offenders because of potential threat violates the presumption of innocence to which every arrestee is entitled. The Supreme Court did not agree with Salerno and upheld the judicial right to preventive detention. As long as judges have convincing evidence that the offender is likely to commit a crime while awaiting trial, they may set bail at a level higher than the typical amount.

Despite the changes brought by bail reform in the 1960s and 1980s, the US bail system continued to face significant criticism through the end of the twentieth century and into the twenty-first. The passage of the Adam Walsh Amendments (AWA) to the Bail Reform Act of 1984 in 2006 imposed stricter, mandatory bail rules on those accused of crimes involving minors. This was challenged as a violation of the intent of the 1984 act and the basic constitutional rights of defendants. As the issues of mass incarceration and prison overcrowding earned greater public attention, many activists linked these problems to the money bail system and called for major reforms. The reform movement was also marked by its politically bipartisan nature, with both conservatives and liberals at times voicing criticisms of the existing system.

In 2014, New Jersey citizens took a major step toward comprehensive bail reform by passing the Criminal Justice Reform Act to allow courts to determine pretrial detention in criminal cases. The New Jersey system, which entered into law at the beginning of 2017, all but dismantled the traditional bail system in the state by forcing prosecutors to convince the court of the need to detain a defendant before trial and otherwise allowing non-monetary conditions for release. An important component was the use of an algorithm to help determine a defendant's threat to public safety, ultimately informing a judge's decision on detainment or release. The algorithm, known as the Public Safety Assessment (PSA), was developed by the Laura and John Arnold Foundation (LJAF) and was also adopted by Arizona, Kentucky, and several individual counties around the country, though not to the same level as in New Jersey.

Within a year of its implementation, the New Jersey bail reform program was credited with reducing the state's jail population by 20 percent. While some observers noted challenges or flaws, including cases in which released defendants committed crimes, many legal experts praised the reforms. The bail bonds industry, however, fought against the new system that essentially made their work obsolete. Meanwhile, organizations such as the Vera Institute of Justice (Vera) noted that 2017 appeared to be a watershed year for bail reform, with various courts reconsidering money bail either voluntarily or due to legal pressure. Charitable groups raising funds to post bail for those who could not afford it also drew media attention, and civil rights organizations continued efforts to increase public awareness of the effects of the traditional bail system. Still, bail reform at the federal level faced significant obstacles. A US Justice Department general guideline supporting bail reform released in 2016 under the administration of President Barack Obama was revoked in late 2017 by President Donald Trump's Attorney General Jeff Sessions on the grounds of government overreach. While President Joe Biden has indicated that he would like to end cash bail because it is unfair to Americans who are incarcerated because they do not have the money to pay their bail, as of 2024, no legislation regarding bail has been passed. As of 2024, Washington, DC, Illinois, New Jersey, New Mexico, Arizona, Alabama, Colorado, Kentucky, and Maryland have moved to end cash bail.

Trends and Statistics

The World Prison Brief and Institute for Criminal Policy Research reported that as of 2021, there were about 451,400 pretrial/remand prisoners in the United States, a rate of 136 pretrial/remand inmates per 100,000 people, compared to a rate of around 40 pretrial/remand inmates per 100,000 people worldwide. With over 60 percent of the US jail population not convicted, the trend of mass incarceration has been deemed a major issue, and one that costs tens of billions of dollars annually, according to Vera. The Vera Institute found that by 2018 the median money bail amount across the country was $10,000, while the median pre-incarceration income of people in jail was less than $15,000 in 2018. Studies have also consistently shown that those defendants held pretrial are statistically more likely to be poor or working class and of a racial or ethnic minority. These trends and issues fuel ongoing calls for more comprehensive bail reform, though supporters of the traditional system point to statistics indicating that bailbondsmen clients are more likely to appear at trial.

Bibliography

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Petis, Lisel. "Navigating Bail Reform in America: A State-by-State Overview." R Street, 5 Mar. 2024, www.rstreet.org/research/navigating-bail-reform-in-america-a-state-by-state-overview/. Accessed 21 June 2024.

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