Bail in the United States

History of bail in the United States

In pre-independence America, bail law was based on English law. Some of the colonies simply guaranteed their subjects the protections of that law. In 1776, after the Declaration of Independence, those that had not already done so enacted their own versions of bail law.

Section 9 of Virginia's 1776 Constitution states "excessive bail ought not to be required..." In 1785, the following was added, "Those shall be let to bail who are apprehended for any crime not punishable in life or limb...But if a crime be punishable by life or limb, or if it be manslaughter and there be good cause to believe the party guilty thereof, he shall not be admitted to bail." Section 29 of the Pennsylvania Constitution of 1776 states that "Excessive bail shall not be exacted for bailable offences: And all fines shall be moderate."

The prohibition against excessive bail in the Eighth Amendment is derived from the Virginia Constitution, on which Samuel Livermore commented, "The clause seems to have no meaning to it, I do not think it necessary. What is meant by the term excessive bail...?" As of 2009, the Supreme Court has not decided whether the constitutional prohibition on excessive bail applies to the States through the Fourteenth Amendment.^[1]

The Sixth Amendment to the Constitution, like the English Habeas Corpus Act of 1679, requires that a suspect must "be informed of the nature and cause of the accusation" and thus enabling a suspect to demand bail if accused of a bailable offense.

In 1789, the same year that the United States Bill of Rights was introduced, Congress passed the Judiciary Act of 1789. This specified which types of crimes were bailable and set bounds on a judge's discretion in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge.

The Judiciary Act states, "Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein."

Although the Eighth Amendment prohibits excessive bail, there is no inherent Constitutional right for a Defendant to be offered bail in the first place. In 1966, Congress enacted the Bail Reform Act of 1966, which changes that by giving non-capital defendants a statutory right where a Constitutional right is lacking, to be released, pending trial, on his personal recognizance or on personal bond, unless the judicial officer determines that such incentives will not adequately assure his appearance at trial. In that case, the judge must select an alternative from a list of conditions, such as restrictions on travel. Individuals charged with a capital crime, or who have been convicted and are awaiting sentencing or appeal, are to be released unless the judicial officer has reason to believe that no conditions will reasonably assure that the person will not flee or pose a danger. In non-capital cases, the Act does not permit a judge to consider a suspect's danger to the community, only in capital cases or after conviction is the judge authorized to do so.

The Bail Reform Act of 1966 marked a major overhaul of the bail system in the United States, forcing courts to not needlessly detain defendants. It requires that decisions consider family and community ties, employment history, and past record of court appearances. However, for those defendants who are unable to raise the required money despite demonstrating they are a minimal flight risk, the Act provides little protection. It also mandates that judges not consider the perceived threat a defendant would be to his or her community if granted pretrial release.^[2]

The 1966 Act was particularly criticized within the District of Columbia, where all crimes formerly fell under Federal bail law. In a number of instances, persons accused of violent crimes committed additional crimes when released on their personal recognizance. These individuals were often released yet again.^[3]

The Judicial Council committee recommended that, even in non-capital cases, a person's dangerousness should be considered in determining conditions for release. The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges to consider dangerousness and risk of flight when setting bail in noncapital cases.

In 2008, the New York Times wrote "posting bail for people accused of crimes in exchange for a fee, is all but unknown in the rest of the world".^[4]

Current federal law

In 1984 Congress replaced the Bail Reform Act of 1966 with new bail law, codified at United States Code, Title 18, Sections 3141-3150. The main innovation of the new law is that it allows pre-trial detention of individuals based upon their danger to the community; under prior law and traditional bail statutes in the U.S., pre-trial detention was to be based solely upon the risk of flight.

18 U.S.C. § 3142(f) provides that only persons who fit into certain categories are subject to detention without bail: persons charged with a crime of violence, an offense for which the maximum sentence is life imprisonment or death, certain drug offenses for which the maximum offense is greater than 10 years, repeat felony offenders, or if the defendant poses a serious risk of flight, obstruction of justice, or witness tampering. There is a special hearing held to determine whether the defendant fits within these categories; anyone not within them must be admitted to bail.

