Bail

A common description of the American criminal process begins with the arrest of a person accused of crime who, after booking and possible interrogation by the police, is brought before a judge or judicial officer to have bail set. At this first judicial appearance, the judicial officer may read the charges to the accused, explain the need for and availability of counsel, schedule the defendant's next court date and then set an amount of bail that the defendant must post to gain release before trial. In popular understanding, bail is thought of as a dollar amount and bail system refers to the decision process and financial arrangements, often through bondsmen (compensated sureties), that determine release or confinement of defendants, before adjudication of their charges in the courts.

This traditional picture of bail, associating pretrial release with dollars to be paid by the defendant, represents a narrow conception of the bail function. With a history traced back to the Magna Carta, the statute of Westminster, and the emergence of English common law, bail originally had a broader meaning. Rather than denoting the practice of requiring an amount of currency or other form of financial assets from an accused for release, bail referred to the means employed to provide assurance that a person accused of a crime would face judicial proceedings. Depending on the historical epoch, this assurance could take different forms, from a person's oath to be present to stand trial when the judge made his appearance in the village or town, to placing an individual's property (such as cattle or other domestic animals) or the property of a close relation in the temporary custody of a local official to obtain greater certainty that an individual would be present for the judicial proceedings.

In the United States over the last century, with the growth of population centers and industrialization—and with the increasingly impersonal and anonymous nature of urban life—an individual's word or deposit of valued property was deemed insufficient to ensure that the defendant would appear for trial and submit to the judgment of the court. As the use of arrangements once workable in smaller, more rural societies became less practical, they were increasingly replaced by the use of cash bail to guarantee a defendant's release. The dollar became the currency for determining pretrial release or detention in America—in the form of cash bail or bond. The defendant's prospects for remaining free during adjudication were increasingly shaped by the economics of the larger, and more urban, society. Those who remained in jail before trial were persons who could not afford to post the dollar amount that had been set, while those who gained release somehow could. Dollars became the judge's assessment of the defendant's trustworthiness—of the likelihood that the defendant would attend court if released. The ability to post the required cash became the determinant of pretrial release.

The emphasis on financial terms in determining pretrial release or detention also created an irresistible opportunity for private entrepreneurs to enter the judicial process. For profit, bondsmen (more formally referred to as compensated sureties) could broker the release of detained defendants who could not afford their bail by being paid a premium (usually around 10 percent of the total bail). A defendant held in custody on $10,000 bail, for example, would pay a bondsman $1,000 to gain release before trial. In an adaptation of the earlier practice of having third parties vouch for the released defendant's appearance in court, the bondsman would guarantee the appearance of the defendant in court by putting up a surety bond. In exchange for the premium exacted from the defendant, the bondsman would in theory be responsible to the court for the defendant's entire bail in the event the defendant fled prosecution. This practice was based on the expectation that bondsmen would act as responsible third parties and make certain their clients would appear in court—for fear of having to forfeit the total amount of bail. At the same time, based on profit motive, bondsmen would have a strong incentive to write bonds for jailed defendants—and thus facilitate responsible release—because the premiums they accepted amounted to clear earnings, as long as the defendants appeared.

Advocates of bail reform questioned this primarily financial conception of the bail function, preferring to consider the bail decision as a pretrial release decision. In making the pretrial release decision instead of focusing on the dollars required for release, a judicial officer should determine whether the individual will await adjudication of criminal charges at liberty in the community, and if so under what conditions, or remain in jail under pretrial detention. Reform measures introduced in the 1960s sought to encourage greater use by judges of nonfinancial conditions of release in pretrial release determinations. These initiatives placed great emphasis on personal recognizance release (ROR or "release on own recognizance") and on conditions of supervision or participation in release programs that would help to ensure the defendant's appearance in court. Sparked by the pioneering efforts of the Vera Institute in New York City, bail reform advocates also promoted the establishment of pretrial services agencies to collect information about defendants for the pretrial release decision and to supervise them, if necessary, during the release period.