The Bail Reform Act of 1984 is the most recent landmark piece of legislation passed on bail reform, an issue often swept under the radar. This act served as direct refutation and override to the previous Bail Reform Act of 1966, which decreed that judges must not consider the perceived threat a defendant may be to his or her community in the determination of bail. This faced much criticism because defendants would sometimes commit crimes while waiting for trial, and many fought for the reversal of this piece of legislation. The 1984 Bail Reform Act did exactly that, stating that a judge must order pretrial detention if a defendant was deemed a risk to his or her community.^[5]

In 1987, the Supreme Court upheld the 1984 Act's provision providing for pretrial detention based on community-danger in United States v. Salerno.

In 2006, the Adam Walsh Amendments (AWA) to the Bail Reform Act of 1984 were passed, in response to a highly publicized case of sexual abuse and murder of a minor. The amendments state that any persons accused of a crime involving a minor must be confined, under curfew, and must report regularly to a law enforcement agency. The AWA are regarded as an attempt by the federal government to curb sexual abuse, though its efficacy is debated.^[6]

State laws

Bail laws vary from state to state. Generally, a person charged with a non-capital crime is presumptively entitled to be granted bail. Some states have enacted statutes modeled on federal law that permit pretrial detention of persons charged with serious violent offenses, if it can be demonstrated that the defendant is a flight risk or a danger to the community.

As of 2008, only four states, Illinois, Kentucky, Oregon and Wisconsin, had abolished commercial/for-profit bail bonds by bail bondsmen and required deposits to courts instead.^[4] As of 2012 Nebraska and Maine in addition to the aforementioned Illinois, Kentucky, Oregon and Wisconsin prohibited surety bail bonds.^[7]

Some states have very strict guidelines for judges to follow; these are usually provided in the form of a published bail schedule.^[8] These schedules list every single crime defined by state law and prescribe a presumptive dollar value of bail for each one. Judges who wish to depart from the schedule must state specific reasons on the record for doing so. Some states go so far as to require certain forfeitures, bail, and fines for certain crimes.^[9]

In Texas, bail is automatically granted after conviction if an appeal is lodged, but only if the sentence is fifteen years imprisonment or less. In Tennessee, all offenses are bailable, but bail may be denied to those accused of capital crimes.^[10]

Types of bail

In the United States there are several forms of bail used, which vary from jurisdiction. "The dominant forms of release are by surety bond, i.e. release on bail that is lent to the accused by a bond dealer, and non-financial release."^[11]:2

1. Surety Bond: By a surety bond, a third party agrees to be responsible for the debt or obligation of the defendant. In many jurisdictions this service is provided commercially by a bail bondsman, where the agent will receive 10% of the bail amount up front and will keep that amount regardless of whether the defendant appears in court. The court in many jurisdictions, especially states that as of 2012 prohibited surety bail bondsmen – Oregon, Nebraska, Wisconsin, Illinois, Kentucky and Maine^[12] – may demand a certain amount of the total bail (typically 10%) be given to the court, which is known as surety on the bond and unlike with bail bondsmen, is returned if the defendant does not violate the conditions of bail. The bail agent guarantees to the court that they will pay the forfeited bond if a defendant fails to appear for their scheduled court appearances, so the third party must have adequate assets to satisfy the face value of the bond.^[13] In turn, the Bond Agency charges a premium for this service and usually requires collateral from a guarantor. The bail agent then posts a bond for the amount of the bail, to guarantee the arrestee's return to court.^[14]
2. Recognizance (ROR): When an accused is released on recognizance, he or she promises to the court to attend all required judicial proceedings and will not engage in illegal activity or other prohibited conduct as set by the court. Typically a monetary amount is set by the court, but is not paid by the defendant unless the court orders it forfeited. This is called an "unsecured appearance bond" or release on one's own recognizance.^[14]
3. Unsecured bail. This is a release without a deposit but it differs from ROR in that the defendant must pay a fee upon breaching the terms of the bail.^[15]
4. Percentage bail. The defendant deposits only a percentage of the bail's amount (usually 10%) with the court clerk.^[15]
5. Citation Release also known as Cite Out. This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear at an appointed court date. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken.^[14]
6. Property Bond – the accused or a person acting on his behalf pledges real property having a value at least equal to the amount of the bail. If the principal fails to appear for trial the state can levy or institute foreclosure proceedings against the property to recover the bail. Used in rare cases and in certain jurisdictions. Often, the equity of the property must be twice the amount of the bail set.^[14]
7. Immigration Bond – used when the defendant that been arrested is an illegal immigrant. This is a federal bond and not a state bond. The defendant deals directly with either the Department of Homeland Security (DHS) or the Bureau of Immigration and Custom Enforcement (ICE). The typical cost associated with this specialty bond is often fifteen to twenty percent of the original bond amount.^[16]
8. Cash – typically "cash-only," where the only form of bail that the Court will accept is cash. Court-ordered cash bonds require the total amount of bail to be posted in cash. The court holds this money until the case is concluded. Cash bonds are typically ordered by the Court for the following reasons: when the Court believes the defendant is a flight risk, when the Court issues a warrant for unpaid fines, and when a defendant has failed to appear for a prior hearing. Cash bonds provide a powerful incentive for defendants to appear for their hearings. If the defendant does not appear as instructed, the cash bond is forfeited and a bench warrant is issued. If the defendant shows up for their scheduled court appearances, the cash is returned to the person who posted the bond. Anyone including the defendant can post a cash bond. If the defendant posts his own bond, the Court will deduct fines and costs from the bond before returning any balance.^[17]
9. Pretrial Services – a defendant is released to the supervision of a pretrial services officer, similar to a probation officer. In most cases defendants have no financial obligation to be supervised. The Pretrial Services Programs can include phone or in-person check-ins, drug testing, court date reminders, and any other condition the judges deems necessary.
10. Combinations – courts often allow defendants to post cash bail or surety bond, and then impose further conditions, as mentioned below, to protect the community or ensure attendance.
11. Conditions of release – many varied non-monetary conditions and restrictions on liberty can be imposed by a court to ensure that a person released into the community will appear in court and not commit any more crimes. Common examples include: mandatory calls to the police, regular check-ins with a Pretrial Services Program, surrendering passports, home detention, electronic monitoring, drug testing, alcohol counseling, surrendering firearms.
12. Protective order, also called an 'order of protection' or restraining order – one very common feature of any conditional release, whether on bail, bond or condition, is a court order requiring the defendant to refrain from criminal activity against the alleged crime victim, or stay away from and have no contact with the alleged crime victim. The former is a limited order, the latter a full order. Violation of the order can subject the defendant to automatic forfeiture of bail and further fine or imprisonment.

Criticisms of bail

Bail Reform is the concept arguing that current bail policies and legislature need to be revised and reevaluated due to its discriminatory and ambiguous nature.^[18] Current bail policies tend to be discriminatory towards defendants who come from a low socioeconomic background. Current bail policies tend to be ambiguous because laws are open to interpretation thus allowing for many unjust exceptions where economic privilege overrides policy even when a defendant has a high perceived flight risk.^[19] Today, the bail system relies on the security of money instead of people. Although the bail system is supposed to be based on a defendant’s possibility of fight, its discriminatory and ambiguous nature proves that it is not the most effective nor just system. The recognition of these inconsistences in the system invoke consideration for alterative solutions.^[20]

Moreover, a court’s decision to grant or deny bail has a direct impact on the outcome of a criminal case. Incarcerated defendants are significantly less able to help in his/her defense for freedom in comparison to someone on bail who is unrestricted or perhaps conditionally restricted to home confinement. They are also unable to arrange meetings with suspected witnesses, and/or provide their attorney with important information about the case, thus creating logistical barriers. People that are denied bail are more likely to plead guilty in thoughts that they will lose at trial. Those denied bail are often sentenced to longer amounts of time than those who are granted pretrial release.^[21] Additionally, incarceration already has adverse effects resulting in many defendants' inability to maintain employment, access mental and physical healthcare, and engage in constant communication with their family and friends.^[18]

Bail Reform is also grounded on the current state of commercial bail establishments in which there exists both benefits and limitations. Some benefits include protecting the presumption of innocence, relieve jail overcrowding, helps the courts manage case overloads, and providing some (very little) cost-saving benefits for taxpayers. Some limitations include discrimination against the economically disadvantaged, abuse of power, and a rising risk of wrongful imprisonment. Despite various reform effort, the commercial bail industry continues to thrive, making profits of $20 million in surplus profit.^[22] But, the bail bonds industry has not survived because it is socially efficient, rather because the people who are making public policy decisions are heavily influenced by those profiting from the bail bonds industry. The bail bonds industry prioritizes capitalism and privatization over justice and support for defendants.

Many critics propose that the prison-industrial complex should switch to a more strict and fair system that is based upon the risk of pre-trial release, instead of being based upond resources. Current bail policies fall short of maintaining individualized and equal judicial determination of bail, are very costly to the defendant, and, in general, are of little benefit to the greater public.^[23]

Bail determination

Legally, bail determination is based on four factors: seriousness of the crime, ties to the community, the flight risk posed by the defendant, and the danger posed by the defendant to his or her community.

However, it is well documented that in reality, bail determination also takes into account extraneous factors. There have been various documented studies that showcase judicial bias, where a defendant’s race, class, and/or gender affect their bail sentence.^[24] Further, there is concern that great variability across judges yields variability in decisions for identical candidates. The reason for such disparity is that different judges assign different weights to factors such as flight risk, community ties, et cetera.^[25] This is an oft cited reason as to why bail reform is necessary, as the current level of ambiguity in the bail decision making process often leads to unfair and disparate outcomes.

Discrimination in bail decisions

There is reason to believe that a correlation exists between class status and bail decisions. Recent analysis of data taken from Florida bail hearings revealed that indigent defendants with public defenders were more likely to be denied bail when compared to those with retained (hired) counsel, but that when they were awarded bail, it was set lower. Several suggested explanations for this result include higher skill level of retained counsel and prison overcrowding.^[26] Many prison systems face overcrowding in the modern area of mass incarceration, and setting unusually low bails appear to be the judge's way of relieving pressure for local prisons.

The current American bail system has also been accused of causing the mounting disparity between the treatment of white collar and blue collar criminals, most popularly seen in the widely publicized cases of Bernie Madoff and Marc Dreier. Madoff and Dreier, despite being huge flight risks, were granted bail simply because they had the money to pay the count exorbitant sums. This is in accordance to the current interpretation of the Bail Reform Act of 1984, which allows the wealthy to avoid pretrial detainment by paying for highly restrictive measures that ensure constant supervision. The result is that poorer citizens deemed even less of a flight risk are held in often terrible conditions, while high flight-risk white collar criminals are allowed to be confined in the comfort of their own homes. Bail reformists claim that this is a direct violation of the Fourteenth Amendment's Equal Protection Clause, which states that laws must be applied against all citizens equally.^[27]

Moreover, bail policies and bail decisions have been demonstrated to be applied disproportionately harmfully against black and Latino defendants, particularly males.^[28] This can be attributed to internalized racial prejudices among judges and bail officers, and also to how current bail policies fail to protect them from such discrimination. When combined with the bail system's favor towards the wealthy, it is found that people of color of low socioeconomic backgrounds suffer most in the justice system, a further violation of the Equal Protection Clause.

Bail and conviction

Limited attorney access

An attorney's ability to defend their client is greatly hampered when their client is placed in pretrial detainment. Jailed defendants are difficult to work with due to restricted access and visiting hours, and have minimal time with their attorneys when compared to those who are granted pretrial release. This lack of coordination between the attorney and defendant makes it impossible to craft a strong defense, given that the defendant will often lack witness coaching.^[26] Defense attorneys that specialize in criminal trial have gone as far as to say that pretrial detention limits a defendants ability to exercise his or her constitutional rights.^[29]

Juror bias

In 2014, a study done over 975 New Jersey cases tracked a defendant's ability to set bail and the final outcome of their trial, and concluded that pretrial detention adversely impacts the length of sentencing in cases of conviction. That is to say, within the same offense type, those unable to post bail received longer sentences than those able to.^[24] There have also been other studies that indicate that pretrial detainment sets the odds against the defendant, reducing their chance of acquittal. Attorneys attest that jurors are almost always aware of defendants' bail status, which creates an implicit bias against their client.^[29]

Domino effect

Bail's purpose is to ensure that a defendant does not abscond, and it was never intended to influence the outcome of the trial or be an indicator of the defendant's guilt. It has been argued that bail decision outcomes' clear influence on the trial outcome is a perversion of the justice system, creating a domino effect that negatively impacts those that are rich and powerless. Lacking resources leads to pretrial detainment, which in turn can lead to a guilty conviction.

Long-term impact

Youth

Pretrial release conditions placed on youth are largely ineffective, often increasing criminal behavior by means of violating those conditions. This means that bail conditions ultimately create a cycle of criminality, trapping juveniles into the prison system rather than helping them escape it.^[30] This effect on the youth community is a large reason why activists lobby for bail reform, seeking to prevent the next generation from being trapped in the school-to-prison-pipeline.

Monetizing justice

The problem of the widest scope and currently the most pressing is the monetizing of the justice system. where the growing integration of the justice and free market systems will have far ranging effects. Academics have predicted that the current commercial bail system will eventually expand to probation and parole. Under this framework, inmates would be granted early release/parole in the same manner as bail, by putting up collateral as insurance for their good behavior. For example, the conservative, powerful, yet secretive organization American Legislative Exchange Council (ALEC) has already managed to push these changes into existence in several states across the America. The tight industry based network between bondsmen, courts, and law enforcement has already bred much corruption in the bail system, and the inclusion of parole would render the justice system entirely commercialized, leaving it rife with inequality.^[31]

Commercializing justice also opens the door toward exploitation of those dealing with the court system, and bail bondsmen have become the prime example of this. Having created an extremely lucrative business based on the indigent's desperation and inability to pay bail, they are a consequence of the free market merging with the judiciary branch.^[28]

Solutions

In response to differences across judges resulting in different outcomes for identical candidates, there have been two suggested solutions. One is to specifically instruct judges on how to deal with cases where judicial disagreement is known to be high, and the other is to implement a strict set of bail guidelines that all judges must adhere to, with no exceptions.^[25] The second solution, however, presents a problem in that it reduces the justice system's flexibility, and loses humanity. Many reformists prefer a more individualized bail procedure, citing the importance of considering circumstances and how no set of guidelines can adequately and fairly address every possible scenario.^[6] Fixing outcome disparity while retaining judicial flexibility remains a paradox that bail reformists have yet to solve, and is a point where many activists diverge.

The wealthy class' ability to pay for extraordinary measures that mitigate their flight risk is also an issue with several suggested fixes. The solution is to directly amend the Bail Reform Act of 1984 to explicitly prohibit this sort of unfair treatment, and there are two proposed amendments. The first is to award everyone pretrial release regardless of their ability to pay, and the second is to cease the practice of permitting the wealthy to pay for their pretrial release.^[27] The former, though most egalitarian, is highly unlikely, given that it is impractical to assume that the government will take responsibility for the costs that this would entail.

Another common criticism is that the Supreme Court has never head on addressed the issue of bail, leaving the state to interpret the Eight Amendment and its Equal Protection Clause as they will. The fix would then be to federalize and incorporate bail laws so that defendants will have uniform experiences even across state lines. Within some states, those held in pretrial detention often have to wait unreasonable amounts of time to be granted trial, which leads to those who are denied bail pleading guilty for no other reason than to finish their trial. Incorporation (federalization) of bail laws would somewhat mitigate the damage done to the indigent by current bail laws.^[32]

Yet another suggested fix is to completely alter the premise of the bail system and remove money from the equation entirely. This would mean jails changing bail criteria from being based on ability to pay and instead purely to flight risk.^[28] Unfortunately, this might mean that rather than helping the indigent gain pretrial release, most defendants of any class would be faced with pretrial detention, which comes with all the negative consequences on trial outcomes.

Taking it one step further would be complete abolition of the concept of pretrial detainment, which is closely tied to the prison abolition movement, which seeks to put a halt to the growing prison-industrial complex. This would require a shift in societal worldview, and would require tearing down the system and then rebuilding it to be something else.

Economic perspectives

Another way to approach the issue of bail reform is to look at not from a humanitarian but economic perspective. Using data from the 1981 Philadelphia Bail Experiment, a mathematically rigorous cost-benefit analysis of bail-setting was conducted, to approximate the probabilities of defendants committing crimes or absconding while on pretrial release. This study used the economic definition of socially optimal, defined to be the outcome which results in the minimum incurred cost by society. The result of the analysis revealed that the socially optimum value at which to set bail is much higher than the current average.^[33] In fact, the value is closer to what average bail was before the Bail Reform Acts of 1966 and 1984, which means that the best course of bail reform would actually be regressive in nature, reverting to older bail policies.

References